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D E F G H 557 STATE OF GUJARAT & ANR. v. A CHARYA D.PANDEY & ORS. October 12, 1970 [S. M. SIKRI AND K. S. HEGDE, JJ.; Bombay f?ublic Trust Act 1~50 ss. 35(1), 66-8cope o/-ll1ens Rea l/ necessaryingredient. On the allea.ations, that the Isl accused, who was theAcharyaof apublictrust withdrewmonies from the trustfundto meet bistaxliabili· ties, thatthe other accused as trusteesconnivedat the c·ontravcnt!ons of thelaw,and thatthe monies were r•imbursed laterthe accuaed wereconvictedunder 11. 3S(i) and 66 of the Jjlombay Public TrustAot, 1950. In appeal,the Hi11h Court acquitted.the accused, holdln11 that therequisite m•n• r1a wu notproved a11aln1t the ht accused, andthat theotheraccuaed were not trusteesat thetimeof the Qllepdcffence. Oisml•olna theappeal, HELD: Thebroadprinciplesaccepted by Courts with reaard to the questionwhether a crimecan be said to have been committedwithout thenecessary mens rea. are : Where an offence is created'by statute, how· ever,comprehensiveand unqualift.ed the languaaeof thestatute,it. is usuallyunderstood as silently requiri~g th{!t t~e element of mens 1·ea should be importedinto the definition of thecrime, unless a contrary intention is expressedor implied.In otherwords,the plainwords of statute are read subject to a presumption,which may be rebutted,that the general ruleof lawthatno crime can· be committed unless there is """'' rea hasnotbeenousted by the particularenactment. Mens rta means some blameworthy mental condition.whether constituted. by knowledgeor intentionor otherwise.But this ruleshas several ex· ceptions. [560 HJ The principalclasses of exceptions may be reducedto three. One is a classof 4cU; whichare notcriminal in anyrealsense,but are acts which in thepublicinterestprohibited und~r a penalty.Another class compreherdssome, and perhaps all, public nUisances. Lastely,there may be casesin whichalthoughthe pro'°eding is criminal in form,it is reallyonly a summarymode of enforcinga civilright.But exceptin suchcases as these, there must in generalbe guiltyknowledge on the part ofthedefendant,or of some one whomhe hasput in his placeto act forhim,generallyor in theparticularmatter in orderto constituteand offence.The presentcase fallswithinthe fiistcategory [561 GJ Section35(1) of theBombayPublic TrustAct createsa quasi· criminal offence. It is a regulatoryprovision. It is enacted with a view tosafeguardthe interestof the public regardingtrust money.The offence in question is punishableonly with fine. The convictionunder that does notcarry any stigma.The languageof theprovisionappears to make i!s contravention an absolute liability.Consequently.the requirement of mens rea cannotbe readinto it. [563 A] · CRIMINAL APPELLATE JURISDICTION: CriminalAppeals Nos. 2 to 12 of 1968. 558 SUPREME COURT REPORTS [1971] 2 S.C.R, Appeals by special Jeave from the judgmentsand ordersdated A June 25, 1965and February 20, 1967 of the GujaratHigh Court in Cr. AppealsNos. 828 of 1965 etc. Urmila Kapoor woo S. P. Nayar, fortheappellants. V. K. Sanghi, for the respondents. TheJudgmentof the Conrt was deliveredby Hegde, J, These appealsarise fromtwo complaints field by theCharityCommissioner,State of Gujaratunder s. 35 ( 1) readwith s. 66 of theBombay Public TrustAct, 1950 (which willhereinafterbe referred to as the Act).Jn thosecomplaints 10 accused were proceededagainst. It was said that theywere thetrusteesof two trusts known as "Shree Swaminarayan Mandir" and "NarayanMandir".The !st accused in boththose com· plaints was the Acharya,the I 0th was said to be the Mahan! andthe otheraccusedthe associatedtrustees at therelevant time.It was said that all thes.e trusteeswere appointedunder twodifferentschemes framed by the High Courtof Bombay. Thetrialcourtconvictedthe accusedbut in appealthe High Court of Gujaratacquitted all of them. It heldthat there is no proof to showthat accused2 to 10 were the trusteesof the institutionsat thetimethe allegedoffencetook place. It allow edthe.appealof the!st accused on thegroundthat the prose cutionhas failed to provethe required mens rea on hispart. TheStateof Gujaratand the CharityCommissionerhave brought theseappealsafter obtainingspecial leave from this Court. Inthe firsr complaintthe allegation is thatthe 1st accused withdrewfrom the trustfunds in Samvatyear 2014a sumof Rs. 30277 /53 for meeting his income-taxliability and thathe reimbursedthat amountonly in Samvat year 2018.The alle gationagainstthe otheraccused is that theyallowedthe 1st accused to utilise that amount in contraventi~n of the law.In thesecondcomplaintthe allegation is thatthe1st accused withdrew· a sumof Rs. 40653/56 P. in the Samvatyear 2015 again for meetingincome-taxliability and that he reimbursed thatamountalsa in theSamvatyear 2018and thatthe other accusedconnivedat thecontraventionof thelawby the1st accused. Accused2 to 10 pleadedthat theywerenot the trustees . of theinstitutionsconcerned during the Samvatyears 2014 and 2015 andnor werethey awareof thewithdrawalsand as such they are notguiltyof anyoffence.The !st accusedadmitiedthe with drawalsmentionedin thecomplaintsbut his case was thatthe B D E F G H I A B c GUJARAT v. PANDEY (Hegde, J.) 559 withdrawals were madefrom his HathuKhata,a Khatabuilt. up by himand his ancestorsand h:e has p,ut ·back that amount. So far as accused2 to 10 areconcernedthere is absolutely· no evidenceagainst them. The only witness_ examinedon ~- half of thecomplainantnamely the LegalAdvisorof the Charity Commissionerdid not giveany evidenceagainst them. No material was placedbefore the court to show thattheywere thetrusteesof thetrustsin questionduring the Samvatyears 2014and ·2015. This is not a casewherea trusteehas failed. todepositthe amountsin hishandsbut is a caseof unauthorised. withdrawals.There is no evidence to show that accused2 to· 10 knew about those withdrawalseven if we assumethat they werethe trusteesduring the Samvat years 2014and 2015.Hence thecaseagainstthem must necessarilyfail. Now coming to accusedNo. 1 his case is that he with drewthe amountfrom his HathuKhata which Khata according.· to him is his privateKhata.There is no contra evidence.The complainant'switness admittedduring his cross-examinationthat Daccused NO. 1 kepta hugesum withthe trustand thatno · interest was given 10 him in respectof thatamount. It is not possibleto come to theconclusion,on thebasisof the evid~ce· of P.W.l thataccusedNo. 1 had withdrawnany amount be longingto thetrust.In orderto provethe caseput forward inthecomplaints,reliance was sought to beplacedon a letter E F G H saidhavebeen sent by the accusedto theCharityCommissioner. Theoriginalleiter was not produced;only an allegedcopy of the same was puton record.No witnesshas provedthe letter saidtohavebeen writtenby accused No. 1, nor is thereany evidenceto showthat the copy produced is a truecopyof the lettersaid to havebeen sent by accusedNo. 1. We are asked· to inferthe guiltof theaccused No. 1 on thebasisof the state mentmadeby himunder s. 342, Cr.P.C. We cannotsplit thatstatementinto variousparts and accepta portionand reject therest. We haveto eitheracceptthat statement as a whole· or notrelyon it atall.In his statementthe accusedpleaded thathe was not guiltyand if his statement is taken as a whole, ii doesnot show that he was guiltyof anyoffence. Our above_ conclusion is sufficientto disposeof these appeals but as the High_ Courthas elaboratelygone into the question "1hether the reqmrement of mens rea is a necessaryingredient of s. 35 (1), we shallproceed to examinethat question. TheHighCourtprimarilyaddresseditself to the question· whetherthe courtshouldread into s. 35 of the Act the require- mentsof mens rea. Sectitituted by knowledge or intention or otherwise.But this Brule has severalexceptions; as observedby LordEvershed ir. Lim Chin Aik v. The Queen('). c D E F G H "Where ihe subject matter of the st~tuk is . the regulationfor the publicwelfareof a particular acti ' ity-statutes regulatingthe ~sale of food and drink are to be found amongthe earliest examples-it can be andfrequentlyhas beeninferred that the legi'..la ture intended 'hat suchactivities sh0uld be carried outunderconditions of strict liability.The presump tion is that the statuteor statutoryinstrument c~n be effectivelyenforced only if those in charge of the rela vantactivitiesare maderesponsiblefor seeingthat they arecomplied with.' When such a presumption is to be inferred.it displacesthe ordinarypresumptionof 1nens rea." As long back as 1895 WrightJ. observedin Sherras v. De Rutcen. "There is a presumptionthat mens rea, an evil intentionof knowledgeof thewrongfulnessof theact is an essentialingredientin everyoffence;but thatpre'. sumption is liableto bedisplacedeither by the words ofthe st~tute cyeati.ng theoffence or by the subject matte1:. withwhich 1t deals,and bothmustbe consi dered. It !s furtherobservedtherein that the principalclasses of exce~t10ns ~nay perhaps b~ ~educed to three. First. is a class of .a_, ts. which ar~ n.ot cnmma!in anyrealsense,but are acts wh1c h m thept!bhcinterestprohibitedunder a penaltyA othe cla;, comprehends s?me. ~nd perhapsall public nuisan~s. £astly~ !here ma)'. b~ cases m which, althoughthe proceeding is criminal 11_1 h'rlll.it is reallyonly a. summarymode of enforc·n . ·1 rio]1· But exce t. h I ga c1v1 ~" ·" . 1 k P msuecases as these,there must in general , e g~ ty hnowhledge 0!1 th~ partof thedefendant, or of soma '. 11 .i; om . eas. putm his placeto actfor hi m the part1cu!ar matter,. !n order to constitute a~· offe~e::!Jy T~~ ~re;ent case.m our op1mon. fallswithin th fi . tloned. abo'e-Section 35 ( 1) dealswith a q~asi~~~i~~~:ioic:t.men- ' I,) [1%J] A.c. 160 · ('l [1895]! Q 91 - · . B. ,g 562 SUPREME COURT REPORTS (1971) 2 S.C.R. ThisCourtin Ravu/e Hariprasada Rao v. The State( 1 ) ruled ;thatunlessa statuteeither clearlyor bynecessaryimplication crules out mens rea as a costituent part ofthecrime,a personshould .notbe foundguilty ·of an offenceagainst the criminal law unless .hehasgot a guiltymind.The same view was reiteratedby this Courtin State of Maharashtra v. MayerHans George{'). But inboththosecases this Courtrecognizedthat the languageof aprovisioneither plainlyor by necessaryimplicationcan rule outthe applicationof thatpresumption.Further the Courtmay declineto drawthat presumptiontaking into considerationthe purposeintended to be served by thatprovision.In factin RavulaHarprasadaRao's case(') this Courtheld that the lliabilityimposedunder s. 27 (A)of the · MotorSpirit Rationing Order 1941 is an obsoluteliability.The law on thispoint was elaboratelydiscussed by the House of Lords in Sweet v. Parsley (3). Thereinit was laid downthat it is a generalprincipleof con struction of anyenactmentwhich createsa criminaloffence that, evenwherethe wordsused to describe the prohibitedconduct ·would not in anyothercontextconnotethenecessity for any particularmental element they are nevertheless to be read as subjectto theimplicationthat a necessaryelement in the offence is the absenceof a belief,held honestlyand on reasonable groundsin theexistenceof a factswhich,if true,wouldmake theact innocent. In thecourseof his speechLord Reid obser ved afterreferring to the well knownobservations of Wright J, to which ·we havealreadymade reference. "It does not in theleast follow thatwhenone is dealingwith a trulycriminalact it is sufficientmerely tohaveregard to the subjectmatter of theenactment. One mustput oneselfin the positionof a legislator. It haslongbeenthe practice to recogniseabsolute offences inthisclassof quasi-criminalacts, and onecan safely assumethat, whenParliament is passingnew legislation dealingwith thiseclass of offences,itse silence as to mens rea meansthat the oldpractice is to apply.But whenone comes to actsa trulycriminalcharacter,it appearsto me that thereare at leasttwo otherfactors whichany reasonablelegislator would have in mind. In the firstplacea stigma ·still attachesto anyperson convictedof a trulycriminaloffence, and the more seriousor moredisgracefulthe offenceare greaterthe stigma. So he wouldhave to considerwhether,in a caseof thisgravity,the publicinterestreally requires tban an innocentperson should be preventedfrom pro- (1) [19511 S. C. R. 322.(2) [19651 I S.C.R. 123. (3) [19651 2W.L.R. 470. A B c D F G H A B c GUJARAT v. PANDEY (Hegde, J.) 563 ving his innocencein orderthat fewer guiltymenmay escape." Section 35 (l) of the Actcreatesa quasi-criminaloffence. It is a regulatoryprovision.It is enacted with a view to safe guardthe interestof thepublicregardingtrust money.The offencein question is punishableonly with fine. The conviction underthat does not carry any stigma.The languageof the pro visionappears to ma1'e its contraventionan absoluteliability. Under these circumstances, we thinkthe offencementionedin thatsection is an absolute one. Consequently we cannotread intoit therequirementof mens rea. For the reasonsmentionedabove these appealsfail andthey aredismissed. Y.P. Appeal dismissed. |
