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ibrahim and ors. Vs. State of West Bengal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1968SC731; 1968CriLJ874; [1968]2SCR306
ActsMerchant Shipping Act, 1958 - Sections 191(1), 194 and 436
Appellantibrahim and ors.
RespondentState of West Bengal and anr.
Cases ReferredMoore v. Canadian Pacific Steamship Co.
Excerpt:
.....- appeal by special leave before supreme court - appellants contended their act did not amount to desertion and even if ship is deserted there was reasonable excuse for desertion - court opined that there is no reasonable excuse under section 191 (1) (b) - held, rightly charged and fined them. - [p.b. gajendragadkar, c.j.,; a.k. sarkar,; k.c. das gupta,; k.n. wanchoo, jj.] the appellant filed a criminal complaint against respondent no. 2 alleging that he had committed an offence under s. 193 of the indian penal code, 1860 by giving false evidence in certain proceedings before the income-tax officer under s. 37 of the indian income-tax act, 1922. respondent no. 2 raised a preliminary objection that the learned magistrate could not take cognizance of the said complaint, because the..........matter was referred to the shipping master calcutta. meetings between the representatives of the shipping company and the seamen took place before the shipping master. minutes are available in the case. although oral testimony on behalf of the company seems to the give a lie to some parts of the minutes, it is obvious that some sort of an agreement took place under which the company promised to pay these men the amount though it is not clear whether the amount was to be paid before the commencement of the next voyage or on the termination of the agreement. oral testimony on behalf of the company inclines to the latter. but there is also the evidence that the company had undertaken to pay the seamen the additional amount of 38 paise per person per day before the voyage was resumed. be.....
Judgment:

Hidayatullah, J.

1. This is an appeal on behalf of ten appellants who were charged for deserting their ship 'S. S. Nilgiri' on or about April 22, 1964. They were convicted under Sections 191(1)(a) and (b) and 194(b) and (e) read with s. 436 of the Merchant Shipping Act, 1958. Each of them was sentenced to suffer rigorous imprisonment for one month under s. 191(1)(a) read with s. 436 of the Act and also to forfeiture of 1/25 of the wages due. Under s. 194(e) they were fined Rs. 20/- each but no separate sentences were passed against them under s. 191(1)(b) and s. 194(b) of the Act. Their application for revision in the High Court of Calcutta was summarily rejected. They now appeal by special leave granted by this Court.

2. The facts of the case are that the appellants had entered into a half-yearly agreement with the Eastern Steamship Ltd. to navigate 'S. S. Nilgiri' (Captain Hunter) between December 11, 1963 and June 10, 1964. The terms of their agreement are exhibited as Ex. 1 in the case. It appears that they had performed some voyages on board 'S. S. Nilgiri' and on the day on which they are alleged to have deserted the ship, it had berthed in the Calcutta Port. According to the custom obtaining in merchant shipping the ratings were allowed some bazar money (victualing charges). The appellants claim that they should have been paid Rs. 1/- per day (the Company was paying only .62 paise per day). When the ship was in dock, the appellants put in this demand on 21/22-4-1964, and the matter was referred to the Shipping Master Calcutta. Meetings between the representatives of the Shipping Company and the seamen took place before the Shipping Master. Minutes are available in the case. Although oral testimony on behalf of the Company seems to the give a lie to some parts of the minutes, it is obvious that some sort of an agreement took place under which the Company promised to pay these men the amount though it is not clear whether the amount was to be paid before the commencement of the next voyage or on the termination of the agreement. Oral testimony on behalf of the company inclines to the latter. But there is also the evidence that the Company had undertaken to pay the seamen the additional amount of 38 paise per person per day before the voyage was resumed. Be that as it may, it appears that labour leaders at this stage began to take a hand in the dispute and prompted the appellants to leave the vessel in a body. As a result the ship could not leave that port because the ratings has abandoned it and were not available at the appointed time to sailing.

3. The Presidency Magistrate before whom the appellants were tried for the offences already mentioned, held that their conduct amounted to desertion and that as they had no reasonable excuse for leaving their ship, they were guilty of the offences charged. He accordingly sentenced them as already stated. The High Court summarily rejected their revision.

4. In this appeal it is contended (a) that there was no desertion on the part of the appellants, and (b) even if they be held to have left the ship they were protected by the fact that there was reasonable cause for absenting themselves at the time of the sailing of the ship.

5. The matter is governed by the Merchant Shipping Act, 1958. It does not define what is meant, by desertion; but in Moore v. Canadian Pacific Steamship Co. [1945] 1 All E.R. 128, Mr. Justice Lynskey gave a definition of 'desertion' from an early case (The West-morland) (1841) 1 Wm. Rob. 216, as follows :-

'I think a deserter is a man who leaves his ship and does not return to it with no other purpose than to break his agreement.'

6. The gist of desertion therefore is the existence of an animus not to return to the ship or, in other words, to go against the agreements under which the employment of seaman for sea voyages generally takes place. In our opinion, this definition may be taken as a workable proposition for application to the present case. There is nothing in this case to show that after the seamen left the vessel, they intended to return to it. In fact they went and later took their baggage, because under the law penalty includes forfeiture of the effects left on board. The whole tenor of their conduct, particularly the intervention of labour leaders is indicative of the fact that they left the ship with no intention to return to it unless their demands were met forthwith even though before the Master the Company had stated that the matter would be finally considered at the end of the voyage and the termination of the agreement. There are provisions in the Act under which the seamen have got rights to enforce payment against their employers by taking recourse to a Magistrate who in summary proceedings may decide what amount is due to them and order its payment. It is true that this action could only be taken at Cochin where the registered office of the Company is situate, but in any event the crew were required under the agreement to take back the vessel to Cochin and could well have waited till they returned to the home port and then made the demand before the appropriate authority. The way they have acted clearly shows that they were using the weapon of strike with a view to force the issue with their employers and were not intending to return to the vessel unless their demands were acceded to immediately. In these circumstances, it is legitimate to infer that they were breaking the agreement with the company which was to keep the ship in voyage up to June 10, 1964 which could not take place if all the crew remained on shore and the vessel could not weigh anchor and leave the port without ratings. We are therefore, satisfied that this was a case of desertion and that it fell within the definition of the terms as stated by us.

7. Section 191(1) is in two parts. The first part deals with only desertion and therefore, if desertion was proved, the penalty which the law provides under the act was duly incurred. There is no excuse against desertion because reasonable cause which is indicated in the same section is included in clause (b) and not in clause (a). But even if one were to view their conduct as falling under (b) and not (a) as the courts have held, we see no excuse on their part. The operation of shipping requires constant attention from its crew and it is not possible for a shipping company or a vessel to ply the ship if the crew at every port make demands and leave the ship in a body. Such conduct would be subversive of all discipline on board. It is not so long ago that seamen were put in stocks and chains and the leaders were made to walk the plank or hung from the yard-arm or at the least were flogged. The law has made the life of seamen a little more liberal but has chosen to regard their duties as of paramount importance and has therefore, in addition to the ordinary liabilities which arise under the general law, added a penalty of imprisonment for absence from duty without reasonable cause and has also provided for forfeiture of wages and the effects left on board. This indicates that the policy of the law is that the crew must perform their duties under such agreements as they execute with the shipping company on pain of being found guilty and punished if they cannot make our that they had sufficient and reasonable cause for what may otherwise be regarded as dereliction of duty. In our opinion in the present case there was not that sufficient cause even for purpose of clause (b) of s. 191(1). After all the dispute was before the Shipping Master, meetings had taken place and minutes had been recorded. The log book of the Shipping Company would show the different voyages and their duration and the muster roll would show the attendance of the crew. It was a matter of mere arithmetical calculation between Rs. 1/- per day and .62 paise per day to find out how much money was due to each of the ratings. This would not amount to more than Rs. 30/- or Rs. 40/- per person and this claim might well have waited till the completion of the voyage, because the record of the entire proceedings was kept in the Shipping Master's office and there was machinery in law for the enforcement of a demand. In our opinion, the ratings were overweighed by their leaders and were induced to leave the ship in a body in a manner which can only be described as desertion and therefore their offence was fully established. We see no reason therefore to interfere in this appeal which fails and will be dismissed.

8. Appeal dismissed.


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