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Emperor Vs. Mahadevappa Hanmantappa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 236 of 1926
Judge
Reported in(1927)29BOMLR153
AppellantEmperor
RespondentMahadevappa Hanmantappa
DispositionAppeal allowed
Excerpt:
indian explosives act (iv of 1884), section 5-rules 32, 138-license to manufacture explosives-breach of the condition-master and servant-negligence of servant-course of employment---damage caused by the negligence of servant-master's criminal liability for servant's act.;the accused held a license for the manufacture of explosives, one of the conditions of which was that the explosive should be manufactured in a tent or lightly constructed building quite apart from the dwelling-house, the deceased was a work-woman employed by the accused. she used to work in such a house exclusively appropriated for the purpose. on the day in question, while the accused was attending to another business of his, the deceased and her assistant went to his dwelling-house to drink water, and on their own.....shah, j.1. this is an appeal by the government of bombay against the acquittal of the accused mahadevappa hanmantappa.2. the accused was charged with:(1) a breach of condition no. 4 in the license in form a of the rules under the indian explosives act iv of 1884,(2) with doing a rash and negligent act so as to endanger human life under section 286, indian penal code, and(3) with causing the death of one bhimava by doing a rash and negligent act under section 304a, indian penal code.3. the prosecution case was that, on september 7, 1925, the deceased bhimava and another woman sangava, employed by the accused, were pounding gun-powder with pestles in his house that in consequence of an explosion that occurred there bhimava got burns, of which she died, and sangava got slight injuries on her.....
Judgment:

Shah, J.

1. This is an appeal by the Government of Bombay against the acquittal of the accused Mahadevappa Hanmantappa.

2. The accused was charged with:

(1) a breach of condition No. 4 in the license in form A of the rules under the Indian Explosives Act IV of 1884,

(2) with doing a rash and negligent act so as to endanger human life under Section 286, Indian Penal Code, and

(3) with causing the death of one Bhimava by doing a rash and negligent act under Section 304A, Indian Penal Code.

3. The prosecution case was that, on September 7, 1925, the deceased Bhimava and another woman Sangava, employed by the accused, were pounding gun-powder with pestles in his house that in consequence of an explosion that occurred there Bhimava got burns, of which she died, and Sangava got slight injuries on her feet.

4. The accused was said to be responsible for this act. This was at Kerur in the Badami Taluka. The Honorary First Class Magistrate of Bagalkot who tried the case has recorded his view of the evidence in para. 8 of his judgment in detail. In effect he found that the deceased pounded gun-powder in the house of the accused unauthorizedly when he was absent in his grocery shop and knew nothing about what was going on in his house until the explosion occurred. He also held that there was nothing in the evidence to show that the accused knowingly did any act which endangered human life or which caused the death of Bhimava. On these findings he found the accused not guilty and acquitted him of all the charges. The appeal from this order is confined to the first charge only under the Indian Explosives Act. The acquittal as regards the charges under Sections 286 and 304 A, Indian Penal Code, is not questioned.

5. In support of the appeal it is urged :

(a) that the view of the evidence taken by the trial Court is wrong and that in effect the accused was aware of and responsible for the gun-powder being manufactured in his house and therefore responsible for the breach of condition 4 ;

(b) that whether he was aware of Bhimava's act or not, and even if Bhimava's act was unauthorized in taking the materials to his house and manufacturing the gun-powder there, he is responsible for the act of his servant as having been done in the usual course of her employment.

6. As regards the first contention I see no reason to differ from the lower Court in its appreciation of the evidence. The accused held a license under the rules framed under the Indian Explosives Act and published in the Bombay Government Gazette, 1914, Part I, pp. 1300-1350. Rule 32 provides that no explosive shall be manufactured except under and in accordance with the conditions of the license granted under the rules for such manufacture subject to certain proviso ; and a breach of any condition is punishable under Rule 138 read with Section 5 of the Act. Condition 4 of the license in this case provides that the explosive shall be manufactured in a tent or lightly constructed building exclusively appropriated for the purpose as provided in that clause. The accused had provided such a house at Kerur outside the village Bhimava used to work as a servant of the accused. About the time of the occurrence Sangava also had been employed with her to do the work. On the morning of September 7, 1925, she took the keys from the accused, who was at his grocery shop in the village, and went to the house in question for her usual work. She, however, left the house some time after with the materials for manufacturing gun-powder with Sangava to drink water and went to the residential house of the accused in the village. After drinking water both Bhimava and Sangava sat down there in the padsali of the house to manufacture gun-powder and used pestles which would be used for threshing rice, and which did not satisfy the requirements of condition 6 of the license. There was an explosion which resulted in injuries to the two women and Bhimava died of the injuries. The accused arrived on the spot after this accident occurred. The learned Magistrate found in effect on the evidence that the accused had no knowledge of this and the women went to his house and sat down to manufacture gun-powder there unauthorizedly. He observes that there is no special reason forthcoming to show why these labourers worked in the accused's residential house, that his house is full of women and children and no body would be so foolish as to endanger their lives much less the accused. This view is challenged by the learned Government Pleader and reliance is placed upon the accused's statement that he learnt that Bhimava told his people that he (accused) had asked her to manufacture the blasting powder in his house and in the licensed house. But the accused denies this and it is intelligible that Bhimava might have said so in apparent justification of her conduct, even if the accused had never told her like that. Sangava's evidence may be open to criticism; but the trial Magistrate has believed her and I see no reason to doubt the correctness of the Magistrate's finding that this was an unauthorized act of Bhimava, of which the accused was quite ignorant.

7. The next question is whether in consequence of Bhimava having acted in this manner unauthorizedly and without the knowledge of the accused, the accused can be said to have manufactured the explosive contrary to condition 4 of the license. In other words, is he responsible for the act of his servant under these circumstances This must depend upon the view which one takes of the question as to whether Bhimava can be said to have acted in the usual course of her employment on the facts found. It is clear that the master would be criminally liable for the acts of his servant, if and when the servant acts in the course of his or her employment. The law on this point is summarised in Lord Halsbury's's Laws of England, Vol. XX, para. 611 (pp. 258-260): and it is dealt with generally in Smith's Law of Master and Servant in Ch. V under the heading of 'In Oases of Tort-Criminaliter.' In the words used in The Attorney-General v. Saddon (1830) 1 Cr. & J. 220 :-

Whatever a servant does in the course of the employment with which he is entrusted, and as a part of it, is the master's act. The legal presumption is so, unless the contrary is shewn.

8. In the same case Bayley B. observes (p. 227) :-

In order to form a judgment, whether this is the master's act or not, and within the scope of the authority which ought bo be considered as given by the master to the servant, you must look at the nature of the act, and see with what view that act was done, and the participation which the master had in any thing to which that act referred.

9. There are numerous cases under different statutes in which the master has been held responsible for the act of his servant criminally and there are cases also in which he has not been so held liable.

10. It must depend upon the terms and and purpose of the particular statute and the nature of the act. I am of opinion that, having regard to the terms of this Act, as also to its purpose, the master would be liable if the servant has acted within the 'scope of his employment.' The same principle has been recognized by this Court in Queen-Empress v. Tyab Alli I.L.R. (1900) 24 Bom. 423 and Emperor v. Jeevanji. (1907) I.L.R. 31 Bom. 611

11. The whole question is whether in leaving the licensed house and going to the accused's house Bhimava acted within the scope of her employment. She was employed to do work in the licensed house and the scope of her employment was to work there, If without any authority and out of ignorance of the consequences she goes elsewhere and does what she was to do in the licensed house, can she be said to have acted within the scope of her employment I have considered this question with care. 1 have referred to several decided cases. I am unable to find any parallel to an act of this nature. After all the question has to be answered with regard to the circumstances of the case, and the nature of the act. It seems to me that her going to the accused's house or to any other house with the materials for manufacturing gun-powder would be outside the scope of her employment. The prosecution may establish that going to the accused's house was within the scope of her employment. But in the absence of any explicit allegation and evidence it cannot be so presumed against the accused. The accused can be held liable for Bhimava's act in this case, if it be held that the master is absolutely responsible for his servant's act, whether she has acted within the scope of her employment or not, that is, if it is obligatory upon the master to prevent the servant from going beyond the scope of her authority. No decided case has gone so far : and however desirable it may be to control the servant's conduct effectively, unless the act is within the scope of her employment the master cannot be held criminally responsible even in this class of cases.

12. In Queen-Empress v. Tyab Alli the servant acted clearly within the scope of his employment and so did the agent in Emperor v, Jeevanji. In fact in the latter case it was found that the servant was expressly authorized to enter into the agreement.

13. I may refer to Harrison v. Leaper (1862) 5 L.T.N.S. 640, Newman v. Jones (1886) 17 Q.B.D. 132 and Phelon & Moore, Limited v. Keel [1914] 3 K.B. 165 as instances where the master was not held liable for the acts of the servant. In the first case Cockburn C.J. observes (p. 641) :-

It strikes me in this way : i a servant in the ease of such an engine negligently were to run up against another with it, his master would be liable. If, however, he wilfully does so, his master would not be liable. So here, if he wilfully erected this machine in an improper place, without his master's orders to do so, the master could not be made liable under this Act of Parliament.

14. The Act in that case was 5 & 6 Will. IV. c. 50. Section 70. I may also point out that the observations of Lord Hewart C.J. in Burns v. Scholfield (1922) 128 L.T. 382 indicate that when a servant who has been authorized to do a certain act does another act, the master may not be liable for the act of his servant.

15. However unfortunate the accident may be, I think the liability of the accused must be determined with reference to the scope of her employment. It must be decided as a question of fact in the light of the circumstances and the evidence in this case. She was employed to work in the licensed house and to manufacture the explosive there. No doubt she manufactured the explosive in the accused's house: but that act was, in my opinion, outside the course of her employment. She left the house on her own account and thought of manufacturing the explosive there to save herself time or trouble or inconvenience which had nothing to do with her employment.

16. Lastly, as regards the use of pestles in the residential house of the accused, there was no charge on that point. Such pestles would be ordinary articles in a household at Kerur: and if she was acting outside the scope of her employment her use of the pestles there would be as much beyond the scope of her employment as the manufacturing of the explosive there would be.

17. Suppose she had gone to some other house and acted in this way could she be said to have acted within the scope of her employment In my opinion the answer should be in the negative. Equally it should be in the negative even when that place happens to be the accused's house, provided of course she acted unauthorizedly. In this particular ease the prosecution was started on the basis of the accused having connived at her transgression and of having acquiesced therein being conscious of her act, as the joinder of the charges under Sections 286 and 304A of the Indian Penal Code would go to show. The prosecution failed to establish that case : and unless the prosecution can establish that her act was within the scope of her employment, the appeal cannot succeed.

18. I admit that the matter is not free from difficulty but on the best consideration that I can give to it I think that Bhimava is not proved, and cannot be presumed, to have acted in the course of her employment in going to the house of the accused and in doing there the work which she was to do at the licensed house outside the village.

19. I would, therefore, dismiss the appeal.

20. I regret that I have not been able to agree with my learned brother in this case. In view of this difference of opinion, the case will be laid before another Judge under Section 429, Criminal Procedure Code.

Fawcett, J.

21. In my opinion, even on the facts found by the Magistrate, the accused should have been convicted of a contravention of Rule 32 and consequently an offence punishable under Rule 188, Clause 4 or Clause 9 of those framed under Section 5 of the Indian Explosives Act, 1884.

22. The case, in my opinion, is one of those where the effect of the statute is to make the master liable for his servant's act in any event, so long as the act was done by the servant in the course of his employment. In such a case, as stated in Halsbury's Laws of England, Vol. XX, Art. 611 (1), at pp. 258-259 :-

The liability of the master arises solely from his relation to the servant, and the absence of personal guilt is immaterial. He cannot, therefore, escape criminal responsibility on the ground that he himself had acted in good faith and had forbidden the servant to do the act, or that he was unaware of what the servant had done.

23. This principle has been applied in England to cases like the present of the manufacture of a dangerous article. Thus in the case of the use of alum, in making bread, it was held that the defendant, who did not himself make the bread, was criminally liable for the act of his servant in using it to excess : The King v. Dixon.(1) There Lord Ellenborough C.J. said (p. 14) :-

He who deals in a perilous article must be wary how he deals, otherwise, if he observe not proper caution, he will be responsible ; and the statute having interdicted alum in the making of bread, shews that it must be considered as a perilous article.

24. In the leading case of The Attorney-General v. Siddon (1830) 1 Cr. & J. 220 the case of manufacture is thus referred to in the judgment of Bayley B. at p. 227 of the report:-

Neither is this the case of an act done by a servant in the manufacture of articles which the master is himself to manufacture. There the servant is merely acting in the business of the master, and within the scope of the authority which he actually receives from his master. The authority which he receives from his master is an authority to make and manufacture, and the master is responsible for his conduct prima facie, as to the means be adopts in making and manufacturing.

25. It was the accused alone who, as the licensee, has primarily to see that the conditions of his license are observed. If he employs an ignorant woman, who does not realise the danger of manufacturing explosives in an inhabited house and of using iron or steel implements for the purpose, and chooses to absent himself on other private business such as a grocery shop, so that no proper check is kept on the servant acting against the conditions of the license in the course of her employment, then he seems to me clearly to fall within the penal clause in the rules under the Indian Explosives Act. The fact that lie may have been unaware of the servant's intention to manufacture the gun-powder at his house, or that she even acted against his orders in doing so, is immaterial. Thus, in Commissioners of Police v. Cartman [1896] 1 Q.B. 655 where the master was prosecuted for the act of his servant in selling intoxicating liquor to a drunken person, Lord Russell of Killowen C.J. said (p. 658) :-

It makes no difference for the purposes of this section that the licensee has given private orders to his manager not to sell to drunken persons; were it otherwise, the object of the section would, be entirely defeated. We may take as an illustration the case of a sporting publican who attends race-meetings all over the country, and leaves a manager in charge of his public-house ; is it to be said that there is no remedy under this section if drink is sold by the manager in charge to any number of drunken persons It is clear that there is no machinery by which the person actually selling can be convicted ; a penalty can only be inflicted on the licensee. It is impossible for us to place upon the section the narrow construction suggested.

26. This reasoning applies to the present case because it is only the accused, as the licensee, who can be convicted of committing a breach of a condition in his license under Rule 138.

27. The above conclusion also accords with the rulings of this Court in Queen-Empress v. Tyab Alli I.L.R. (1900) 24 Bom. 423 and Emperor v. Jeevanji I.L.R. (1907) 31 Bom. 611 As remarked by Chandavarkar of the latter report:-- 'The statute should be construed not merely with reference to its language, but also its subject-matter and object.' In the present case the whole object of the statutory rules in question would be defeated, if a master could evade liability on the pleas set up for him in this case. The case Lord Russell was dealing with was, no doubt, one of a master putting a servant in his place to sell articles that the master is licensed to sell : but the case of a master putting a servant in his place to manufacture articles he is licensed to manufacture seems to me to be on all fours, as is recognized in the judgment of Bayley B. in The Attorney-General v. Siddon already cited.

28. The principle in question is all the more applicable, in view of the fact that we are dealing with a case of manufacture of explosives, i. e., articles dangerous in themselves. Thus in Dominion Natural Gas Company, Limited v. Collins and Perkins [1909] A.C. 640 their Lordships of the Privy Council say (p. 646) :-

It has, however, again and again been held that in the case of articles dangerous in themselves, such as loaded firearms, poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will coma within their proximity.

29. The case of Jefferson v. Derbyshire Farmers, Ld [1921] 2 K.B. 281 supplies an instance of the application of that principle, as making all the difference between that case and one like Williams v. Jones. (1865) 3 H. & C. 602 As Atkin L.J. remarked in the former case (at p. 284) 'If ho (the servant) had been making gunpowder instead of a sign-post the decision might have been otherwise.' Jefferon's case was one of a servant smoking and throwing away a lighted match, in a garage while drawing motor-spirit from a drum into a tin. The master was held liable for the resulting damage on the ground that the servant being engaged in an act which was within the scope of his employment, and required special caution, and having failed to exercise caution was guilty of negligence in the course of his employment. This was in spite of the decision of the House of Lords in Williams v. Jones, which the trial Judge had followed. In that case, a carpenter who was making a sign-board in the plaintiff's shed lit his pipe from a shaving, dropped the shaving, and set fire to the shed ; and the House of Lords held that it was not in the course of his employment to light his pipe and smoke, and consequently the master was not liable. The Court of Appeal held that the two cases were quite distinguishable, because the making of a sign-board is not in itself a dangerous operation (like pouring motor-spirit from a drum into a tin), demanding the exercise of any precautions. I refer in particular to the portion of the judgment of Warrington C.J. at p. 288, which very lucidly points out the difference between the two cases.

30. Therefore, there is clear authority for distinguishing this case from that of a servant doing a wilful or capricious act entirely outside what he is employed to do, and for holding that the servant Bhimava's act of going to the accused's house and making gun-powder there was an act within the scope of her employment. Even if there had not been the distinguishing feature of danger in this case, I should hesitate to say that her act of manufacturing what she was employed to manufacture, though in an improper place, was not within the scope of her employment. The case is somewhat similar to a chauffeur taking his master's car for his own purposes contrary to the master's instructions, and having an accident at a place where otherwise ho would never have been. Yet Pratt J. in such a case held the master liable on the ground that the chauffeur at the time of the accident was acting in the course of his employment: see Roberts v. Shanks. : AIR1925Bom360

31. The fact that the servant went to an unauthorized place to make the gun-powder, in my opinion, makes no difference. It is not a sufficient answer to say that she was employed to work only in the licensed house. She was employed to make gunpowder, and it was the accused's business to see that she complied with all the conditions of his license. It might just as well be said that she was employed to make gun-powder only with due care, and that therefore any negligence on her part would be outside the scope of her employment. But the law clearly negatives such a contention.

32. The case most favourable to the accused that I have been able to find is Joseph Band v. Craig. [1919] 1 Ch. 1 Carters were employed by a contractor by the day to take rubbish from certain works to his dumps, and to tip it there, and were strictly forbidden to tip it anywhere else. Some of the carters, without the knowledge of the contractor, and in contravention of their orders, took the rubbish to a piece of unfenced land, the property of the plaintiffs, and tipped it there. They did this for their own convenience and for a purpose of their own. The unfenced land was nearer to the works than the dump of the contractor. It was held by the Court of Appeal that the illegal acts complained of were not within the sphere of the carters' employment, and consequently that the contractor was not liable for them. This decision is based on the view that the carters' acts were 'done deliberately of their own choice and to effect a purpose of their own, and in opposition to the express instructions of their employer.' (per Swinfen Eady M.R. at p. 9). That is to say, it was a case of the servant doing an act 'on a frolic of his own', to use the well-known expression of Parke B. in Joel v. Morison (1834) 6 C. & P. 501. Such a case is entirely different from one like this of a negligent act in this course of a dangerous occupation which calls for special care, as is pointed out in Jefferson v. Derbyshire Farmers, Ltd.. already cited. In fact Swinfen Eady M.R. in his judgment says (p. 9) :-

The acts of which they were guilty were their own deliberate acts, It is not a case of carelessness or negligence, in the course of their employment.

33. Had it been such a case, the. decision doubtless would have been different. Also there was no express statutory prohibition against the rubbish being put where it was, corresponding to the prohibition, against the manufacture of gunpowder elsewhere than in the licensed house that there is in the present case. Moreover, against this case may be cited The Queen v. Stephens, where the facts were somewhat similar. But there it was held that the defendant was liable on an indictment for obstructing navigation by throwing rubbish into a river from a quarry owned by him but managed by his son, although it was proved that the men employed at the quarry had been by order prohibited from doing the acts complained of. This case is a recognized authority for the proposition that, apart from statute, a master may be criminally liable for the act of his servant, though there is no menu rea : cf. Coppen v Moore (No. 2) [1898] 2 Q.B. 306.

34. To sum up, this is, in my opinion, a case of a statute relating to the mode in which a particular business is to be conducted. The effect of it is to prohibit expressly the manufacture of gunpowder except in the special place licensed for the purpose. This is as much an essential part of the mode of manufacture as any other condition of the license-in fact it is perhaps the most important condition, because its breach involves the danger of proximity of other parties that is specially referred to by the Privy Council in Dominion Natural Gas Go. v. Collins. Having regard to the decision in Jefferson v. Derbyshire Farmers, Ltd., I think the act of Bhimava was clearly within the scope of her employment, in spite of its being done for her own convenience and in spite of instructions to the contrary received from the accused. It is, therefore, a case of express statutory prohibition, where the master is criminally liable for the acts of his servant committed in the scope of his employment: cf. Varaj Lall v. Emperor I.L.R. (1924) Cal. 948. I would, therefore, set aside the acquittal, convict the accused of a breach of condition No. 4 of the conditions of his license, and thus having committed an offence under Rules 138 of the Rules under Section 5 of the Indian Explosives Act, 1884, and sentence him to pay a fine of Rs. 500. It is a serious case, which resulted in the servant's death ; and I think the maximum penalty provided for an offence falling under Clause (9) of Rule 138 should be imposed on the accused, who took no clear or adequate steps to prevent the condition in question being broken by the deceased.

35. The reference was heard by Crump J.

Crump, J.

36. The accused held a license under the Indian Explosives Act 1884 to manufacture gunpowder. The fourth condition of that license contains the following words :-

The explosive shall be manufactured in a tent or lightly constructed building exclusively appropriated for the purpose and separated from any dwelling house, highway, street, public thoroughfare or public place by the distance in the case of gunpowder of one hundred yards.

37. The effect of this positive injunction no doubt is to forbid the manufacture of gunpowder otherwise than in accordance with this condition.

38. The accused lived in the village of Kerur and he constructed a building outside the village, which complied with this condition, and employed a woman named Bhimava to manufacture gunpowder there. Bhimava engaged one Sangava to assist her. On September 7, 1925, Bhimava went to this building with Sangava and took some sulphur, some salt-petre, and some charcoal, the three ingredients necessary for the manufacture of gunpowder. She and Sangava, for reasons which are not, in my opinion, clearly established, then went with these ingredients to the house of the accused in the village, and performed part of the process of manufacture there. On these facts the accused is charged with committing a breach of this condition of his license. The question is whether that charge is sustainable. I am informed by the Government Pleader that the second and third heads of the charge, viz., of offences arising out of the death of Bhimava are not now pressed. Therefore, I am not concerned with the results of this failure to comply with the conditions of the license. And the appeal is moreover confined to the breach of the condition which has already been set out. That there was a breach of this condition is clear. The question is whether the accused is criminally liable for an act done by Bhimava. It does not appear on the evidence or on the statement of the accused that he had ordered Bhimava not to manufacture gunpowder at any other place than the building specially constructed for the purpose. That he did not do so may be inferred from the fact that the two women went to the accused's own house for the purpose. The accused did not know that Bhimava was manufacturing gunpowder elsewhere than in the specially constructed building. Such is the finding of the Magistrate and I accept it for the purposes of this appeal.

39. In my opinion two questions arise for determination. The first question is whether the penal clause is so drafted as to place upon the master criminal responsibility for the acts of his servant. The second question is whether the servant Bhimava was acting within the general scope of her employment. Upon the first question many cases have been cited but the conclusion to be drawn is, 1 think, that the question is one of construction and that in construing the statute regard must be had to its language, scope and object. That will be found laid down by Lord Russell C.J. in Coppen v. Moore (No. 2) [1898] 2 Q.B. 306. The test suggested there is : 'Did the legislature intend having regard to the language, scope and object of the statute to fix criminal responsibility upon the master for acts done by his servant in the course of his employment although such acts were not authorised by the master ?' The same principle may be deduced from the judgment of the same learned Judge in Commissioners of Police v. Cartman. [1896] 1 Q.B. 655 Whether there must be in any case personal knowledge of the licensed person depends primarily upon the language of the statute. Here there are no words which can be held to require such knowledge before the offence is complete. In a similar case (Mullins v. Collins (1874) L.R. 9 Q.B. 292 the statute under consideration prohibited the commission of a certain act by a licensed person. The act was committed by a servant. There were no words which required that the licensee should have knowledge of the commission of the act. Blackburn J. said (p. 295): 'If we hold that there must be a personal knowledge...we should make the enactment of no effect.' Similarly in Cundy v. Le Cocq (1883) 13 Q.B.D. 207 Stephen J. remarked (p. 209):-

Our answer to the question put to us turns upon this, whether the words of the section under which the conviction took place, taken in connection with the general scheme of the Act, should be read as constituting an offence only where the licensed person knows or has means of knowing that the person served with intoxicating liquor is drunk, or whether the offence is complete where no such knowledge is shewn. I am of opinion that the words of the section amount to an absolute prohibition of the sale of liquor to a drunken person.

40. Here, too, we have an absolute prohibition of the act done by the servant. Here, too, if we hold that there must be personal knowledge we make the enactment of no effect. The scope of the statute is to regulate the manufacture of explosives, the object or at least one of the objects to ensure the safety of the public. Similar considerations were given effect to by this Court in Queen-Empress v. Tyab Alli I.L.R. (1900) 24 Bom. 423 and it was held that where a statute prohibited the sale of arms to any person not legally authorized to possess the same, and a servant did so sell arms, the master could not defend himself by a plea of want of knowledge. The principles established by these decisions appear to me to apply here and though I have referred to all the cases which have been cited I do not find it necessary to discuss any others. There is, in my opinion, a distinction between those cases where it is sought to apply a penal statute, and those cases where a third party seeks relief by way of damages against the master for the negligent act of the servant.

41. If then Bhimava was acting within the general scope of her employment the accused is, in my opinion, liable to be punished for her act. I feel no doubt that she was so acting. What she did was in furtherance of her master's business, and not in pursuance of any purpose of her own. It was argued that the scope of her employment was to act according to the conditions of the license, and that therefore any breach by her of those conditions must be an act outside that scope. Enough has been said to show that this argument cannot prevail. Were it sound it might have been a successful defence in each and every one of the cases which I have cited. She was employed to manufacture gunpowder for her master. That was the general scope of her employment, and the breach of the condition of the license was committed while she was so engaged. The case of Phelon & Moore, Limited v. Keel [1914] 3 K.B. 165 is plainly distinguishable. Here Bhimava did not take the materials for her private ends and for a purpose unknown to the master. The case is indeed against the accused in one respect for it recognises in the words of Avory J. that (p. 170) :

The Legislature may, and sometimes does, impose an absolute duty on a person, a breach of which duty is made a criminal offence even in the absence of mens rea.

42. On these grounds I agree with the view expressed by Fawcett J. I must, therefore, set aside the order of acquittal and find the accused guilty of committing a breach of condition 4 of the conditions of the license and of thus having committed an offence under Rule 138 of the rules made under Section 5 of the Indian Explosives Act 1884. Upon the question of penalty, I would remark that in such cases the employer's ignorance has often been held to be a mitigating circumstance, that the accused is a petty grocer in a remote village and presumably totally unable to pay a heavy fine. Further, it is to be remembered that these proceedings have lasted over a year and have been carried up to the High Court. I would impose a fine of Rs. 150.


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