1.This is an appeal filed by the Government under Section 417, Criminal P.C., against the order and judgment of the Additional District Magistrate, Ujjain in Criminal Case No. 2 of 1953 acquitting; the respondent Siddhanath of an offence under Section 171F, Penal Code.
2. The learned Government Advocate while arguing the appeal made it quite clear that the appeal has been filed for getting an authoritative pronouncement from this Court on the question whether the prosecution is bound to prove the guilty intent, mens rea, in cases of personation at an election. It was added that the Government are not pressing for any deterrent sentence on the respondent in case he is found guilty of the offence of personation under Section 171 P, Penal Code.
3. The case related to the 1952 election of the Legislative Assembly and the Parliament Lob Sabha, The name of Gangaram s/o Haresingh aged 50 was recorded in the voters' list as a voter for these two elections. The said Gangaram fell seriously ill, but he was keen to cast his vote. He, therefore asked his son Siddhanath respondent, to go to the polling station and cast his vote in favour of the Congress party.
There is no question of corrupt motive involved in this case; for, if the contest in this election had been keen and any of the candidates at the election had desired to get Gangaram's vote, they could have easily brought him on a charpai to the polling booth at Bad Kummed where the polling took place. It appears that nobody knew about Gangaram's illness. As an illiterate farmer, he believed that his vote could be cast by his son; and his son, the present respondent, also believed that he could cast his father's vote at the polling booth.
We need not enter into details about the evidence as the son the present respondent, is hardly 25, and Gangaram's age was not less than 50. If anybody would have cared to closely see the face of the respondent, he could have easily detected that the respondent was not Gangaram. We, therefore, leave the details of evidence as it is only a question of law that we have to decide.
4. The learned Government Advocate comes with the proposition that the sections relating to election in the Indian Penal Code enjoin absolute prohibition and no question of mens rea will arise. He also read certain passages from a book by Dr. J. Edwards 'Mens rea in Statutory Offences'. The passages no doubt lend support to the proposition which the learned Government Advocate wants us to lay down. But their Lordships of the Judicial Committee definitely dissented from this view.
The Privy Council had to deal with a case in - 'Srinivas Mall v. Emperor' (1947) 26 Pat 460 (A), where the accused and his employee were charged under Rule 81(4) of the Defence of India Rules with having sold salt at a price exceeding the maximum price fixed by the District Magistrate. In this case the High Court had taken the view that where there is an absolute prohibition, no question of mens rea arises, and the master will be criminally 'liable for the acts of his servant. But their Lordships of the Judicial Committee observed:
With due respect to the High Court, their Lordships think it necessary to express their dissent from this view. They see no grounds 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' (1895) 1 Q B 918 (921) (B), 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 1946 110 JP 317 318 (C).
These observations have been followed and acted upon in several cases by the High Courts in India. One instance would suffice. In - 'Isak Soloman Macmull v. Emperor' AIR 1948 Bom 364 (D), the accused had supplied four gallons of petrol for Rs. 25/- to a bogus customer without coupons as required by law. Now, the owner of the petrol-pump had no knowledge of the supply of petrol by accused No. 3 to the bogus customer.
The prosecution wanted to fasten a vicarious liability. It was held by a division bench of the Bombay High Court Chagla C.J. and Gajendra-gadkar J. that clauses 5 and 22 of the Motor Spirit Rationing Order 1941 constitute an absolute prohibition against the supply of the motor spirit otherwise than by the methods laid down in this order. An obligation is also cast upon the supplier to supply petrol in the manner indicated in this order. But mens rea is an essential ingredient of the offence against these provisions; and if the master is not present at the time nor has he knowledge of the supply of the pertol by the servants to the bogus customer, it was held that the master was not vicariously liable for the act of the servant.
It was laid down that in order to determine whether mense rea is an essential element of an offence, it is necessary to look at the object and terms of the statute which creates it. It was added that the Courts must be reluctant to come to a conclusion that mens rea is not an essential element unless the clear words of the statute compel them to do so, or they are driven to that conclusion by necessary implication.
5. Therefore, it seems better to see the wording of the Statute itself. Section 171D, Penal Code which defines the offence of personation at an election is as follows:
Whoever at an election applies for a voting paper or votes in the name of any other person, whether living or dead, or in a fictitious name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way, commits the offence of personation at an election.
Its interpretation came before the Madras High Court in 1930 in 'In re Venkayya' 53 Mad 444 : AIR 1930 Mad 246 (E), before a Division Bench of the High Court (Beasley C. j. and Pandalai J.) This section of the Indian Penal Code corresponds to Section 24 of the English Ballot Act 35 and 36, Vic., Chap. XXXIII. The two sections were compared and an English decision on that section, 'Stepney Case, Isaacson v. Duranf 1886 17 QBD 54 (P), was Cited.
In that case it was observed by Denman J., that unless there be corruption, and a bad and intention in personating, it is not an offence. If it is done under an honest belief that the man is properly there for the purpose of voting, it was held in several cases that no offence had been committed. After citing the English case, the Division Bench of the Madras High Court observed:
We are unable to say that the intention of an offender in the commission of this crime is any different in India to what it is in England. There can be no question whatever that the Legislature in introducing the new Chapter, Chapter IX (a), into the Code exactly copied the English Statute Law with regard to offences relating to elections, and we see no reason for saying that, whereas in England the corrupt intention of the voter is to be considered, here it is immaterial.
In this case the petitioner's name was by mistake on the roll of two different villages in an election to fill vacancies on a Taluq Board. The petitioner voted once in the morning in the polling station for G, and in the afternoon, for a second time, in the polling station for B. The petitioner's plea was that he had voted a second time in the bona fide belief that he could do so as his name was included in the two lists. The High Court thought that to constitute the offence of personation under Section 171D, Penal Code, it is necessary to prove that the accused in doing the act with which he-' is charged was actuated by a corrupt motive.
6. That is the only case on the question of personation. The second case reported in - 'Mohammad Din v. Emperor' AIR 1929 Lah 52 (G), does not discuss the law on the subject. But from the facts of that case it appears that no discussion of law was necessary. The facts found verse that in a municipal electoral roll Mohamad Din son of Faqir Mohammad was recorded as person entitled to vote.
The accused Mohammad Din, whose father's name was Abdulla, went to the polling officer and asked for a ballot paper in the name of Mohammad Din son of Faqir Mohammad; and when questioned he asserted more than once that his father's name was Faqir Mohammad, He was found guilty of personation as defined in Section 171D, Penal Code and his revision was dismissed by the Lahore High Court. This case does not lay down any rule of law which may be contrary to that laid down by the Madras High Court in 53 Mad 444: AIR 1930 Mad 246 (E), and the question that now arises is; whether we should hold that the rule of law laid down by the Madras High Court in the above mentioned case is not correct?
7. Before we answer the question with special reference to Section 171D, Penal Code, it will be better to bear in mind the observations of the English Judges about the principle of English Criminal law in two important cases. In the famous 'Tolson's Case, The Queen v. Tolson' (1889) 23 QBD 168 (H), Mr. Justice Wills at Pages 171-172 observed:
It is undoubtedly a principle of English Criminal Law, that ordinarily speaking a crime is not committed if the mind of the person doing the act in question be innocent: 'It is a principle of natural Justice; says Lord Kenyon, C.J., 'that acts non facit reum, nisi mens sit rea. The intent and act must both concur to constitute the crime'; - 'Fowler v. Padget (1798) 7 TR 509 at p. 514 (I). The guilty intent is not necessarily that of intending the very act or thing done and prohibited by common or statute law, but it must at least be the intention to do something wrong. That intention may belong to one or other of two classes. It may be to do a thing wrong in itself and apart from positive law, or it may be to do a thing merely prohibited by statute or by common law, or both elements of intention may co-exist with respect to the same deed.
Then, in a recent case a Bench of five Judges in 'Younghusband v. Luftig' (1949) 2 KB 354 (J), observed as follows:
'Actus non facit reum, nisi mens sit rea' is a cardinal doctrine of the criminal law. No doubt the Legislature can create offences which consist solely in doing an act whatever the intention or state of mind of the actor may be Common instances are provided by many of the offences created by the Defence Regulations. It was an offence, for instance, to be found within a prohibited area. It was no defence for a person found there to say that he did not know or even at the time had no means of knowing that his presence was prohibited.
Overriding considerations of safety placed on citizens the duty of finding out whether a place was a prohibited area or not. Of late years the Courts have been so accustomed to dealing with a host of offences created by regulations and orders independent of guilty intention that it is desirable to emphasize that such cases should be regarded as exceptions to the rule that a person cannot be convicted of a crime unless he has not only committed a forbidden act or default but also that wrongful intention or blameworthy condition of mind can be imputed to him.
8. It is in the light of these observations that we have to find out what intent is necessary for an offence under Section 171D, Penal Code. This section forms part of Chapter IX-A of the Indian Penal Code and was inserted in the Code by the Indian Elections Offences and Enquiries Act Act 39 of 1920. The chapter consists of nine sections The first Section 171A defines 'candidate' and 'electoral right'. Section 171B defines the offence of 'bribery'; Section 171C that of 'undue influence at elections' and Section 171D that of personation at elections.
Section 171E, then prescribes punishment for bribery and Section 171F deals with election. Section 171G deals with false statement in connection with an, election, Section 171H with illegal payments in connection with an election and Section 171I deals with punishment for failure to keep election accounts. From the whole scheme of this chapter it will be clear that it provides for the punishment of malpractices in connection with elections and attempts to safeguard the purity of the franchises. Then, the very idea of personation connotes knowledge of or advertence to the act of pretending to be some other person.
In fact, it implies false pretence. The only intention which is to be found in the section and which is the mental element requisite to a conviction is the intention to personate at the election for one who is a voter. It will, thus be seen that the statute does not rule out mens rea as a constituent part of the crime and the defendant cannot be found guilty of an offence under Section 171D, unless he is proved to have a guilty mind. In this view of the matter, the rule laid down in '53 Mad 444: (AIR 1930 Mad 246) (E)', appears to be correct.
9. The learned Government Advocate then urged that the law lays down that it is Only a voter who can vote and that votes by proxy are unknown to law. He, then, read the following from page 249 of Dr. Edward's book:
At least one thing is crystal clear, namely, that it does not involve proof that the accused knew that he was committing a criminal offence. It has always been accepted as an axiomatic principle that ignorance of the law is no excuse. Where the position is otherwise, it is obvious that the legislature's handiwork could be flouted indiscriminately, an offender taking care to ensure that he did not make himself cognisant with the law.
10. It is, of course, well settled that ignorance of the law will not execuse from the consequence of guilty any person who has capacity to understand the law. Mistake of law, however, normally relates to mistake as to accused's rights under the law to do a particular act or pursue a particular course of conduct. The Courts are not at all concerned with the legality or, otherwise of the rights under which the accused purported to act.
The only question that the Courts have to decide in such cases is, whether the claim of right was honestly and bona fide held by the accused. This question will essentially be one of fact. In such cases, it is the good faith of the accused & not the right itself which requires adjudication. In this sense, a mistake of law can, to a certain extent, be a defence to a criminal charge. It was observed at page 181 of Tolson's case (1889) 23 QBD 168 (H)', that
an honest and reasonable mistake stands in fact on the same footing as absence of the reasoning faculty, as in infancy or the perversion of that faculty as in lunacy.
It was also added that this exception of common law equally applies in the case of statutory offences unless it is excluded expressly or by necessary implication. It is now well settled as a principle of English criminal law that as a general rule, an honest and reasonable belief in a state of facts, which, if they existed, would make the accused's act innocent, affords an excuse for doing an act which would otherwise be an offence. And in this connection, the difference between a mistake of fact and a mistake of law would not be material.
11. The learned Government Advocate, then, argued that from the circumstances of the case it cannot be presumed that the respondent could have any reasonable ground for his belief that his father could authorise him to cast his vote at the election. It was urged that no man of common sense would believe that a vote by proxy was possible and, therefore, urged the Government Advocate, that it should be held that the respondent could not honestly believe that his father could authorise him to cast his vote. It was pointed out that the intention of the respondent may only be to do a thing prohibited by statute, and if it is done intentionally and not accidentally, that should be sufficient to convict respondent.
12. In our opinion, the Government Advocate is right in arguing that If the respondent's intention was to do a thing forbidden by statute, he must be convicted. But this intention is to be judged from the circumstances of the case and in the light of common sense.
It is to be borne in mind that it was the first election on the basis of adult franchise and the percentage of literacy in these parts is low. These circumstances cannot altogether be ignored. In (1949) 2 KB 354 at p. 369 (J), it was rightly observed by Lord Goddard C.J. that the presence or absence of mens rea must be tested on ordinary principles and in the light of common sense.
13. In another case 'Wilson v. Inyang' (1951) 2 KB 799 (K), Lord Goddard C.J. amplified this statement by observing that generally speaking applying ordinary principles and in the light of common sense, a Magistrate would say that if a defendant had no reasonable ground for believing what he said that he believed, he was not acting honestly. But then there may be exceptions: a man may honestly believe that which no other man of common sense would believe. If he has acted without any reasonable ground, and has refrained from making any proper enquiry, that is generally very good evidence that he is not acting honestly.
But It was emphasized, that It would be only evidence and nothing more. The important question to be determined by the Court in such cases always is: whether the accused acted honestly; and the other question whether he acted reasonably or not, will not be the deciding feature. We respectfully concur In this opinion.
14. In the present case the Magistrate has taken into consideration all the circumstances of the case. He saw the respondent, heard his statement and formed an opinion as to his credibility and honesty and then came to the conclusion that the respondent honestly believed that his father could authorise him to cast his vote.
There is nothing in the arguments advanced before us to show that on the circumstances and on the evidence of the case he could not have arrived at this conclusion. In our opinion, he was Justified in coming to the conclusion that mens rea is a constituent part of an offence under Section 171D, I. p. o. and that it was not proved in this case. In our opinion, the respondent was rightly acquitted, and we dismiss this appeal.
15. I agree.