Santosh .Kumar

Jain ...

Th1Stal1

P111anjali

SastriJ.

1'51

Muabl9.

SUPREME COURT REPORTS [1951]

person. The decision was reversed and Lord Thankerton, delivering the judgment of the Board, observed : "In the opinion of their Lordships, the function of subsection (2) is merely an illustrative one; the rule-making power is conferred by sub-section (1), and "the rules" which are referred to in the opening sentence of subsection (2) are the rules which are authorised by, and made under, sub-section ( 1) ; the provisions of sub-section (2) are not restrictive of sub-section (1), as, indeed is expressly stated by the words "without prejudice to the generality of the powers conferred by sub-section (1)". "There can be no doubt-as the learned Judge himself appears to have thought-that the general language of sub-section (1) amply justifies the terms of rule 26, and avoids any of the criticisms which the learned Judge expressed in relation to subsection (2) ".

This accords with our view of the effect of subsections (l) and (2) of section 3 of the Act.

The appeal is dismissed. The appellant's bail bond is cancelled and he is ordered to surrender.

Appeal dismissed.

Agent for the appellant: Rajinder Narain.

Agent for respondent and Intervener: P. A. Mehta.

R.R. CHARI

THE STATE OF UTTAR PRADESH

[SHIU Rum.AL KANIA C.J, PATANJALI SASTRI

and DAS JJ.)

Indian Penal Code (XLV of 1860),

SI. 161. 165-Criminal l'rocedure Code, 1898, ss. 190, 197-Preveniion of Corruption Act

(II of 1947), ss. 3, 6-0fjence under ss. 161 and 165, l.P.C.-Warra.nt issued by Magistrate during investigation by police-Sanction under s. 197, Cr. P. C., not obtained before iS1uing warrant- Le11ality of trial-When Magistrate takes "cognisance" of offence.

Un"r •· of the Prevention of Corruption Act, 1947, an offcnc:c pllnishable under •· 161 or s. 165 of the Indian Penal Code

is a cognisable offence for the purposes of the Crimnial Procedure Code subject to the condition that the police shall not investigate without an order of .a magistrate of the first class or make an ar'rest without a warrant; and when the police apply for a warrant of arrest during investigation under s. 3 of the said Act and the magistrate issues a warrant, he is not deemed to have taken cognisance of the case under s. 190 of the Criminal Procedure Code and the fact that sanction of the Government under s. 197 of the Criminal Procedure Code had not been obtained before the warrant wa:s issued would not vitiate the trial.

Having regard to the wording of s. 3 of the said Act the view that the magistrate can issue a warrant only after taking cognisance of the offence under s. 190 of the Criminal Procedure Code, is unsound.

Before it can be said that a . magistrate has taken . cognisance of an offence under s. 190 (l)(a) of the Criminal Procedure Code, he must not only have applied his mind to rhie contents of the petition but have done so for the purpose of proceeding under s. 200 and the subsequent provisions of the Code.

Where he applied his mind only for ordering investigation or issuing a warrant for purposes of investigation he cannot be said to have taken cognisance of the offence.

Emperor v. Sourindra Mohan Chuckel'butty (I.L.R. 37 Cal. '412) clistinguished.

Observations of Das Gupta J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar

Ban'er; ee (A.LR. 1950 Cal. 4.37) approved.

Gopal Mandari v. Emperor (A.LR. 1943 Pat. 245) referred to.

CRIMINAL

APPELLATE JURISDICTION: Appeal {Criminal Appeal No. 1 of 1950) by special leave from an order of the High Court of Allahabad.

N. P. Asthana and N. C. Chatterjee (K. B. Asthana, with them) for the appellant.

P. L.

Banerjee ' (Shri Ram, with him) for the respondent.

1951. March 19. The judgment of the Court was delivered by

KANIA C.J.-This 1s an appeal by special leave ctgainst an order of the Allahabad High Court dismissing the revision petition of the appellant against the order of the Special Magistrate refusing to quash the proceedings on the ground that the prosecution of the appellant inter alia under sections 161 and 165 of

Tht Stott ef Uttar .Pradesh.

....... c.3.

1951

R. l!. Ck'!fi

Ths Stateqf Ultu PT..Ush,

lr•nic C.J.

the Indian Penal Code was illegal and without jurisdiction in the absence of the sanction of the Government under section 197 of the Criminal Procedure

Code and section 6 of the Prevention of Corruption Act (II of 1947), hereafter referred to as the Act. The material facts are these.

In 1947 the appellant held tjie office of Regional Deputy Iron and Steel Controller, Kanpur Circle, U.P., and was a public servant.

The police having suspected the appellant to be guilty of the offences mentioned above applied to the Deputy Magistrate, Kanpur, for a warrant of his arrest on the 22nd of October, 1947, and the warrant was issued on the next day.

The appellant was arrested on the 27th of October, 1947, but was granted . ball.

On the 26th of November, 1947, the District Magistrate cancelled his bail as the Magistrate considered that the sureties were not proper.

On the 1st of December, 1947, the Government appointed a Special Magistrate to try offences under the Act and on the 1st December, 1947, the appellant was produced before the Special Magistrate and was granted bail. The police continued their investigation.

On the 6th of December, 1948, sanction was granted by the Provincial Government to prosecute the appellant inter alia under sections 161 and 165 of the Indian Penal Code.

On the 31st January, 1949, sanction in the saine terms was granted by the Central Government. In the meantime as a result of an appeal made by the appellant to the High Court of Allahabad the amount of his bail was reduced and on the 25th of March, 1949, the appellant was ordered to be put up before the Magistrate to answer the chargcsheet submitted by the prosecution.

On behalf of the appellant it is argued that when the warrant for his arrest was issued by the Magistrate on the ~2nd of October, 1947, the Magistrate took cognizance of the offence and, as no sanction of the Government had been obtained before that day, the initiation of the proceedings against him, which began on that day without the sanction of the Government, was illegal.

It is argued that the saine proceedings arc continuing against him and thercfofe the notice to

appear before the Magistrate issued on 25th March, 1949, is also illegal. In suppon of his contention that the Magistrate took cognizance of the offences on 22nd March, 1947, .he relies principally on certain observations in Emperor v. Sourindra Mohan Chuckerbutty(1).

It is therefore necessary to determine when the Magistrate took cognizance of the offence. The relevant part of section 190 of the Criminal Procedure Code runs as follows :-

190. ( 1) "Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence--

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a repori: in writing of such facts made by :any police officer;

(c) upon information received from any. person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed ... "

It is clear from the wording of the section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the section. The first contingency evidently is in respect of non-cogQizable offences as defined in the Criminal Procedure Code on the complaint of an aggrieved person. . The second is on a police report, which evidently is the case of a cognizable offence when the police have completed their investigation and -come to the Magistrate for the issue of a process. . The . third is when the Magistrate himself takes notice of an

-0ff ence and issues the process. It is important to remember that in respect of any cognizable . offence, the police, at the initial stage when they arc investigating the . matter, can arrest a person without obtaining an (ll J, L.R, 37 Cal. 412.

TA• State ef Uttar Pr11t/esh.

Kaaia C.J.

R.R.Cltmi

TAIStattqf Ut1ar Pradesh.

K'ania C.j.

order from the Magistrat.e.

Under section 167(b) of the Criminal Procedure Code the police have of courte to put -up the person so arrested before a Magistrate within 24 hours and obtain an order of remand to police custody for the purpose of further investigation, if they so desire. But they have the power to arrest a person for the purpose of investigation without approaching the Magistrat.e first.

Therefore in cases of cognizable offence before proceedings arc initiated and while the matter is under investigation by the police tht suspected person is liable to be arrested by the police without an order by the Magistrat.e. It may also be noticed that the Magistrate who makes the order of remand may be one who has no jurisdiction to try the case.

The offences for which the appellant is charged are under the Criminal Procedure Code non-Cognizable and therefore -if the matter fell to be determined only on the provisions of the Criminal Procedure Code the appellant tould not be arrested without an order of the Magistrate.

The position however is materially altered because of section 3 of the Act which runs as follows:-

3. "An offence punishable under section 161 or section l65 of the Indian Penal Code shall be deemed to be a cognizable offence for the purposes of the Code of Criminal Procedure, 1898, notwithstanding anything to the contrary contained therein.

Provided that a police officer bClow the rank of Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the first class or make any arrest therefor without a warrant."

Jt therefore follows ·.that for the Prevention of Corruption Act, offences under sections 161 and 165 of the Indian Penal Code become cognizable, notwithstanding what is provided in the Criminal Procedure Code. The proviso to section 3 of the Act puts only two limitations on the powers of the police in connection with the investigation relating to those offences

under the Act. They are: ( l) that the investigation

\ •

should be conducted by an officer not below the rank of a Deputy Superintendent of Police unless a Magistrate of the first class otherwise orders; and (2) if an arrest has to be made an order of the Magistrate has to be obtained. The important p9int to be borne in mind is that the order of the Magistrate; which has to be obtained, is during. the time the police is investigating the case and not when they have completed their investigation and are initiating the proceedings against the suspected person under section 190 of the Criminal Procedure Code. The order which may be applied for and made during the police investigation by virtue of section 3 of the Act is therefore before the Magistrate has taken cognizance of the offence under section 6 of the Act or section 190 of the Criminal pr<>- cedure Code.

That appears to us to be the result of reading sections 3 and 6 of Act II of 1947 and section 190 of the Criminal Procedure Code read with the definition of cognizable offence in the Code.

The argument of the . appellant is that when the Magistrate issued the warrant in October, 1947, he did so on taking cognizance of the offence under section 161 or 165 of the Indian Penal Code under section 190 of the Criminal Procedure Code. It was contended that without such cognizance the Magistrate had no jurisdiction to issue any process as that was the only section which permitted the Magistrate to issue a process. against a person suspected of having committed an offence. In our opinion having regard to the wording of section 3 of the Act the assumption that the Magistrate can issue a warrant only after taking cognizance of an offence under section 190 of the Criminal Procedure Code is unsound.. The proviso to section 3 of the Act expressly covers the case of a Magistrate issuing a warrant for the arrest of a person in the course of investigation only and on the footing that it is a cognizable offence. Section 3 . of the Act which makes an offence under section 161 or 165 of the Indian

t Penal Coae cognizable has provided the two safe.· guards as the proceedings are contemplated against a public servant.

But because of these safeguards it

R.R.ChMi

Th• Stat1 of Ultar PrllUs/i.

Kanio.C.j.

lf, R; C~ •.

Tl• S1.t1qf UtN1 Pi-ad, s4.

Kai• C.j.

does not follow that the warrant issued by the Magistrate under section 3 of the Act is after cognizance of the offence, and not during the course of investigation by the police in respect of a cognizable offence.

The only effect of that proviso is that instead of the police officer arresting on his own motion he has got to obtain an order of the Magistrate for the arrest.

In our opinion, it is w.rong from this featblre of section 3 of the Act alone to contend that because the warrant i.j issued it must be after the Magistrate has taken cognizance of it and the Magistrate's action can 'be only under section 190 of the Criminal Procedure Code.

The mateaa1 part of section 197 of the Criminal Procedure Code provides that where. any public servant who is not removable from his office save with the sanction of Government is accused of an offence alleged to have been committed by him while acting or pur~ porting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the appropriate Government.

This section read as following section 190 shows that the word 'cognizance' in this sect-ion indicates the stage of initation of proceedings against a public servant.

Sections 190 to 199-B of the Criminal Procedure Code are grouped together under the caption "Initiation of proceedings". The sections dealing with the' . stage of investigation by the police in the case of cognizable offences are quite, different. T bder section 6 of the Act it is provided that no court shall take cognizance of an offence punishable under section 161 or 165 of the Indian Penal Code .... alleged to have been committed by a public servant except with the previous sanction of the appropriate Government. Reading sections 197 and 190 of the Criminal Procedure Code and section 6 o{ the . Act in the light of the wording of the proviso to section 3, it is therefore clear that the stage at. which a warrant is asked for under the proviso to section 3 of the Act is not on cognizance of the offence by the Magistrate as contemplated .by the other three sections.

Learned counsel for the appellant relied on some observations in Emperor v. Sourindra Mohan Chuckerbutty(1 ), in respect of the interpretation of the word 'cognizance'. In that case, on the 24th April, 1909, a dacoity took place at N and on the same day the police sent up a report of the occurrence to the Sub-divisional officer of Diamond Harbour.

On the 2nd September one of the accused was arrested and he made a confession on the 18th October. The case was subsequently transferred by the District Magistrate of Alipore to his own file and on the 20th January, 1910, an order under section 2 of the Criminal Law Amendment Act (XIV of 1908) was issued in the following terms :-

"Whereas the District Magistrate of the 24-Parganas has taken cognizance of offences under ss. 395 and 3<Jl, r. P. C., alleged to have been committed by the persons accused in the case of Emperor v. La/it Mohan Chttkerbutty and others_. .... and whereas it appears to the Lieutenant-Governor of Bengal. ... the provisions of Part 1 of the Indian Criminal Law Amendment Act should be made to apply to the proceedings in respect of the said offences, now, therefore, the Lieutenant-Governor. . . directs ... that the provisions of the said

Part shall apply to the said case." S surrendered on the 24th of January and was arrest.cd by the police and put before the Joint Magistrate of Alipore who remanded him to Jail. Applications for bail on his behalf were made but they were dismissed. The Sessions Judge was next moved unsuccessfully for bail under section 498 of the Criminal Procedure Code.

S then moved the High Court for a Rule calling upon the District Magistrate to show cause why bail should not be granted on the grounds (1) that no order had been made applying Act XIV of 1908 and (2) that there did not appear any sufficient cause for further inquiry into the guilt of S.

The first contention rested on the assertion that the Magistrate had not taken cognizance of the offence of dacoity on the 20th of January.

The learned Judges pointed out that the argument was advanced because .the legal adviser of S had (l} I. L. R. 37 Cal. +12.

R.R. Cliari

Th1St11t1 ef Uttar Pradesh.

E1mic C.J.

TMS1attof Uttar PtadelfJ,

K'Onia C. J.

no opportunity to see the record of the case. On the facts . it was clear that tl1e Magistrate had taken cognizance of the offence on the 20th of January.

The observations "taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a magistrate as such applies his mind to the suspected commission of an offence" have to be read in the light of these facts.

As noticed above, the magistrate had expressly recorded that he had taken cognizance of the case and thereupon the provisions of the Criminal Law Amendment Act were m:.de applicable to the case. The question argued before the High Court was in respect of the power of the High Court to grant bail after the provisionsof the Criminal Law Amendment Act were applied to the case. In our opinion therefore that decision and the observations therein do not help the appellant.

In Gopal Marwari v. Emperor('), it was observed that the word 'cognizance' is ustd in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a differ- . ent thing from the initiation of proceedings.

It is the condition precedent to the initiation of proceedings by the Magistrate. The court noticed that the word 'cognizance' is a word of somewhat indefinite import and it is perhaps not always used in exactly the same sense.

After referring to the observations in Emperor v.

Sourir.dra Mohan Chulcerbutty(2}, it was stated by Das Gupta J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kum11r Banerjee(") as follows :-''What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attc!npt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under section 190(1) ta), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose

(1) A.LR.1943!'at.245,

(3) A.I.R.1950 Cal.437.

(2) I. L. R. 37 Cal.412;

of proceeding in a partieular way as indicated in the subsequent provisions of this Chapter-proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence." In our opinion that is the correct approach to the question before the court.

Moreover, in the present case on the 25th March, 1949, the Magistrate issued a notice under section 190 of the Criminal Procedure Code against the appellant and made it returnable on the 2nd of May, 1949. That clearly shows that the Magistrate took cognizance of the offence only on that day and acted under section 190 of the Criminal Procedure Code. On the returnable date the appellant contended that the sanction of the Central Government was void because it was not given by the Government of the State. On the decision going against 1iim he appealed to the High Court and to the Privy Council. The appellant's contention having thus failed, the Magistrate proceeded with the trial on the 26th of November, 1949.

The only question which is now presented for our decision therefore is whether there was any sanction granted by the Government before the Magistrate took cognizance of the offence and issued the notice under section 190 of the Criminal Procedure C.odc on the 25th March, 1949. To that the clear answer is that the Government had given its sanction for the prosecution of the appellant before that date. It seems to us therefore that the appellant's contention that the Magistrate had to take cognizance of the offences without the previous sanction of the Government is untenable and the appeal fails.

Appeal dismissed.

Agent for the appellant: S. S. Shukla.

Agent for the respondent: C. P. Lal.

TkeStateof Uttar Pradesh.

Fiania C.J.

section 3

Rajinder Narain

P. A. Mehta

R.R. CHARI

THE STATE OF UTTAR PRADESH

SHIU Rum.AL KANIA C.J

PATANJALI SASTRI

DAS JJ.

Indian Penal Code

ss. 190, 197

Preveniion of Corruption Act

ss. 3, 6

ss. 161 and 165

s. 197

Prevention of Corruption Act, 1947

s. 165

Indian Penal Code

s. 3

s. 190

s. 197

s. 3

s. 190

s. 190

s. 200

Das Gupta

High Court of Allahabad

N. P. Asthana

N. C. Chatterjee

K. B. Asthana

L.

Banerjee

Ram,

KANIA

Allahabad High Court

sections 161 and 165

Indian Penal Code

section 197

section 6

Prevention of Corruption Act

Kanpur

22nd of October, 1947

27th of October, 1947

26th of November, 1947

1st of December, 1947

1st December, 1947

6th of December, 1948

sections 161 and 165

Indian Penal Code

31st January, 1949

Central Government

25th of March, 1949

~2nd of October, 1947

25th March, 1949

22nd March, 1947

section 190

State ef Uttar Pr11t

Kaaia

K'ania C.j

section 167(b)

section 3

section 161

Indian Penal Code

Code of Criminal Procedure, 1898

Prevention of Corruption Act

sections 161 and 165

Indian Penal Code

section 3

section 190

section 3

section 6

section 190

sections 3 and 6

section 190

section 161

Indian Penal Code

section 190

section 3

section 190

section 3

Section 3

section 161

section 3

section 3

section 190

section 197

section 190

Sections 190 to 199

section 6

section 161

Indian Penal Code

sections 197 and 190

section 6

section 3

section 3

24th April, 1909

Diamond Harbour

District Magistrate of Alipore

20th January, 1910

section 2

Criminal Law Amendment Act

District Magistrate of the 24-Parganas

ss. 395 and 3

Indian Criminal Law Amendment Act

24th of January

Alipore

section 498

R.R. Cliari

R.R. Cliari

Th1St11t1 ef Uttar Pradesh.

TMS1attof Uttar PtadelfJ

K'Onia

Criminal Law Amendment Act

Criminal Law Amendment Act

section 190(1)

Criminal Procedure Code

section 200

section 202

section 156(3)

section 190

2nd of May, 1949

section 190

26th of November, 1949

section 190

S. S. Shukla

C. P. Lal

Fiania


Ma1'Ch 19,

SUPREME COURT REPORTS [h)51]

RAVULA HARIPRASADA RAO

11.

THE STATE.

[SAIYID FAZL ALI, MEHR CHAND MAHAJAN, MUKHERJEA, and CHANDRASEKHARA AIYAR JJ.]

Criminal law-Mens rea-'-M otor Spirit Rationing Order, 1.941, els. 22, 25, '1:1-Defence of India Rules, 1939, r. 81 (4)-Supply of petrol without coupons-Omission to make prescribed entries in coupons-Liability of employer for acts of employees-C onstrudion of statutes.

Unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of the crime, a person should not be found guilty of an offence against the criminal law unless he has got a guilty mind.

Clauses 22 and 25 of the Motor Spirit Rationing Order, 1941, read with the Defence of India Rules, 1939, do not rule out the necessity of mens rea. Therefore, where the employees of the licensee of a petrol filling station supply petrol to a car-owner without taking coupons and thus act in contravention of the provisions of the said clauses, the licensee, who was not present when the wrongful act was done and had no knowledge of it, could not be convicted for contravention of the said clauses under r. 81 (4) of the Defence of India Rules, 1939.

Clause Z1 of the said Order is however differently worded aud imposes a duty on the supplier to endorse or cause to be endorsed the registration or other identifying mark of the vehicle to which petrol is furnished and if these particulars are not endorsed by his employees on the petrol coupons against which petrol is supplied the supplier would be liable even if he had no knowledge of the wrongful act of his employees.

Srinivas Mall Bairolia v. King Emperor (l.L.R. 26 Pat. 46, P.C.) and Isak Solomon Macmull v. Emperor (A.l.R. 1948 Born.

364) referred to.

CRIMINAL APPELLATE JURISDICTION : Appeal (Criminal Appeal No. 15 of 1950) from a judgment and order of the High Court of Madras dated 19th August, 1947. in Criminal Revision Petitions Nos. 1017 and 1018 of

1946 rejecting an application to set aside the conviction and sentence of the appellant by the Sessions Judge of Guntur under clauses 22 and 27 of the Motor Spirit Rationing Order, 1941.

Special leave was

granted by the Privy Council and the, appeal was originally registered as Privy Council Appeal No. 14 of 1949. The case was subsequently transferred to the Supreme Court.

K. Bhimasankaran (Durga Bai, with him) for the appellant.

R. GanapathiIyer, for the respondent.

1951. March 19, The judgment of the Court was delivered by

FAZL ALI J.-This appeal, whic~ has been preferred after obtaining special leave to appeal from the Privy Council, is confined to the single question whether mells rea is necessary to constitute an offence under section 81 of the Defence of India Rules.

The facts of the case are briefly these. The appellant is the licensee of two petrol filling stations Nos. 552 and 276 at Guntur but is a resident of Chirala, 40 miles away. He is a Presidency First Class Bench Magistrate at Chirala and manages what has been described as a vast business at several places. Ch. Venkatarayudu and Dadda Pichayya, his employees, were respectively in charge of the aforesaid filling stations.

In 1946, the appellant and his two employees were tried before the Sub-Divisional Magistrate of Guntur in respect of offences under the Motor Spirit Rationing

Order, 1941, and were convicted in each of the cases on the 18th July, 1946. In the first case, the charges against the appellant and the employee in charge of the pump in question therein were that they on the 27th June, 1945, at Guntur, supplied petrol to 3 cars without taking coupons, in contravention of clause 22 read with clause 5 of the said Order promulgated under rule 81 (2) of the Defence of India Rules and that they, on the same day and atthe same place, accepted coupons relating to two other cars in advance without supplying petrol, in contravention of clause 27 of the Order. The charges in the second cas.e were that the appellant and the employee in the second pump similarly supplied during the period of 24 hours from 6 a. m. of the 28th June, 1945, petrol to 4 motor vehicles

TheS"m.

Fail Ali J.

Hari, pf'a8ada

Rao v. 'l'he State.

l!'azt Ali J.

without taking coupons, in contravention of clause 22 read with clause 5, accepted coupons of three other vehicles in advance without issuing petrol, in contravention of clause 27, and supplied petrol to two other vehicles against coupons but without making necessary endorsements and particulars on the reverse of the coupons infringing thereby clause 27 A of the said Order. The Sub-Divisional Magistrate, Guntur, found the appellant and the employee concerned in each case guilty of the charges brought against them and sentenced the appellant (with whose case alone we are now concerned) to a fine of Rs. 30 on the first count and Ks. 20 .on the second in the first case with simple imprisonment for one week in default, and to a fine of Rs. 20 on each of the three counts in the second case with one week's imprisonment in default. The plea of the appellant before the Magistrate was that he was the presiding 1st Class Bench Magistrate at Chirala, that he was carrying on business in petrol at various centres through servants and he had issued instructions to them not to deviate from the rules under any circumstances and that he could not be made liable for transgression of the rules committed by his employees. The Magistrate however overruled the plea and convicted the appellant as stated above. The appellant thereafter preferred an appeal to the Sessions Judge at Guntur, who, while setting aside the conviction of the appellant on the second count in each case, confirmed the conviction and sentence in respect of the other charges, on the 9th September, 1946. This was confirmed in revision by the High Court at Madras on the 19th August, 1947. Thereupon, the appellant applied to the .Privy Council for special leave which was granted on the 9th July, 1948, limited to the single question whether mens rea is necessary to constitute an offence under rule 81 of the Defence of India Rules.

The question to be decided in this appeal arises upon the plea taken by the appellant, which has been already referred to, and the assumption on which the courts below have proceeded in dealing with the case . . The plea of the appellant that he was not present at

S.C.R.

SUPREME COURt REPORTS 325

Guntur when the alleged offences were committed has not been negatived by the lower courts, but they have held that he was nevertheless liable, as the question of mens rea was not relevant to the offences with which the appellant was charged. This view is set out very clearly in the following passage which may be quoted from the judgment of the trial Magistrate : -

" It is argued on behalf of accused 1 that he is not a resident of Guntur and that he has no knowledge of any infringement committed by accused 2. If any breach of the rules is committed by either proprietor or his servant, both are guilty whether they had the knowledge of the breach or not. The question of mens rea will, of course, affect the measure of punishment but it cannot affect the conviction (vide 1943, M.L.J. 38)." . .

Before deciding the question ?-S to how far mens rea is material to conviction for the offences with which the appellant is charged, it is necessary to refer to the relevant provisions of the Defence of India Rules and the Motor Spirit Rationing Order, 1941. Rule 81(2) of the Defence of India Rules empowers the Central or the Provincial Government to provide by order, in certain circumstances, for regulating amongst other matters, distribution, disposal, use or consumption of articles or things and for requiring articles or things kept for sale to be sold either generally or to specified persons or classes of persons or in specified circumstances, The Central Government in pursuance of the authority thus conferred made the Motor Spirit Rationing Order, 1941, for ''securing the defence of British India, the efficient prosecution of the war and for maintaining supplies and services essential to the life of the community." Clause 2(d) of the Order defines " dealer " as meaning a supplier carrying on the business of supplying motor spirit as a retail business and includes a person having charge of a supply of motor spirit controlled by Government from which any person is furnished with motor spirit for private use. Sub-clause (m) defines " supplier" as meaning a person carrying on the business of supplying motor

Ravtda Hariprmada

Rao

The Swte.

Fa.ZAUJ.

Bavula Haripraaada

Rao v.

The State.

Faz! Ali J.

spirit .. Clause 5, which is the next relevant provision, runs thus:-

" Motor spirit required for any vehicle not covered by clause 3 or clause 4 shall be furnished or acquired only against the surrender to a supplier at the time of supply of valid ordinary coupons or of a valid supple. mentary coupon and only in accordance with any conditions or instructions appearing on or attached to the coupons."

Clause 22 lays down :

"No person shall furnish or acquire a supply of motor spirit otherwise than in accordance with the provisions contained in this order."

Clause 27 is to the following effect:-

" No person shall surrender to a supplier and no supplier shall accept special receipts or coupons at a time other than the time at which the supply of motor spirit authorised by the special receipts or coupons or acknowledged by the receipts is furnished."

Clause 27A runs as follows:-

" When motor spirit is furnished against the surrender of one or more coupons, the supplier shall immediately endorse,, or cause to be endorsed, on each coupon so surrendered the registration or other identifying mark of the vehicle to which the motor spirit is furnished."

Rule 81(4) of the Defence of India Rules, which provides for the imposition of a penalty, says that " if any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both."

It is contended on behalf of the respondent that though ordinarily a person should not be held liable for the criminal acts of another and no person can be charged with the commission of an offence unless a particular intent or knowledge is found to be present, mens rea is not of the essence of the offences with which we are concerned in this case and the appellant must be held liable for the acts of his employees. The question raised in this appeal was considered by the Privy

Council in Srinivas Mall Bairolia v. King EmperorP).

In that case, the appellants before the Privy

Council were convicted under the Defence of India Rules relating to the control of prices and were sentenced to terms of i1:nprisonment. The 1st appellant was acting as Salt Agent for part of the district of :Oarbhanga. He had been appointed to this office by the District Magistrate, and it was his duty to sell to licensed retail dealers the~ supplies of salt which were allocated by the Central Government to his part of Dharbang~ district. The second appellant was employed by the first. appellant and had been entrusted with the duty of allotting the appropriate quantity of salt to each retail dealer, and noting on the buyer's licence the quantity which he had bought and received.

By rule 81 (2) of the Defence of India Rules, the Provincial Governments were empowered to make orders to provide for controlling the prices at which articles or things of any description whatsoever might be sold.

The Defence of India Act, 1939, under which the rules were framed, empowered the Provincial Governments to delegate the exercise of their powers to certain officers, and the power to provide by order for controlling the prices at which various articles (among them salt) might be sold, had been delegated to the District Magistrates. Rule 81 (4) of the Rules provided for the punishment of persons guilty of contravening any such orders. Both the appellants were jointly charged with having sold salt on 3 days in July, 1943, to three named traders, in each case at a price exceeding the maximum price which had been fixed by order of the District Magistrate. The 1st appellant was also separately charged, in respect of the same sales, with having abetted the 2nd appellant's contravention of the order.

The trial Magistrate acquitted the 1st appellant of the substantive offences but convicted him on the 3 charges of abetting. The Sessions Judge and the High Court

in revision confirmed the convictions.

The Privy Council ultimately upheld the conviction of the appellants on the merits but with regard to the view taken

by the High Court that even if 'the first appellant was

(1) I.L.R. 26 Pai. 48.

.Ravula Haripro"lda

Rao

v. 7'/&e Slate.

Fazl .Ali J.

Rawla Bari~

Baa

The State.

Fazl AUJ,

not proved to have known of the unlawful acts of the second appellant, he was still liable on the ground that "where there is an absolute prohibition and no question of mens rea arises, the master is criminally liable for the acts of the servant", their Lordships observed as follows:-

"With due respect to the High Court, their Lordships think it necessary to express their dissent from this view. They see no ground 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 th~ judgment of Wright J. in Sherras v. De Rutzen('). 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(•)'.'' .

In our opinion, the view of the law as propounded by the Privy Council is the correct view, and, applying it to the present case, it is difficult to hold the appellant guilty of the offence under clause 22 read with clause 5 of the Motor Spirit Rationing Order, 1941.

The language of clause 22 does not lend support to the contention that even an innocent master will be criminally liable for an act of his servant. This clause has already been quoted, but, to make the point clear, it may be stated that it provides that no person shall furnish ...... motor spirit otherwise than in accordance

{11 [18V6] l Q.B. 918, V21,

1~1 {1946) 110 J.P. 817, 818.

with the provisions contained in the Order.

The clause is not aimed specifically against a supplier, but is general in its language, and will hit the individual person, whether he be the supplier or not, who contravenes the provision. The language of the clause also suggests that only the person who furnishes motor spirit contrary to the provisions of the Order

will be affected by the contravention.

In the course of the arguments, reference was made on behalf of the appellant to the decision of the Bombay High Court in Isak Solomon Macmull v. Emperor(1) which is a case relating to the contravention of clause 22 of the Motor Spirit Rationing Order. In that case, the learned Chief Justice, who delivered the judgment, referred to the well established rule that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the defendant should not be held guilty of an offence . under the cri!llinal Jaw unless he has a guilty mind . . Relying upon this rule, he held that where a servant sells petrol to a bogus customer in the absence of coupons in contravention of the Motor Spirit Rationing Order, and the master is not present at the time nor has he any knowledge of the supply of petrol by the servants to the bogus customer, the master cannot be held to be vicariously liable for the act of the servant. In our opinion, this decision is correct and is directly applicable to the present case.

We have yet to deal with the third charge in the second case, which relates to the infringement of clause 27 A of the Motor Spirit Rationing Order. That clause, as already stated, makes it incumbent upon the supplier to endorse, or cause to be endorsed, the registration or other identifying mark of the vehicle to which the motor spirit is furnished. The substance of the charge on which the appellant has been convicted is that these particulars were not endorsed on several coupons against which petrol had been supplied. Here again, the main contention put forward on behalf of the

{I) A.I, R. 1948 Bom, 864,

Ra vu la H ariprasada

Rao v.

The Stat•.

Fazl Ali J.

R.avula Haf'ipramda

Rao

The State.

Fa.I Ali J.

appellant was that the appellant cannot be held guilty inasmuch as the default in question was committed not by him personally, but by his servants. Having regard to the language of the clause, however, this contention cannot be accepted. Clause 27A, as we have already seen, throws the responsibility for making the necessary endorsement on the supplier. The definition of the word 'supplier' in the Act has already been quoted, and there can be no doubt that if clause 27A is contravened, a person who comes within the definition of the word 'supplier' must be held guilty of the contravention. The object of this clause clearly is that the supplier of petrol should set up a complete machinery to ensure that the necessary endorsements are made on the coupons against which petrol is supplied. It is conceivable that in many cases the default will be committed by the servants of the supplier, who are in charge of the petrol pump, but that fact by itself will not exonerate the supplier from liability.

In Mousell Brothers v. London and North-Western Railway('), Viscount Reading C.J., dealing with a case under the Railways Clauses Consolidation Act, 1845, observed as follows:-

" Prima facie, then, a master is not to be made criminally responsible for the acts of his servant to which the master is not a party. But it may be the intention of the Legislature, in order to guard against the happening of the forbidden thing, to impose a liabjlity upon a principal even though he does not know of, and is not party to, the forbidden act done by his servant. Many statutes are passed with this object.

Acts done by the servant of the licensed holder of licensed premises render the licensed holder in some instances liable, even though the act was done by his servant without the knowledge of the master. Under the Food and Drugs Acts there are again instances well known in these Courts where the master is made responsible, even though he knows nothing of the act done by his servant, and he may be fined or rendered amenable to the penalty enjoined by the law. In those

(1) Cl9lf] II :tt.B.D. 838 ol 84',

cases the Legislature absolutely forbids the act and makes the principal liable without a mens rea."

In the same case, Atkin J. expressed the same view in these words :-

" I think that the authorities cited by my Lord make it plain that while prima faci.e a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute ; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person uPon whom it is imposed, the person by whom it would m ordinary circumstances be performed, and the person upon whom the penalty is imposed. If authority for this is necessary it will be found in the judgment of Bowen L. J. in Reg. v.

Tylor(1)."

In Mullins v. Collins(2), the servant of a licensed victualler having knowingly supplied liquor to a constable on duty without the authority of his superior officer, it was held that the licensed victualler was liable to be convicted although he had no knowledge of the act of his servant.

In dealing with the case, Blackburn J. observed thus :- '' If we hold that there must be a personal knowledge in the licensed person, we should make the enactment of no effect."

There are many other cases in England in which the same view has been enunciated, and some of them have been collected and classified in the judgment of Wright J. in Sherras v. De Rutzen(3).

The principle laid down in these cases has been followed in several cases in this country also.

In this view, the appeal is allowed in part, and while the conviction and sentence imposed on the

11. [1891 J 2 Q B •ss, b91.

(2) l\814) L.R. 9 Q.B. 292.

( 9) (1~95] 1 Q B. 918, 922.

Th• Stale.

Fazl AUJ.

Ma""' 14.

appellant on the first charge in both the cases are quashed, the conviction and sentence on the third charge in the second case are affirmed . . Appeal allpwed in part.

Agent for the appellants: S. Subramanian.

Agent for the respondent: P. A. Mehta.

SREE SREE ISWAR GOPAL JIEU THAKUR

II.

PRATAPMAL BA.GARIA AND OTHERS.

(Civil Appeal No. 95 of 1949)

PRATAPMAL BAGARIA AND OTHERS

II.

SREE SREE ISWAR GOPAL JIEU THAKUR.

(Civil Appeal No. 96 of 1949)

[SAJYJD FAZL ALI, s. R: DAS and

CBANDRASEKHARA AIYAR JJ.)

RelifiO#S e""-ents-Alienation by trustee-Legal necessity -01' lr•,.IMlions-Original parties and witnesses not a•ailable- V alue of ,.citals-Permanent lease-Not questioned by successive trustu1-Presumption of validity.

Where the issue is whether there was legal necessity for a particular transaction, if all the original parties to the transaction and those who could have given evidence on the relevant points have passed away, a recital consisting of the principal circumstances of the case assumes greater importance and cannot be lightly set aside.

Ba,.ga Chandra Dhar Biswas v. ]agat Kishore Chowdhuri (43 I.A. 249) referred to.

Where the.validity of a permanent lease granted by a shebait has remained unquestioned for a very long time since the grant, although it is not possible to ascertain fully what the circumstances were in which it was made, the Court should assume that the grant was made for necessity so as to be valid beyond the life time of the gran tor.

RAVULA HARIPRASADA RAO

THE STATE

SAIYID FAZL ALI

MEHR CHAND MAHAJAN

MUKHERJEA

CHANDRASEKHARA AIYAR JJ.

Defence of India Rules, 1939

Defence of India Rules, 1939

Defence of India Rules, 1939

High Court of Madras

Sessions Judge of Guntur

Supreme Court

K. Bhimasankaran

Durga Bai

R. GanapathiIyer

FAZL ALI

section 81

Guntur

Chirala

Ch. Venkatarayudu

Dadda Pichayya

Sub-Divisional Magistrate of Guntur

18th July, 1946

27th June, 1945

clause 22

clause 5

clause 27

clause 22

clause 5

clause 27

clause 27

Sub-Divisional Magistrate, Guntur

Sessions Judge at Guntur

9th September, 1946

High Court at Madras

19th August, 1947

9th July, 1948

Central or the Provincial Government

Central Government

British India

Clause 2(d)

Bavula Haripraaada

State

Clause 5

clause 3

clause 4

Clause 22

Clause 27

Clause 27A

Oarbhanga

Dharbang~

Defence of India Act, 1939

.Ravula Haripro"lda

.Ravula Haripro"lda

Rao

v. 7'/&e Slate.

Wright

England

clause 22

clause 5

clause 22

Bombay High Court

clause 22

clause 27

Clause 27A

clause 27A

Atkin

Parliament

Bowen

Blackburn

S. Subramanian

P. A. Mehta

SREE SREE ISWAR GOPAL JIEU THAKUR

PRATAPMAL BA.GARIA

PRATAPMAL BAGARIA

SAJYJD FAZL ALI

CBANDRASEKHARA AIYAR


Ma""' 14.

SUPREME COURT REPORTS [1951)

appellant on the first charge in both the cases are quashed, the conviction and sentence on the third charge in the second case are affirmed . . Appeal allpwed in part.

Agent for the appellants: S. Subramanian.

Agent for the respondent: P. A. Mehta.

SREE SREE ISWAR GOPAL JIEU THAKUR

II.

PRATAPMAL BA.GARIA AND OTHERS.

(Civil Appeal No. 95 of 1949)

PRATAPMAL BAGARIA AND OTHERS

II.

SREE SREE ISWAR GOPAL JIEU THAKUR.

(Civil Appeal No. 96 of 1949)

[SAJYJD FAZL ALI, s. R: DAS and

CBANDRASEKHARA AIYAR JJ.)

RelifiO#S e""-ents-Alienation by trustee-Legal necessity -01' lr•,.IMlions-Original parties and witnesses not a•ailable- V alue of ,.citals-Permanent lease-Not questioned by successive trustu1-Presumption of validity.

Where the issue is whether there was legal necessity for a particular transaction, if all the original parties to the transaction and those who could have given evidence on the relevant points have passed away, a recital consisting of the principal circumstances of the case assumes greater importance and cannot be lightly set aside.

Ba,.ga Chandra Dhar Biswas v. ]agat Kishore Chowdhuri (43 I.A. 249) referred to.

Where the.validity of a permanent lease granted by a shebait has remained unquestioned for a very long time since the grant, although it is not possible to ascertain fully what the circumstances were in which it was made, the Court should assume that the grant was made for necessity so as to be valid beyond the life time of the gran tor.

Bawa Magniram Sitaram v. Kasturbhai Manibhai (49 I.A. 54) 1951 referred to. _ - Sree Sree Iswar CIVIL APPELLATE JURISDICTION : Appeals from GopaZ J>eu judgments and decrees of the High Cort o.f Judicature Thakur at Calcutta dated 25th August, 1943, m First Appeals v.

Nos. 20 and 173 of 1939 which arose out of a decision Pra~ of the President of the Calcutta Improvement Tribunal

B":,;~;8~ in Case No. 95 of 1935.

Civil Appeals Nos. 95 and 96 of 1949.

Panchanan Ghose (Upendra Chandra Mullick, with him) for the appellant in Civil Appeal No. 95 and respondent in Civil Appeal No. 96.

S.P. Sinha (Nagendra Nath Bose, with him) for respondents Nos. 1 to 3 in Civil Appeal No. 95 and appellants Nos., 1 to 3 in Civil Appeal No. 96.

S. N. Mukherjee, for respondent No. 4 in Civil Appeal No. 95.

1951. March 14. The judgment of the Court was delivered by

-FAZL ALI J.-These appeals are directed againstthe ra:iuJ. judgment and decree of the High Court of Judicature at Fort William in West Bengal, confirming a decision of the President of the Calcutta Improvement Tribunal, which modified an award of the First Land Acquisition Collector of Calcutta, made under the Land Acquisition Act in respect of the acquisition of two premises, which may conveniently be referred _ to as Nos. 140 and 141, Cotton Street. - In order to understand the points of contest between the various claimants. to the compensation awarded in the case, it seems necessary to refer to certain facts' showing how they came to be interested in the premises which are the subject-matter of the land acquisition proceedings. These premises belonged at one time to one Sewanarayan Kalia, and afterwards they became the property of a deity, Sree Sree Iswar Gopal Jieu Thakur, installed by Sewanarayan Kalia at

Chinsurah in the district of Hoogly. Sewanarayan, who had three wives, died in 1836, leaving behiQd him his third wife, Muni Bibi, two daughters by his

1951 predeceased wives, these being Jiban Kumari and

S S- 1 Amrit Kumari, and a mistress named Kissen Dasi.

"" '" '"""'O A Gopa! Jieu n the 23rd ugust, 1836, these persons executed a Thakur deed of solenama which was in the nature of a family v. arrangement, by which the remainder of the estate of

Pratapmal Sewanarayan (i.e., what was left after excluding the Bagai-ia and dedicated properties) was divided in the terms of his

Otlw•. will, with the result that Muni Bibi got subject to ra.z Ali J. certain conditions, among other properties, the premises described as 140, Cotton Street, and Jiban Kumari got the contiguous premises, No. 141, Cotton Street. Muni Bibi and Jiban Kumari also became the shebaits of the Thakur or deity with power to appoint their successors. On the 20th January, 1848, Muni Bibi by an arpannamadedicated 140, Cotton Street, to the Thakur.

It is recited in this deed, among other things, that on account of annual droughts and inundation and consequent diminution in the produce of the lands, certain properties .dedicated to the sewa of the deity had been sold for arrears of revenue, that "Jiban Kumari had been making advances from her private funds for the expenses of jatra, mahotsob etc., of the deity, when the amount fell short, this being against the provisions laid down by her late husband", that the house known as 140, Cotton Street, having been let out, was yielding a rent of Rs. 30 p.m., that after deducting the necessary expenses the surplus income left was Rs. 20

p.m., and that "if this amount was included in the expenses for the sheba etc., of the deity every month, the provision made by her deceased husband may remain in force." After reciting these facts, it is stated that the rental of the house "shall be permanently and perpetually jncluded in the expenses of the sheba." About 20 years later, on the 30th September, 1869, Muni Bibi created a permanent (maurasi mokrari) lease of the premises bearing No. 140, Cotton Street, in her capacity as a shebait in favour of one Nehal Chand Panday (who was admittedly a benamidar for one Bhairodas Johurry), at a rental of Rs. 25 p. m. (See exhibit L-a kabuliyat executed by Nehal Chand in favour of Muni Bibi). In the same year, on the 8th

December, Jiban Kumari granted a permanent lease to 1951 Bhairodas Johurry, in respect of the premises known 8 8- 1 as 141, Cotton Street at a rental of Rs. 90 p. m. (See r; op:•J:;, a• exhibit K-a kabuliyat executed by Johurry in favour 1.'hakur of Jiban Kumari). The main question which has been v. raised in this case is whether the two ladies were com- Pratapmal petent to give debutter properties by way of perma- Ba~;=snd nent lease to another person. In 1870, Muni Bibi died, and, on the 15th January, 1872, Jib an Kumari F'azl Ali J. appointed Gourimoni Devi a shebait by a registered deed and dedicated the premises known as 141, Cotton Street, to the deity. Both Jiban Kumari and Gourimoni Debi died shortly afterwards, and Gopal Das, a minor son of Gourimoni, became the shebait of the idol.

During his minority, his father, Raghubar Dayal, became his certificated guardian, and, in that capacity, he executed a usufructuary mortgage deed in respect of the Cotton Street properties to one Lal Behari D_utt, on the 31 August, 1878. After the death of Raghubar Dayal one Ajodhya Debi and after her one Kalicharan Dutta became the certifiqi.ted guardian of Gopal Das, and, on the 17th August, 1890, the latter mortgaged some debutter properties including 140and 141, Cotton Street, to Lal Behari Dutt for a sum of Rs. 2,230. On attaining majority, Gopaldas executed on the 17th January, 1896, a usufructuary mortgage deed in respect of all debutter properties including ·the Cotton Street houses in favour of Lal Behari Dutt for paying the previous mortgage dues which amounted on that date to Rs. 4,955 and odd. This deed provided among other things that the mortgagee was to collect rents, outgoings, carry on the sheba of the deity, and that whatever balance was left out of the income of the property was to go towards the satisfaction of the mortgage dues. Gopaldas died in 1900, leaving behind him surviving his widow, Annapurna, who also died in 1905. By 1918, Lal Behari Dutt also was dead, and his interest in the mortgaged properties, to which reference has been made, was sold to one Naba Kishor Dutt on the 12th December, 1918. On the 17th November, 1933, Naba Kishor assigned the mortgagee's

1951 interest in the mortgaged properties to two of the

S- 1 Bagarias, respondents I and 2 in appeal No. 95, and Sree ree swar . h h d 0 pal Ji"' mt e same year t e three respon en ts (1 to 3) also

hakur acquired the lessee's interest in the Cotton Street v. hoµses. The land acquisition proceedings, which have Pratapmal given rise to these appeals, were started about the year Bagaria and 1934 in respect of the premises bearing Nos. 140 a. nd Others. 141, Cotton Street, as well as two adjoining premises

Fad Ali J. with which we are not concerned in this case. In these proceedings, the following claims were put forward by three sets of persons:-

1. The Bagarias (respondents 1 to 3 in appeal No. 95) at first claimed the entire amount of compensation on the allegation that they were the absolute owners of the premises in question, but later on they claimed only as mortgagees and permanent lessees of those premises.

2. On behalf of the deity, the entire amount of compensation money was claimed by Deosaran Singh and Ram Lakshman Singh, who alleged themselves to be shebaits, on the basisthat the premises in question were de butter properties of the deity, and the Bagarias had acquired no interest therein either by the assignment of the usufructuary m11rtgage or the alleged purchase of the tenant's rights in the properties.

3. Respondent No. 4 claimed compensation as a lessee for 99 years on the basis of a lease alleged to have been given to him by the original landlords.

In the present appeals, we are concerned with the first two claims only, and we shall briefly state how they were dealt with by the Collector and the courts below. On the 22nd May, 1935, the Collector awarded Rs. 31,740 as compensation for landlord's interests, to be shared by the deity as owner and two of the Bagarias, respondents Nos. 1 and 2 in appeal No. 95 in their capacity of usufructuary mortgagee, and awarded a sum of Rs. l,58,000 to the respondents Nos. 1, 2 and 3 as compensation for their rights as permanent tenants of the premises in question. Subsequently, 3 separate petitions of reference were filed

by the 3 claimants against. the Collector's award and 1951 the referece made b.y the ~Hector in pursuance there- Sree Sree Jawar of was registered as apportionment case No. 95 of 1935 Gopal Jieu in the Court of the Calcutta Improvement Tribunal.

Thakur Meanwhile, Deosaran Singh and Ram Lakshman Singh, v. who had put in claims as shebaits, retired from the Pmtapmal contest, and the President of the Tribunal appointed Bagaria and one Narendra Nath Rudra as the next friend of the Others. deity to represent and protect its interests. On the Faz! Ali J. 31st August, 1938, the President of the Tribunal gave his decision, by which he substantially upheld the award of the Collector, but modified it in one respect only. He held that the usufrnctuary mortgage, on the basis of which respondents 1 and 2 had put in a claim, had been paid off and therefore they were not entitled to any compensation, and the whole sum of Rs. 31,740 should be paid to the deity. Respondents 1 to 3 however were held entitled to the sum of Rs. 1,58,000 as permanent tenants, on the ground that leases had been created for legal necessity and therefore were binding on the deity. He also. held that the deity was not entitled to question the leases oy virtue of article 134

(a) of the Limitation Act. Regarding costs, he directed that all costs incurred on behalf of the deity should be paid out of the compensation money lying in deposit in court. Two appeals were thereafter preferred to the High Court by the two main contesting pnrties and ultimately both these appeals were dismissed, and the High Court upheld the decision of the Tribunal. Subsequently, the present appeals were preferred to this Court, the deity having obtained a certificate granting leave to appeal from the High Court, and the Bagaria respondents having obtained special leave from the Privy Council to prefer a cross appeal.

The main questions which arise in these appeals are:-

(1) whether the two mourasi mokrari leases, to which reference has been made were justified by legal necessity; and "

(2) whether the mortgages on the basis of which

S S I the Bagaria. s had laid their claim to compensation had ree ree 8'War b t' fi d Gopal Jieu een sa 1s e .

Thakur The first question arises in Appeal No. 95, and the v. second question arises in Appeal No. 96.

Pratapmal Bagaria and So far as the question of legal necessity is concerned, Others. there are concurrent findings of the Tribunal and the High Court against the appellant in appeal No. 95, Fazl AU J. but we allowed his counsel to argue the question at some length, because it was urged before us that on the facts of the case the point in issue was not a question of fact but one of mixed fact and law, especially as the decision of the High Court turned upon the construction of the leases and the inference drawn from the fact that the permanent nature of the tenancy had remained unquestioned for a very long period. The tenancy in question came into existence as Jong ago as 1869, and it is not surprising that no direct evidence bearing on the issue of legal necessity is available now.

We have therefore to fall back upon the recitals in the documents, to ascertain the circumstances under which the documents, exhibits L and K, were executed, .because it is well settled that if all the original parties to the transaction .and those who could have' given evidence on the relevant points have passed away, a recital consisting of the principal circumstances of the case assumes greater importance and cannot be lightly set aside. [See Banga Chandra Dhar Biswas v. ]agat KisoreChowdhuri(')j. It appears to us that the recitals in the documents afford valuable evidence, because the tenancies were created by two pious ladies who were keenly interested in the sheba of the deity and with regard to whom it was not suggested that they expected to derive any personal advantage from the transactions in question. It seems to us most unlikely that they would be parties to any untrue recitals merely to support the transaction. It may be recalled here that in 1848, certain properties belonging to the deity had been sold for arrears of rent, and Jiban Kumari

(I) 4S I.A, 249.

had been supplementing the income of the residue 1951 from her own properties for meeting the expenses of per- 8 s-z

forming certain essential services to the deity, such as r;; a:,,,_""J::, a~ jatra, mahotsob, etc. We also find from the arpannama Thakur that the value of the property which is the subject v. matter of the mokrari kabuliyat dated the 30th Pratapmal September, 1869 (exhibit L) was Rs. 2,000 in 1848, Ba:~:~=.nd that it was not in the khas possession of Muni Bibi but had been let out to a tenant and that its net income Fazl Ali J. was Rs. 20 p.m. At the time when the arpannama was executed, Muni Bibi clearly thought that the sum of Rs .. 20 p.m., if.included in the expeqses for the sheba of the deity, would enable the sheba to be carried on without any extraneous help .. From the recitals in exhibit L, it appears that the house bearing No. 140, Cotton Street, was in a dilapidated condition and had collapsed in the rains of 1270 B.S. (1868 A.D.), and Muni Bibi was unable to bear the expenses of constructing a new building at the place. The problem before her therefore was whether the deity should go without any income from this property, or she should enter into such an arrangement as would secure a permanent income for the expenses of the deity, which should not in any case be less than the income which the property had theretofore yielded. She decided to choose what must have appeared to her to be the better and more prudent course, with the result that she got a sum of Rs. 500 cash for the deity as the price of the materials which were sold to the lessee, and also secured a regular monthly income of Rs. 25.

There can be no doubt that the transaction was in the best interests of the deity and clearly beneficial to it.

A refer.ence to the arpannama shows that the house was in the possession of a tenant even in 1848, and from the recitals in the document it is clear that what Muni Bibi contemplated was that the house should continue to remain in the possession of a tenant, and the rent of the house should be used for the sheba of the deity. At that time, she did not contemplate any other mode of using the property she was going to dedicate. We do not know who was the tenant of the

1951 house in 1848 and what were the commitments of Muni -- Bibi at that time, but, even apart from these facts, it 8''/;:::U,"/=' is difficult to believe that a devout person like her, who

Thakur was not only a shebait but also the widow of the

v. founder of the deity and who had shown such keen Pratapmai interest for the upkeep of the worship of the deity, Bauaria and should have entered into the transaction in question

Others. unless she considered it absolutely necessary to do so.

Fazl Ali J.

The contention put forward before us is that it has not been shown that there was no other course open to Muni Bibi than to grant a permanent lease in respect of the property, but it is manifest that.at this distance of time no evidence can be available to show the actual pressure or necessity which impelled Muni Bibi to adopt the course she did. It is now well settled that where the validity of a permanent lease granted by a shebait is called into question a long time after the grant, although it is not possible to ascertain fully what the circumstances were in which it was made, the court should assume that the grant was made for necessity so as to be valid beyond the life of the grantor. [See Bava Magniram Sitaram v. Kasturbhai Manibhai(')]. In the present case, the circumstances which can be gathered from the recitals together with the fact that the document has remained unquestioned for more than half a century, seem to us to be quite sufficient to support the conclusion that the grant was made for legal necessity and is binding on the deity..

On the facts narrated, it would appear that there were several shebaits between the death of Muni Bibi and the commencement of the present litigation, but the lease was never impugned as being beyond the power of the shebait who granted it. On the other hand, we find that the permanent character of the lease was recognized in a deed executed by Gourimoni on the 18th October, 1873 (exhibit Y), and in a mortgage deed executed by Raghubar Dayal, the guardian of Gopaldas, on the 31st August, 1878.

The properties in question were subsequently mortgaged by Kali Charan Dutt and Gopaldas, but neither of these persons nor

\11 '9 I.A. 6f,

the mortgagees ever came forward to question the per-

HJ51 manent nature of the tenancy. . . .

Bree Sree lsu:ar The counsel for the appellant relied upon exh1b1t VI, Gopat Jieu which is a copy of the judgment of the High Court in Thakur a suit instituted by Nabakishore Dutt in 1925 against v. the Administrator-General of Bengal for the rent of the Pratapmat I f h. d h Bagari.a and house in question. t appears rom t ISJU gment t at Others. the tenancy was admitted by the defendant and it was also admitted by him that rent was due, but he claimed Fazl Ali J. that he was entitled to insist upon a receipt specifying the money to have been paid as mourasi mokrari rent.

The learned Judge, who dealt with the case, however, thought that the point raised by the defendant did not strictly speaking arise in a suit for rent, which according to him could not be converted into a suit for deelaration of title, and on that basis, he passed a decree in favour of the plaintiff.

The judgment does not say in so many words that Nabakishore resisted the claim as to the tenancy being mourasi mokrari, but, however that may be, assuming that such an assertion was really made by him, it cannot affect the character of a tenancy which had remained unquestioned for :A.early half a century.

The legal position with regard to 141, Cotton Street, is almost identical with that of the adjoining premises with which we have already dealt. As has been already stated, a mourasi mokrari tenancy was created by J iban Kumari on the 8th December, 1869, as is evidenced by exhibit K. This document recites among other things that the house which was the subject of the lease, " s'tands in need of repairs and for want of such repairs there is chance of some portion thereof breaking down during the year. " It also recites that whatever income was derived till then from that house was derived by letting it out on rent and that the mourasi tenancy was being created for the purpose of repairing the house and keeping it in existence. At the end of the document, it is stated that " the shebait shall keep the kabuliyat and patta in force and shall on taking the sum of Rs. 90 as rent, defray the expenses of the sheba of the deity." It is

1951 noteworthy that the actual dedication of this property

BruSreeiswar took place on the .15th January, 1872, more !han 2

Gopal Jieu years after the kabuhyat. On that date, a registered Thakur deed of gift was executed by Jiban Kumari in favour v. of Srimathi Gourimoni Debi and it was recited therein Pratapmal that the income of the house was being dedicated by Bagaria and the former to the sheba of the deity. There was also OthttB. a further clause in that deed to the following effect : -

:l'azZ Ali J. ••In accordance with the terms of the solenama the expenses of the lswar seba shall be met from the income of those properties which have been dedicated for the performance of the work of the said seba and the amount by which the expenses for the festivals would fall short and the expenses which would be incurred for repairs to house for sheba of the said Thakur shall be met and the Tahailia (attendant) and the Brahman cook and the Brahman priest (now) employed and to be employed hereafter shall get (their) salaries, from the income of the said property." On reading this document along with the solenama and the mokrari lease granted by Jiban KU.mari, it appears that she dedicated the property after having created a mokrari lease, that what she purported to dedicate was the income derived by way of rent from the mourasi mokrari tenancy, and that she had dedicated this income for specific purposes with the object of making up the deficit in the income received from other debutter properties. If it is held that Jiban Kumari was an absolute owner of the property at the time the mourasi mokrari lease was granted and afterwards she dedicated only the income of the property, then the permanent lease cannot be assailed. If, on the other hand, it is held on reading the solenama that Jiban Kumari had only a life estate in the house and it was one of the terms of the solenama that after her death the expenses of the deity were to be borne out of the income from the house, then in that case the question may arise as to whether she was entitled to create a lease beyond her lifetime. Such a question however does not need an elaborate answer, because the same considerations which apply to 140, Cotton Street, will

apply to this house, and the presumption as to 1951 necessity which is raised by the long lapse of time, - ld ' h 1 Th' t' • 'd bl Bree Sree ls1mr wou anse ere a so. is presump 1on IS consI era y Gopal Ji.,, strengthened here as well as in the case of the lease Thakur granted by Muni Bibi, by the fact that the grantor of the lease was so devoted to the object of the endow- Pratapmal ment that it does not seem likely that she would have Bagaria and

1 • Others. granted a permanent lease un ess she was Impelled to do so by absolute necessity. It seems to us therefore that p,, zz Ali •1. the view taken by the High Court is substantially correct and the respondents Nos. I and 2 are entitled to compensation as permanent lessees.

In this view, Appeal No. 95 must fail, and it is dismissed.

As to Appeal No. 96, it has been concurrently found by the President of the Tribunal and the High Court that the appellants have failed to prove by proper evidence that there is any money still due to them on the usufructuary mortgage executed by Gopaldas in

1886. In arriving at this finding, they have dealt with every possible argument that could be urged and was urged on behalf of the appellants to show that the mortgage had not been satisfied.

This court has repeatedly held that it will not generally interfere with concurrent findings on a pure question of fact, and . nothing has been shown on behalf of the appellants to induce us to depart from this rule. In the result Appeal No. 96 also is dismissed.

Having regard to the circumstances of the case, we shall make no order as to costs in either of these appeals.

Appeals dismissed.

Agent for the appellant in Civil Appeal No. 95 and respondent in Civil Appeal No. 96 : Sukumar Ghose.

Agent for respondents Nos. 1 to 3 in Civil Appeal No. 95 and appellants Nos. 1 to 3 in Civil Appeal No. 96 : S. C. Banerjee.

Agent for respondent No. 4 in Civil Appeal No. 95 : P. K. Chatterjee. ·

S. Subramanian

P. A. Mehta

SREE SREE ISWAR GOPAL JIEU THAKUR

PRATAPMAL BAGARIA AND OTHERS

SAJYJD FAZL ALI

s. R: DAS

CBANDRASEKHARA AIYAR JJ.

Panchanan Ghose

Upendra Chandra Mullick

S.P. Sinha

Nagendra Nath Bose

S. N. Mukherjee

FAZL ALI

The judgment of the Court was delivered by
FAZL ALI J.-These appeals are directed againstthe ra:iuJ. judgment and decree of the High Court of Judicature at Fort William in West Bengal, confirming a decision of the President of the Calcutta Improvement Tribunal, which modified an award of the First Land Acquisition Collector of Calcutta, made under the Land Acquisition Act in respect of the acquisition of two premises, which may conveniently be referred _ to as Nos.

Calcutta Improvement Tribunal

Sewanarayan Kalia

Sree Sree Iswar Gopal Jieu Thakur

Hoogly. Sewanarayan

Muni Bibi

Jiban Kumari

Amrit Kumari

Kissen Dasi

Pratapmal Sewanarayan

Ali J.

20th January, 1848

Thakur

30th September, 1869

Nehal Chand Panday

Bhairodas Johurry

Nehal Chand

8th

December

Johurry

15th January, 1872

Jib an Kumari F'azl Ali

Gourimoni Devi

Gourimoni Debi

Gopal Das

Raghubar Dayal

Lal Behari D_utt

31 August, 1878

Ajodhya Debi

Kalicharan Dutta

17th August, 1890

Lal Behari Dutt

Gopaldas

17th January, 1896

Annapurna

Naba Kishor Dutt

12th December, 1918

17th November, 1933

Naba Kishor

s

1951

Bagarias

hakur

Fad Ali

Deosaran Singh

Ram Lakshman Singh

22nd May, 1935

Sree Sree Jawar

Bagaria

Narendra Nath Rudra

Faz! Ali J. 31st August, 1938

article 134

Limitation Act

Pratapmal Bagaria

arpannama Thakur

Fazl Ali J.

Muni -- Bibi

Bauaria

Fazl Ali

18th October, 1873

31st August, 1878

Kali Charan Dutt

Bree Sree

Thakur

Nabakishore Dutt

Administrator-General of Bengal

Nabakishore

J iban Kumari

8th December, 1869

Gopal Jieu

l'azZ Ali

Tahailia

Jiban KU.mari

Gopal Ji

Sukumar Ghose

S. C. Banerjee

P. K. Chatterjee