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Emperor Vs. Samansab Sultansab Hukeri - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case Number Criminal Revision Application Nos. 448 and 449 of 1945
Judge
Reported inAIR1947Bom187; (1946)48BOMLR764
AppellantEmperor
RespondentSamansab Sultansab Hukeri
DispositionApplication allowed
Excerpt:
.....for an offence under rule 81(4) of the defence of india rules, 1039, it is implied that an accused person knew of the order contravened by him, but the statute not having made any particular intent or any particular knowledge an essential ingredient of the offence, the prosecution has merely in the first instance to make out that there was an order and that the accused contravened it. it would then be necessary for the accused to allege that he did not know of the order and to lead prima facie evidence of it which will include any statement he may make upon the point. the defence will be a defence of absence otmerti rea inasmuch as the accused is not aware of the order. if an accused makes such a plea, it is necessary for the prosecution to rebut it. where, however, no plea of..........all those states of mind, which a statute which creates an offence regards as necessary that an accused person should have, before he could be said to be guilty of the offence. but rule 81(4) of the defence of india rules does not say that the opponents should have contravened the order referred to in the rule knowingly.8. we do not mean to say that even so an accused person could be convicted of an offence under that rule, whether he knew of the order which he is alleged to have contravened or not. it is implicit in every conviction for an offence under rule 81(4) of the defence of india rules that an accused person, knew of the order, but the statute not having made any particular intent or any particular knowledge an essential ingredient of the offence, the prosecution has merely.....
Judgment:

Lokur, J.

1. These are two applications made on behalf of the Government of Bombay for enhancement of the sentences passed on the two opponents by the Resident Magistrate, First Class, Hukeri, on their conviction under Rule fil (4) of the Defence of India Rules, 1939, for contravening the provisions of the Belgaum District Magistrate's Order No. W. A. R. 64, dated March 9, 1944. The learned Magistrate imposed a fine of Rs. 10 and Rs. 5 on the two opponents respectively. The opponent in application No. 448 of 1945 was found removing five bags containing 144 seers of rice worth Rs. 48 from Belgaum to Tlukari without the District Magistrate's permit. The opponent in application No. 449 of 1945 was found removing 56 seers of rice from Belgaum to Badkundri without the requisite permit of the District Magistrate. Both of them admitted that they were doing so, but pleaded that they were taking them for their own consumption. When the charge was framed and read out to them, both of them pleaded guilty to the charge. The learned Magistrate did not go merely on their pleas but decided the eases on their merits. He stated in his order that the District Magistrate's order was explicit and was widely published and that the opponents had been actually caught while carrying rice without permits from the District Magistrate.

2. Notices having been issued to the opponents to show cause why the sentences passed on them should not; be enhanced, they are entitled under Section 439(f) of the Criminal Procedure Code to show cause against their convictions, and the learned advocates on their behalf have challenged the validity of their convictions on the ground that their pleas of guilty merely amounted to the admission of the fact of the removal of rice without the District Magistrate's permits and that in fact they had no knowledge of the District Magistrate's order which had not been duly published as required by Rule 119 of the Defence of India Rules, 1939. It is true that there is no direct evidence to prove the publication of the order as required by Rule 119(1), nor is there any evidence to show that the opponents were aware of the order when they were found removing rice from one place to another. It is also equally true that they did not state in their statements that they were not aware of the order. The order was specified in the charge and when the charge was read out and explained to them they pleaded guilty to it without even suggesting that they were unaware of the order. It is, however, urged on their behalf that it was incumbent on the prosecution to produce the order and also to prove that the order was known to the opponents. It is also urged that the order had to be published as required by Rule 119(i) of the Defence of India Rules before it could 'take effect. In the absence of any evidence regarding the publication of the order it may be taken for the purposes of these cases that the order was not published as required by Rule 119. But that does not mean that the order itself was invalid. Our attention was drawn to several decided cases regarding the interpretation and the effect of Rule 119(1). There are two eases which support the contention urged on behalf of the opponents. In Shakoor Hasan v. Emperor Niyogi J. (sitting singly) held that any order passed by the District Magistrate under Rule 81(2) of the Defence of India Rules could not bind the person concerned unless it was published in accordance with Rule 119(1). In Public Prosecntor v. Narayana Reddy A.I.R[194S] . Mad. 192 Chandraskhara Aiyar J. (sitting singly) observed:

The prosecution has to show before relying on the order prohibiting transport of grain that there was publication of the order in accordance with what the authority, officer or person issuing it considered was best adapted for conveying information to the persons whom the order concerns.

3. With respect, we think that these decisions have gone far beyond what is provided for in Rule 119(1) of the Defence of India Rules. That rule runs as follows:-

Save as otherwise expressly provided in these Rules, every authority, officer or person who of makes any order in writing in pursuance of any of these Rules shall, in the case of an order of a general nature or affecting a class of persons, publish notice of such order in such manner as may in the opinion of such authority, officer or person, be best adapted for informing persons whom the order concerns... .and thereupon the persons, corporation, firm or person concerned shall be deemed to have been duly informed of the order.

4. The provisions of this rule have been considered by this Court in several recent cases. In Emperor v. Mhatarji Bhaw Patil (1944) 47 Bom. L.R. 148 (to which I was a party) Divatia J. considered the manner in which an order to be issued by a District Magistrate should be published under Rule 119, and it was held that the order in that case had not been so published. But in that case the accused had specifically pleaded that he was not aware of the District Magistrate's order. Similarly in Emperor v. Gwilt (1944) 47 Bom. L.R. 431 the question considered was whether a presumption of knowledge could arise under Rule 119(1) where it had been found that the order had not been duly published. In neither of those cases was it held that In the absence of the necessary publication the order itself was ineffective or that the order could not be deemed to have come into force until its publication under Rule 119. This was made clear in Emperor v. Rayangoitda Lingangouda : AIR1944Bom359 where it was held that if in fact the individual concerned knew perfectly well that an order had been passed against him and had acquired his knowledge by means other than Rule 119(1) it could not be said that in the absence of such publication he was not liable to be convicted. Macklin J. observed (p. 502) :

The consequence of failure to carry out the provisions of Rule 119 is practical rather than legal. The result would be that the prosecution would lose a simple method of establishing beyond controversy that the person affected had received notice of the order affecting him, and that the person affected would find it easier to establish the fact that he had not received notice, assuming that in any particular case the burden of proof were upon him to prove affirmatively that he had not received notice.

5. It is necessary to bear in mind that Rule 81(4) of the Defence of India Rules, 1939, which creates the offence of which the opponents have been convicted, does not make any particular state of mind an essential ingredient of that offence. All that the sub-rule says is that if any person contravenes any of the provisions of Rule 81, he shall be punishable, etc. This may be compared with Section 188 of the Indian Penal Code which says: .

Whoever, knowing that by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management disobeys such direction... shall be punishable under this section.

6. Thus in an offence under this section knowledge is an essential ingredient which has to be proved by the prosecution. It is true that in order to constitute a crime, there must be mens rea on the part of the accused. But the question is one of burden of proof. In Bank of New South Wales v. Pvper [1807] A.C. 383 Sir Richard Couch in delivering the judgment of the Judicial Committee of the Privy Council observed (p. 389) :

It was strongly urged by the respondent's counsel that in order to the constitution of a crime, whether common law or statutory, there must be mens rea on the part of the accused, and that he may avoid conviction by shewing that such mens did not exist. That is a proposition which their Lordships do not desire to dispute; but the questions whether a particular intent 13 made an element of the statutory crime, and where that is not the case, whether there was an absence of mens rea in the accused, are questions entirely different, and depend upon different considerations. In cases when the statute requires a motive to be proved as an essential element of the crime, the prosecution must fail if it is not proved. On the other hand, the absence of mens rea really consists in an honest and reasonable belief entertained by the accused of the existence of facts which, if true, would make the act charged against him innocent.

7. This would be more or less akin to a mistake of fact contemplated by Section 79 of the Indian Penal Code, and the burden of proving the necessary circumstances would be on the accused under Section 105 of the Indian Evidence Act. On this principle if Rule 81(4) of the Defence of India Rules had required that the opponents should be proved to have contravened the District Magistrate's order knowingly, then knowledge of the accused having been made one of the essential elements of the offence by the rule, the prosecution would have had to prove it before the opponents could be convicted, though that burden of proof could have been discharged with the help of Rule 119(1) of the Defence of India Rules, in which case a plea by the opponents that they had no knowledge of the order would not have been available to them inasmuch as when it was once shown that the order was duly published as required by that rule, they would have been deemed to have been duly informed of that order. But if the prosecution failed to prove due publication, and also failed to prove by other muang that the opponents knew of the order, then the opponents would have been entitled to succeed on the ground that the statute had made a particular state of mind-an element of the crime, and the prosecution had failed to prove that state of mind in them. It is hardly necessary to point out that in Bank of New South Wales v. Piper their Lordships meant by the words 'a particular intent' all those states of mind, which a statute which creates an offence regards as necessary that an accused person should have, before he could be said to be guilty of the offence. But Rule 81(4) of the Defence of India Rules does not say that the opponents should have contravened the order referred to in the rule knowingly.

8. We do not mean to say that even so an accused person could be convicted of an offence under that rule, whether he knew of the order which he is alleged to have contravened or not. It is implicit in every conviction for an offence under Rule 81(4) of the Defence of India Rules that an accused person, knew of the order, but the statute not having made any particular intent or any particular knowledge an essential ingredient of the offence, the prosecution has merely in the first instance to make out that there was an order and that the accused contravened it, and it would be necessary for the accused to allege that he did not know of the order and to lead prima facie evidence of it, which might, of course, include any statement which he might make upon the point. The defence would be a defence of absence of mens rea inasmuch as the accused was not aware of the order. If an accused person made such a plea, it would be necessary for the prosecution to rebut it, since, as already stated, it would be implicit in the conviction of an accused person that he knew of the order, and an accused person could not be convicted unless the Court came to the conclusion that the defence which he adopted was false, and the prosecution, upon which there is the final burden of proving that an accused person is guilty of the offence, must discharge the burden upon it to prove that there was no absence of mens rea. But as in this case no plea of ignorance of the order was put forward by either of the opponents, it was not incumbent on the prosecution to prove their knowledge of the existence of the order. Hence the failure of the District Magistrate to publish the order as required by Rule 11(i) did not affect the opponents' liability under Rule 81(4) if they contravened that order. We, therefore, hold that the opponents have been rightly convicted.

9. As regards the sentences passed on them, both of them frankly admitted the removal of rice outside the District, but pleaded that they were taking it for their own consumption. As regards the opponent in application No. 448 of 1945 it is to be noted that he said that he was taking rice to Hukeri from Belgaum, but he is not a resident of Hukeri, but of Masarguppi. Hukeri is a taluka place and he could not have required as many as five bags of rice for his own consumption nor had he any reason to take the bags to Hukeri. Pre- . sumably he must have been taking them for carrying on business and making a profit. In these circumstances, we think that a fine of Rs. 10 only is grossly inadequate and we would increase it to Rs. 100.

10. The opponent in application No. 449 of 1945 was carrying rice to his own village Badkundri and the quantity of rice also was comparatively less, 56 seers only. But he wilfully contravened the District Magistrate's order and we think that the nominal fine of Rs. 5 imposed upon him by the learned Magistrate is not sufficient to meet the ends of justice; we increase it to Rs. 25.

11. Rules made absolute.


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