D. Stephens Vs. Nosibolla  INSC
13 (2 March 1951)
AIYAR, N. CHANDRASEKHARA FAZAL ALI, SAIYID
MAHAJAN, MEHR CHAND MUKHERJEA, B.K.
CITATION: 1951 AIR 196 1951 SCR 284
CITATOR INFO :
RF 1954 SC 266 (11) F 1955 SC 584 (3) R 1962
SC1788 (4) R 1968 SC 707 (8) R 1970 SC 272 (10) RF 1973 SC2145 (4,8,9) R 1975
SC 580 (4) R 1978 SC 1 (15) R 1986 SC1721 (9)
Criminal Procedure Code, 1898, ss. 417,
439--Revision against order of acquittal--Interference--Guiding principles--Indian
Merchant Shipping Act, XXI of 1923, ss. 25, 26--Supply of seamen-Constitution
of Board by owners of ships and seamen for recruitment of seamen--Levy of one
rupee from each seaman towards expenses of Board--Whether contravenes ss. 25,
26--Giving of muster card permitting appearance at muster--Whether amounts to
"engaging or supplying" seamen.
The revisional jurisdiction conferred on the
High Court under s. 439 of the Code of Criminal Procedure is not to be lightly
exercised when it is invoked by a private complainant against an order of
acquittal, against which the Government has a right of appeal under s. 417. It
could be exercised only in exceptional cases where the interests of public
justice require interference for the correction of a manifest illegality or the
prevention of a gross miscarriage of justice. This jurisdiction is not
ordinarily invoked or used merely because the lower Court has taken a wrong
view of the law or mis-appreciated the evidence on the record.
Ship owners had an organisation in Calcutta
called the Calcutta Liners' Conference and the seamen had an organisation 285
called the Joint Supply Office. As a result of a collective agreement between
the owners of the ships and the seamen's representatives, the Calcutta Maritime
Board which contained an equal number of members representing the Calcutta
Liners' Conference and the Joint Supply Office was established. The seamen
presented themselves before this Board and were given muster cards which
permitted them to appear at the musters where the captains of the ships engaged
seamen. For meeting the office expenses of the Board the owners used to pay Rs.
2 per seaman engaged and after engagement each seaman paid Re. 1 to the owner
as his contribution towards these expenses. The accused was the secretary of
the Liners' Conference and an ex officio honorary joint secretary of the
Maritime Board, and a seaman filed a complaint against him that, as he had
collected Re. 1 from him for the issue of a muster card he had committed an
offence under s. 26 (2) of the Indian Merchant Shipping Act:
Held, that the seamen to whom the master
cards were given by the Maritime Board were not "engaged or supplied"
by the Board or by any of its officers, nor was the sum of Re. 1 which was
levied out of the seaman's wages after he signed an agreement of employment,
remuneration received for providing the man with employment, and the accused
was not guilty of any offence under s. 25 or s. 26 of the Act.
CRIMINAL APPELLATE JURISDICTION : Appeal
(Criminal Appeal No. 19 of 1950) against the orders of the High Court of
Judicature at Calcutta dated 21st January, 1949, and 29th August, 1949, in
Criminal Revision Cases Nos. 1007 of 1948 and 527 of 1949.
S.P. Sinha (S. N. Mukherjee, with him) for
B. Sen for the respondent.
1951. March 2. The judgment of the Court was
delivered by CHANDRASEKHARA AIYAR J.--This appeal comes up before us on special
leave granted by His Majesty's Order in Council and it is directed against
orders made by the Hon'ble Mr. Justice Sen of the High Court of Judicature at
Fort William in Bengal, directing a retrial of the appellant D. Stephens, who
had been acquitted by the Chief Presidency Magistrate of contravening the
provisions of section 26 of the Indian Merchant Shipping Act.
286 The facts that gave rise to this
prosecution are correctly set out in the following two paragraphs which are
quoted from the judgment of the learned Chief Presidency Magistrate:-" The
owners of the ships have an organisation known as the Calcutta Liners'
Conference. The seamen have an organisation know as the Joint Supply Office.
Since 1940-41 the licensed broker system for engagement of seamen had been
abolished. The Calcutta Maritime Board was established as a result of a
collective agreement between the owners of the ships and seamen's
representatives for recruiting seamen. It is a joint negotiating machinery
between the owners and the seamen for direct engagement of seamen by the
owners. The Joint Supply Office does not supply the seamen. The Calcutta
Maritime Board also does not supply nor engage seamen.
The engagement is made by the Captains of the
Ships. The Calcutta Maritime ,Board, at the relevant time, was formed of equal
members representing the Calcutta Liners' Conference (the owners) and the Joint
Supply Office (the seamen).
At the present moment the Government of India
have two representatives in the Calcutta Maritime Board. There are two Joint
Chairmen and two joint Secretaries, one each from each group of the owners' and
Accused Stephens is the Secretary of the
Calcutta Liners' Conference and is a paid officer. His salary is paid by his
employers, the Calcutta Liners' Conference, with contributions obtained from
the owners of the ships whose association the Conference is. The accused is one
of the Joint Secretaries of the Calcutta Maritime Board in his capacity as the
Secretary of the Calcutta Liners' Conference. The Joint Secretaries of the
Calcutta Maritime Board hold honorary posts and receive no remuneration."
"The procedure for recruitment now is that the seamen present themselves
before the Calcutta Maritime Board. They are given muster cards which permit
them to appear at the musters where the Captains of the ships engage the
The Board 287 endeavours to lay down a
procedure for the Captains of the ships while engaging seamen. There is an
excess of supply of seamen over the demand. This had brought in corruption. To
fight out corruption, the Calcutta Maritime Board was conceived to find out a
procedure for the owners of the ships for employing seamen by rotation. For
meeting the office expenses of the Calcutta Maritime Board the owners, at the
relevant time used to pay Rs. 2 per seaman engaged. After signing on, each
seaman pays back the owners Re. 1 as his contribution towards office expenses
of the Calcutta Maritime Board. None of the facts stated above was contested
for the complainant." The complainant Nosibolla alleged that the accused as
Joint Secretary of the Board collected an illegal charge of Rupee one from him
for issue of a muster card and thus contravened section 26 of the Indian
Merchant Shipping Act and that he was, therefore, guilty of an offence within
the meaning of sub-clause (2) of that section. The Chief Presidency Magistrate
acquitted the accused of the charge but on revision the High Court at Calcutta
directed a retrial, holding that the accused clearly contravened the provisions
of section 25 of the Act, and that if the complainant was to be believed when
he said that the accused received Re. 1 before registration, he was also guilty
under section 26 of the Act; and both parties were allowed to adduce additional
evidence. This second trial again ended in an acquittal by the Chief Presidency
Magistrate who came to the conclusion that the accused did not supply or engage
seamen, that he did not receive any payment of Re. 1 for issuing the muster
card to the complainant and that Re. 1 which is collected from the seamen by the
ship-owners after employment by way of deduction from wages is paid not as
remuneration to the accused or any one else, but is really a contribution towards
the expenses of the Joint Supply Office working under the Calcutta Maritime
Board. There was again a revision petition taken to the High Court against this
order of acquittal and it was heard by the same learned Judge as before. He
differed from 288 the Chief Presidency Magistrate on all the material points
and sent the case back again for a fresh trial in a judgment which contains
findings almost amounting to a direction to the Chief Presidency Magistrate to
convict the accused. In the learned Judge's view the issue of a muster card to
seamen amounted to the "supply" of seamen within the meaning of section
25 of the Act. The receipt of Re. 1 was a demand for remuneration within the
meaning of section 26, even if it was ultimately spent for expenses of the
running of the Joint Supply Office and that a demand for payment would by
itself constitute the offence, whether the money was actually received or not.
It is against this interference in revision
that the present appeal was lodged before the Judicial Committee of the Privy
Council on the ground that the jurisdiction to direct a retrial was so exercised
in the case as to constitute. an infringement of the essential principles of
Before entering into a short discussion of
the question whether the view taken by the High Court is right or wrong, it
would be useful to set out the relevant sections of the Merchant Shipping Act.
"24. (1) The Central Government or any
person duly authorised by the Central Government in this behalf may grant to
such persons as may be deemed fit licences to engage or supply seamen for
merchant ships in British India.
(2) Any such licence shall continue for such
period, and may be granted and revoked on such terms and conditions as the
Central Government thinks proper.
25. (1) A person shall not engage or supply a
seaman to be entered on board any ship in British India unless that person
either holds a licence under this Act for the purpose, or is the owner or
master or mate of the ship, or is bona fide the servant and in the constant
employ of the owner, or is a shippingmaster.
(2) A person shall not employ, for the
purpose of engaging a seaman to be entered on board any ship 289 in British
India, any person unless that person either holds a licence under this Act for
the purpose. or is the owner or master or mate of the ship, or is bona fide the
servant and in the constant employment of the owner, or is a shipping master.
(3) A person shall not receive or accept to
be entered on board any ship any seaman if that person knows that the seaman
has been engaged or supplied in contravention of this section.
(4) If a person acts in 'contravention of
this section, he shall for each seaman in respect of whom an offence is
committed be liable to a fine which may extend to one hundred rupees, and, if a
licensed person, shall forfeit his licence.
26. (1) A person shall not demand or receive
directly or indirectly, from any seaman, or from any person seeking employment
as a seaman, or from any person on his behalf, any remuneration whatever for
providing him with employment other than the fees authorised by this Act.
(2) If a person acts in contravention of this
section, he shall for each such offence be liable to pay a fine of fifty
rupees, and, if a licensed person, shall forfeit his licence." On the
facts as admitted or proved in the evidence, it is difficult to see what
offence the accused has committed.
Neither the Calcutta Maritime Board, nor the
Calcutta Liners' Conference supply the seaman. The registration entitles the
seamen to get muster cards which enable them to appear at the musters, and
there, the Captains of the ships select and engage the seamen. It is after this
selection and engagement that the body of shipowners, called the Calcutta
Liners' Conference, pay Rs. 2 to the Calcutta Maritime Board out of which Re. 1
is their Own contribution and Re. 1 is the contribution by the seaman which is
deducted from his wages. There is therefore no supply of a seaman within the
meaning of section 25 of the Act. A number of seamen offer themselves for
employment and they are all gathered together at a 290 place, so that the
shipowner or Captain of the ship may select whomsoever he pleases. There is no
obligation on the owners of the ships to select any particular person, nor is
any such selection made by the Maritime Board either directly or through its
servants for the benefit of the owners and for employment under them. The
Calcutta Maritime Board of which the accused is an honorary Joint Secretary is
an institution that was created in the end of 1947,' with the knowledge, ii not
the approval, of the Government of India as a liaison body or institution to
bring the owners and the seamen together, with reference to the engagement of
seamen for ships. The labour corps is brought into contact with the owners by
the Maritime Board through the Joint Supply Office but the seamen are engaged
by the shipowners or the Captains. To a certain extent, the recruitment is
regulated by the Maritime Board, but it is a misnomer to say that the seamen
are supplied to the owners by the Board or by any of its officers. In his written
statement found at page 28 of the printed book the accused has stated, and it
is not controverted anywhere, that the system of selection of crew through the
agency of Serangs was brought to an end owing to the opposition of the seamen
themselves, who alleged that it resulted in widespread corruption as the
Serangs recruited only those who paid them heavily.
It is fantastic for the prosecution to
suggest that Re. 1 levied out of the seaman's wages after he signs the agreement
of employment amounts to remuneration received for providing the man with
employment. The remuneration paid to the accused which is over Rs. 2,000 a
month is by way of salary from the Calcutta Liners' Conference under whom he is
a paid Secretary. The Calcutta Maritime Board receives Re. 1 per seaman from
the shipowners' association, but this is by way of contribution towards the
expenses of the Joint Supply Office of the Board. This is made perfectly clear
in the evidence given on commission by Mr. C.P. Srivastava, Officer on Special
Duty, Ministry of Commerce, New Delhi, and of 291 Mr. Dikken examined on the
side of the prosecution who says that the contribution is made to meet the
running expenses of the Joint Supply Office and Maritime Board. Mr. Goldwell of
James Finlay & Co., sixth witness for the defence, has stated that the
Calcutta Maritime Board and the Joint Supply Office are financed by the Liners
and that the accused has nothing to do with the engagement of the seamen.
There is also a finding of the Chief Presidency
Magistrate, which has not been set aside, that the allegation of the
complainant that the accused received Re. 1 from him prior to registration of
his name in the Joint Supply Office, has not been substantiated.
It is evident on the facts that the accused
does not engage or supply any seamen and does not demand or receive directly or
indirectly any remuneration for providing any person with employment as a
seaman. The facts leave no room for any doubt that the prosecution has failed
to establish its case.
Mr. Justice Sen says "I fully realise
that, ordinarily this Court ought not to interfere with orders of acquittal.
It should do so only on exceptional
grounds." It is a matter of some regret that this realization by him of
limited nature of the revisional jurisdiction
was not carried into effect but resulted in an order directing the retrial of a
man for a third time for offences which could not be said to have been made out
even prima facie.
The revisional jurisdiction conferred on the
High Court under section 439 of the Code of Criminal Procedure is not to be
lightly exercised, when it is invoked by a private complainant against an order
of acquittal, against which the Government has a right of appeal under
section417. It could be exercised only in exceptional cases where the interests
of public justice require interference for the correction of a manifest
illegality, or the prevention of a gross miscarriage of justice. This
jurisdiction is not ordinarily invoked or used merely because the lower court
has taken a wrong view of the law or mis-appreciated the evidence 38 292 on
record. As already pointed out, there has been no such error in the present
case; on the other hand, it seems to us that on both the previous occasions,
the Chief Presidency Magistrate was right in holding that the accused was not
guilty of any offence under sections 25 and 26 of the Indian Merchant Shipping
The order of the High Court is set aside and
that of the Chief Presidency Magistrate is restored. The accused will stand
acquitted of the charge.
Order set aside.
Agent for the appellant: P.K. Chatterjee.
Agent for the respondent: 1. N. Shroff for