Ravula Hariprasada Rao Vs. The State
 INSC 20 (19 March 1951)
FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND
AIYAR, N. CHANDRASEKHARA
CITATION: 1951 AIR 204 1951 SCR 322
CITATOR INFO :
RF 1964 SC1140 (20) R 1965 SC 722 (11,29) R
1966 SC 43 (4) R 1966 SC 128 (14) F 1971 SC 866 (13)
Criminal law--Mensrea--Motor Spirit Rationing
Order, 1941, cls. 22, 25, 27--Defence of India Rules, 1939, r. 81 (4)--Supply
of petrol without coupons--Omission to make prescribed entries in
coupons--Liability of employer for acts of employees--Construction of statutes.
Unless a statute either clearly or by
necessary implication rules out mens rea as a constituent part of the crime, a
person should not be found guilty of an offence against the criminal law unless
he has got a guilty mind.
Clauses 22 and 25 of the Motor Spirit
Rationing Order, 1941, read with the Defence of India Rules, 1939, do not rule
out the necessity of mensrea. Therefore, where the employees of the licensee of
a petrol filling station supply petrol to a car-owner without taking coupons
and thus act in contravention of the provisions of the said clauses, the
licensee, who was not present when the wrongful act was done and had no
knowledge of it, could not be convicted for contravention of the said clauses
under r. 81 (4) of the Defence of India Rules, 1939.
Clause 27 of the said Order is however
differently worded and imposes a duty on the supplier to endorse or cause to be
endorsed the registration or other identifying mark of the vehicle to which
petrol is furnished and if these particulars are not endorsed by his employees
on the petrol coupons against which petrol is supplied the supplier would be
liable even if he had no knowledge of the wrongful act of his employees.
Srinivas Mall Bairolia v. King Emperor
(I.L.R. 26 Pat.
46, P.C.) and Isak Solomon Macmull v. Emperor
(A.I.R. 1948 Bom. 364) referred to.
CRIMINAL APPELLATE JURISDICTION:Appeal
(Criminal Appeal No. 15 of 1950) from a judgment and order of the High Court of
Madras dated 19th August, 1947, in Criminal Revision Petitions Nos. 1017 and
1018 of 1946 rejecting an application to set aside the conviction and sentence
of the appellant by the Sessions Judge of Guntur under clauses 22 and 27 of the
Motor Spirit Rationing Order, 1941. Special leave was 323 granted by the Privy
Council and the, appeal was originally registered as Privy Council Appeal No.
14 of 1949. The case was subsequently transferred to the Supreme Court.
K. Bhimasankaran (Durga Bai, with him) for
R. Ganapathi Iyer, for the respondent.
1951. March 19. The judgment of the Court was
delivered by FAZL ALI J.--This appeal, which has been preferred after obtaining
special leave to appeal from the Privy Council, is confined to the single
question whether mens rea is necessary to constitute an offence under section
81 of the Defence of India Rules.
The facts of the case are briefly these. The
appellant is the licensee of two petrol filling stations Nos. 552 and 276 at
Guntur but is a resident of Chirala, 40 miles away.
He is a Presidency First Class Bench
Magistrate at Chirala and manages what has been described as a vast business at
several places. Ch. Venkatarayudu and Dadda Pichayya, his employees, were
respectively in charge of the aforesaid filling stations. In 1946, the
appellant and his two employees were tried before the Sub-Divisional Magistrate
of Guntur in respect of offences under the Motor Spirit Rationing Order, 1941,
and were convicted in each of the cases on the 18th July, 1946. In the first
case, the charges against the appellant and the employee in charge of the pump
in question therein were that they on the 27th June, 1945, at Guntur, supplied
petrol to a cars without taking coupons, in contravention of clause 22 read
with clause 5 of the said Order promulgated under rule 81 (2) of the Defence of
India Rules and that they, on the same day and at the same place, accepted
coupons relating to two other cars in advance without supplying petrol, in
contravention of clause 27 of the Order. The charges in the second case were
that the appellant and the employee in the second pump similarly supplied
during the period of 24 hours from 6 a.m. of the 28th June, 1945, petrol to 4
motor vehicles 324 without taking coupons, in contravention of clause 22 read
with clause 5, accepted coupons of three other vehicles in advance without
issuing petrol, in contravention of clause 27, and supplied petrol to two other
vehicles against coupons but without making necessary endorsements and particulars
on the reverse of the coupons infringing thereby clause 27A of the said Order.
The Sub-Divisional Magistrate, Guntur, found the appellant and the employee
concerned in each case guilty of the charges brought against them and sentenced
the appellant (with whose case alone we are now concerned) to a fine of Rs. 30
on the first count an d Rs. 20 on the second in the first case with simple
imprisonment for one week in default, and to a fine of Rs. 20 on each of the
three counts in the second case with one week's imprisonment in default. The
plea of the appellant before the Magistrate was that he was the presiding 1st
Class Bench Magistrate at Chirala, that he was carrying on business in petrol
at various centres through servants and he had issued instructions to them not
to deviate from the rules under any circumstances and that he could not be made
liable for transgression of the rules committed by his employees. The
Magistrate however overruled the plea and convicted the appellant as stated
above. The appellant thereafter preferred an appeal to the Sessions Judge at
Guntur, who, while setting aside the conviction of the appellant on the second
count in each case, confirmed the conviction and sentence in respect of the
other charges, on the 9th September, 1946.
This was confirmed in revision by the High
Court at Madras on the 19th August, 1947. Thereupon, the appellant applied to
the Privy Council for special leave which was granted on the 9th July, 1948, limited
to the single question whether mens rea is necessary to constitute an offence
under rule 81 of the Defence of India Rules.
The question to be decided in this appeal
arises upon the plea taken by the appellant., which has been already referred
to, and the assumption on which the courts below have proceeded in dealing with
the case. The plea of the appellant that he was not present at 325 Guntur when
the alleged offences were committed has not been negatived by the lower courts,
but they have held that he was nevertheless liable, as the question of mens rea
was not relevant to the offences with which the appellant was charged. This
view is set out very clearly in the following passage which may be quoted from
the judgment of the trial Magistrate:
"It is argued on behalf of accused 1
that he is not a resident of Guntur and that he has no knowledge of any
infringement committed by accused 2. If any breach of the rules is committed by
either proprietor or his servant, both are guilty whether they had the knowledge
of the breach or not. The question of mens rea will, of course, affect the
measure of punishment but it cannot affect the conviction (vide 1943, M.L.J.
38) ." Before deciding the question as to how far mens rea is material to
conviction for the offences with which the appellant is charged, it is
necessary to refer to the relevant provisions of the Defence of India Rules and
the Motor Spirit Rationing Order, 1941. Rule 81(2) of the Defence of India
Rules empowers the Central or the Provincial Government to provide by order, in
certain circumstances, for regulating amongst other matters, distribution,
disposal, use or consumption of articles or things and for requiring articles
or things kept for sale to be sold either generally or to specified persons or
classes of persons or in specified circumstances. The Central Government in
pursuance of the authority thus conferred made the Motor Spirit Rationing
Order, 1941, for "securing the defence of British India, the efficient
prosecution of the war and for maintaining supplies and services essential to
the life of the community." Clause 2(d) of the Order defines
"dealer" as meaning a supplier carrying on the business of supplying
motor spirit as a retail business and includes a person having charge of a
supply of motor spirit controlled by Government from which any person is
furnished with motor spirit for private use.
Sub-clause (m) defines "supplier"
as meaning a person carrying on the business of supplying motor 326 spirit.
Clause 5, which is the next relevant provision, runs thus :-"Motor spirit
required for any vehicle not covered by clause 3 or clause 4 shall be furnished
or acquired only against the surrender to a supplier at the time of supply of
valid ordinary coupons or of a valid supplementary coupon and only in
accordance with any conditions or instructions appearing on or attached to the
coupons." Clause 22 lays down:
"No person shall furnish or acquire a
supply of motor spirit otherwise than in accordance with the provisions contained
in this order. "Clause 27 is to the following effect:" No person
shall surrender to a supplier and no supplier shall accept special receipts or
coupons at a time other than the time at which the supply of motor spirit
authorised by the special receipts or coupons or acknowledged by the receipts
is furnished." Clause 27A runs as follows :-"When motor spirit is
furnished against the surrender of one or more coupons, the supplier shall
immediately endorse, or cause to be endorsed, on each coupon so surrendered the
registration or other identifying mark of the vehicle to which the motor spirit
is furnished." Rule 81(4)of the Defence of India Rules, which provides for
the imposition of a penalty, says that "if any person contravenes any
order made under this rule, he shall be punishable with imprisonment for a term
which may extend to three years or with fine or both." It is contended on
behalf of the respondent that though ordinarily a person should not be held
liable for the criminal acts of another and no person can be charged with the
commission of an offence unless a particular. intent or knowledge is found to
be. present, mens tea is not of the essence of the offences with which we are
concerned in this case and the appellant must be held liable for the acts of
his employees. The question raised in this appeal was considered by the Privy
327 Council in Srinivas Mall Bairolia v. King Emperor(1). In that case, the
appellants before the Privy Council were convicted under the Defence of India
Rules relating to the control of prices and were sentenced to terms of imprisonment.
The 1st appellant was acting as Salt Agent for part of the district of
Darbhanga. He had been appointed to this office by the District Magistrate, and
it was his duty to sell to licensed retail dealers the supplies of salt which
were allocated by the Central Government to his part of Dharbanga district. The
second appellant was employed by the first appellant and had been entrusted
with the duty of allotting the appropriate quantity of salt to each retail
dealer, and noting on the buyer's licence the quantity which he had bought and
received. By rule 81 (2) of the Defence of India Rules, the Provincial
Governments were empowered to make orders to provide for controlling the prices
at which articles or things of any description whatsoever might be sold. The
Defence of India Act, 1939, under which the rules were framed, empowered the
Provincial Governments to delegate the exercise of their powers to certain
officers, and the power to provide by order for controlling the prices at which
various articles (among them salt) might be sold, had been delegated to the
District Magistrates. Rule 81 (4) of the Rules provided for the punishment of
persons guilty of contravening any such orders. Both the appellants were
jointly charged with having sold salt on 3 days in July, 1943, to three named
traders, in each case at a price exceeding the maximum price which had been
fixed by order of the District Magistrate. The 1st appellant was also separately
charged, in respect of the same sales, with having abetted the 2nd appellant's
contravention of the order. The trial Magistrate acquitted the 1st appellant of
the substantive offences but convicted him on the 3 charges of abetting. The
Sessions Judge and the High Court in revision confirmed the convictions. The
Privy Council ultimately upheld the conviction of the appellants on the merits
but with regard to the view taken by the High Court that even if the first
appellant was (1) I.L.R. 26 Pat. 46.
328 not proved to have known of the unlawful
acts of the second appellant, he was still liable on the ground that ''where
there is an absolute prohibition and no question of mens rea arises, the master
is criminally liable for the acts of the servant", their Lordships
observed as follows:"With due respect to the High Court, their Lordships
think it necessary to express their dissent from this view.
They see no ground for saying that offences
against those of the Defence of India Rules here in question are within the
limited and exceptional class of offences which can be held to be committed
without a guilty mind. See the judgment of Wright J. in Sherras v. De
Rutzen(1). Offences which are within that class are usually of a comparatively
minor character, and it would be a surprising result of this delegated
legislation if a person who was morally innocent of blame could be held
vicariously liable for a servant's crime and so punishable ' with imprisonment
for a term which may extend to three years.' Their Lordships agree with the
view which was recently expressed by the Lord Chief Justice of England, when he
said: ' It is in my opinion of the utmost importance for the protection of the
liberty of the subject that a court should always bear in mind that, unless the
statute, either clearly or by necessary implication rules out mens rea as a
constituent part of a crime, a defendant should not be found guilty of an
offence against the criminal law unless he has got a guilty mind: Brend v.
Wood(2) '" In our opinion, the view of
the law as propounded by the Privy Council is the correct view, and, applying
it to the present case, it is difficult to hold the appellant guilty of the
offence under clause 22 read with clause 5 of the Motor Spirit Rationing Order,
1941. The language of clause 22 does not lend support to the contention that
even an innocent master will be criminally liable for an act of his servant.
This clause has already been quoted, but, to make the point clear, it may be
stated that it provides that no person shall furnish ...... motor spirit
otherwise than in accordance (1)  1 Q.B. 918, 921. (2) (1946) 110 J.P.
317, 318 329 with the provisions contained in
the Order. The clause is not aimed specifically against a supplier, but is general
in its language, and will hit the individual person, whether he be the supplier
or not, who contravenes the provision. The language of the clause also suggests
that only the person who furnishes motor spirit contrary to the provisions of
the Order will be affected by the contravention.
In the course of the arguments, reference was
made on behalf of the appellant to the decision of the Bombay High Court in
Isak Solomon Macmull v. Emperor(1) which is a case relating to the
contravention of clause 22 of the Motor Spirit Rationing Order. In that case,
the learned Chief Justice, who delivered the judgment, referred to the well
established rule that unless a statute either clearly or by necessary
implication rules out mens rea as a constituent part of a crime, the defendant
should not be held guilty of an offence under the criminal law unless he has a
guilty mind. Relying upon this rule, he held that where a servant sells petrol
to a bogus customer in the absence of coupons m contravention of the Motor Spirit
Rationing Order, and the master is not present at the time nor has he any
knowledge of the supply of petrol by the servants to the bogus customer, the
master cannot be held to be vicariously liable for the act of the servant. In
our opinion, this decision is correct and is directly applicable to the present
We have yet to deal with the third charge in
the second case, which relates to the infringement of clause 27A of the Motor
Spirit Rationing Order. That clause, as already stated, makes it incumbent upon
the supplier to endorse, or cause to be endorsed, the registration or other
identifying mark of the vehicle to which the motor spirit is furnished.
The substance of the charge on which the
appellant has been convicted is that these particulars were not endorsed on
several coupons against which petrol had been supplied.
Here again, the main contention put forward
on behalf of the (1) A.I.R. 1948 Bom. a64.
43 330 appellant was that the appellant
cannot be held guilty inasmuch as the default in question was committed not by
him personally, but by his servants. Having regard to the language of the
clause, however, this contention cannot be accepted. Clause 27A, as we have
already seen, throws the responsibility for making the necessary endorsement on
the supplier. The definition of the word 'supplier' in the Act has already been
quoted, and there can be no doubt that if clause 27A is contravened, a person
who comes within the definition of the word 'supplier' must be held guilty of
the contravention. The object of this clause clearly is that the supplier of
petrol should set up a complete machinery to ensure that the necessary
endorsements are made on the coupons against which petrol is supplied. It is
conceivable that in many cases the default will be committed by the servants of
the supplier, who are in charge of the petrol pump, but that fact by itself
will not exonerate the supplier from liability.
In Mousell Brothers v. London and
North-Western Railway('), Viscount Reading C.J., dealing with a case under the
Railways Clauses Consolidation Act, 1845, observed as follows :-"Prima
facie, then, a master is not to be made criminally responsible for the acts of
his servant to which the master is not a party. But it may be the intention of
the Legislature, in order to guard against the happening of the forbidden
thing, to impose a liability upon a principal even though he does not know of,
and is not party to, the forbidden act done by his servant. Many statutes are
passed with this object. Acts done by the servant of the licensed holder of
licensed premises render the licensed holder in some instances liable, even
though the act was done by his servant without the knowledge of the master.
Under the Food and Drugs Acts there are again instances well known in these
Courts where the master is made responsible, even though he knows nothing of
the act done by his servant, and he may be fined or rendered amenable to the
penalty enjoined by the law. In those [1)  2 K.B.D. 836 at 844.
331 cases the Legislature absolutely forbids
the act and makes the principal liable without a mens rea." In the same
case, Atkin J. expressed the same view in these words :-"I think that the
authorities cited by my Lord make it plain that while prima facie a principal
is not to be made criminally responsible for the acts of his servants, yet the
Legislature may prohibit an act or enforce a duty in such words as to make the
prohibition or the duty absolute; in which case the principal is liable if the
act is in fact done by his servants. To ascertain whether a particular Act of
Parliament has that effect or not regard must be had to the object of the
statute, the words used, the nature of the duty laid down, the person upon whom
it is imposed, the person by whom it would in ordinary circumstances be performed,
and the person upon whom the penalty is imposed. If authority for this is
necessary it will be found in the judgment of Bowen L.J. in Reg. v. Tylor(1).''
In Mullins v. Collins(2), the servant of a licensed victualler having knowingly
supplied liquor to a constable on duty without the authority of his superior
officer, it was held that the licensed victualler was liable to be convicted
although he had no knowledge of the act of his servant. In dealing with the
case, Blackburn J. observed thus:"If we hold that there must be a personal
knowledge in the licensed person, we should make the enactment of no
effect." There are many other cases in England in which the same view has
been enunciated, and some of them have been collected and classified in the
judgment of Wright J. in Sherras v. De Rutzen(3), The principle laid down in
these cases has been followed in several cases in this country also.
In this view, the appeal is allowed in part,
and while the conviction and sentence imposed on the (1)  2 Q B 588.
(3) IQB. 918,922.
(2)  L.,R. 9 Q. B. 292 332 appellant on
the first charge in both the cases are quashed, the conviction and sentence on
the third charge in the second case are affirmed.
Appeal allowed in part.
Agent for the appellants: S. Subramanian.
Agent for the respondent: P.A. Mehta.