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PETITIONER: STATE OF GUJARAT & ANR.

       Vs.

RESPONDENT: ACHARYA D. PANDEY & ORS.

DATE OF JUDGMENT: 12/10/1970

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SIKRI, S.M.

CITATION:  1971 AIR  866            1971 SCR  (2) 557  1969 SCC  (3) 349

ACT: Bombay  Public  Trust Act 1950 ss. 35(1),  66-Scope  of-Mens Rea-If necessary ingredient.

HEADNOTE: On  the  allegations,  that the 1st  accused,  who  was  the Acharya  of  a public trust withdrew monies from  the  trust fund to meet his tax liabilities, that the other accused  as trustees connived at the contraventions of the law, and that the monies were reimbursed later, the accused were convicted under ss. 35(i) and 66 of the Bombay Public Trust Act, 1950. In  appeal, the High Court acquitted, the  accused,  holding that  the requisite mens rea was not proved against the  1st accused, and that the other accused were not trustees at the time of the alleged offence.  Dismissing the appeal, HELD  : The broad principles accepted by Courts with  regard to  the  question whether a crime can be said to  have  been committed  without  the necessary mens rea. are :  Where  an offence  is created by statute, however,  comprehensive  and unqualified  the  language  of the statute,  it  is  usually understood  as silently requiring that the element  of  mens rea  should  he imported into the definition of  the  crime, unless  a  contrary intention is expressed or  implied.   In other words, the plain words of statute are read subject  to a presumption, which may be rebutted, that the general  rule of  law that no crime can be committed unless there is  mens rea  has not been ousted by the particular enactment.   Mens rea   means  some  blameworthy  mental  condition,   whether constituted  by  knowledge or intention or  otherwise.   But this rules has several exceptions. [560 H] The principal classes of exceptions may be reduced to three. One  is a class of acts which are not criminal in  any  real sense, but are acts which in the public interest  prohibited under  a  penalty.   Another  class  comprehends  some,  and perhaps  all, public nuisances.  Lastly, there may be  cases in which although the proceeding is criminal in form, it  is really only a summary mode of enforcing a civil right.   But except  in  such cases as these, there must  in  general  be guilty  knowledge on the part of the defendant, or  of  some one  whom he has put in his place to act for him,  generally or  in  the  particular matter in order  to  constitute  and

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offence.   The present case falls within the first  category [561 G] Section  35(1)  of  the Bombay Public Trust  Act  creates  a quasi-criminal  offence.  It is a regulatory provision.   It is  enacted  with a view to safeguard the  interest  of  the public  regarding trust money.  The offence in  question  is punishable  only with fine.  The conviction under that  does not carry any stigma.  The language of the provision appears to   make   its   contravention   an   absolute   liability. Consequently the requirement of mens rea cannot be read into it. [563 A]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 2 to 12 of 1968. 558 Appeals by special leave from the judgments and orders dated June  25,  1965 and February 20, 1967 of  the  Gujarat  High Court in Cr.  Appeals Nos. 828 of 1965 etc. Urmila Kapoor and S. P. Nayar, for the appellants. V. K. Sanghi, for the respondents. The Judgment of the Court was delivered by Hegde,  J. These appeals arise from two complaints field  by the  Charity Commissioner, State of Gujarat under  s.  35(1) read with s. 66 of the Bombay Public Trust Act, 1950  (which will  hereinafter  be  referred to as the  Act).   In  those complaints  10 accused were proceeded against.  It was  said that  they were the trustees of two trusts known  as  "Shree Swaminarayan Mandir" and "Narayan Mandir".  The 1st  accused in both those complaints was the Acharya, the 10th was  said to  be  the  Mahant and the  other  accused  the  associated trustees at the relevant time.     It  was  said  that   all these trustees were appointed under two different    schemes framed by the High Court of Bombay. The trial          court convicted  the  accused  but in appeal  the  High  Court  of Gujarat  acquitted  all of them.  It held that there  is  no proof to show that accused 2 to 10 were the trustees of  the institutions at the time the alleged offence took place.  It allowed the appeal of the 1st accused on the ground that the prosecution has failed to prove the required mens rea on his part.   The  State of Gujarat and the  Charity  Commissioner have  brought  these appeals after obtaining  special  leave from this Court. In  the  first  complaint the allegation  is  that  the  1st accused withdrew from the trust funds in Samvat year 2014  a sum of Rs. 30277/53 for meeting his income-tax liability and that  he  reimbursed that amount only in Samvat  year  2018. The  allegation  against  the other  accused  is  that  they allowed   the  1st  accused  to  utilise  that   amount   in contravention  of  the  law.  In the  second  complaint  the allegation  is  that the 1st accused withdrew a sum  of  Rs. 40653/56  P.  in  the Samvat year  2015  again  for  meeting income-tax liability and that he reimbursed that amount also in the Samvat year 2018 and that the other accused  connived at the contravention of the law by the 1st accused. Accused  2 to 10 pleaded that they were not the trustees  of the institutions concerned during the Samvat years 2014  and 2015 and nor were they aware of the withdrawals and as such, they  are  not  guilty  of any  offence.   The  1st  accused admitted the withdrawals mentioned in the complaints but his case was that the 559 withdrawals were made from his Hathu Khata, a Khata built up

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by him and his ancestors and he has put back that amount., So far as accused 2 to 10 are concerned there is  absolutely no evidence against them.  The only witness examined on be-- half  of  the complainant namely the Legal  Advisor  of  the Charity Commissioner did not give any evidence against them. No  material was placed before the court to show  that  they were  the  trustees  of the trusts in  question  during  the Samvat  years  2014 and 2015.  This is not a  case  where  a trustee  has failed to deposit the amounts in his hands  but is a case of unauthorised withdrawals.  There is no evidence to  show that accused 2 to 10 knew about  those  withdrawals even  if  we assume that they were the trustees  during  the Samvat  years  2014 and 2015.  Hence the case  against  them must necessarily fail. Now coming to accused No. 1 his case is that he withdrew the amount from his Hathu Khata which Khata according. to him is his  private  Khata.   There is  no  contra  evidence.   The complainant’s witness admitted during his  cross-examination that  accused No. 1 kept a huge sum with the trust and  that no interest was given to him in respect of that amount.   It is  not possible to come to the conclusion, on the basis  of the evidence of P.W. I that accused No. 1 had withdrawn  any amount  belonging to the trust.  In order to prove the  case put  forward  in the complaints, reliance was sought  to  be placed on a letter said have been sent by the accused to the Charity Commissioner.  The original letter was not produced; only  an  alleged copy of the same was put  on  record.   No witness  has proved the letter said to have been written  by accused  No. 1, nor is there any evidence to show  that  the copy produced is a true copy of the letter said to have been sent  by accused No. 1. We are asked to infer the  guilt  of the accused No. 1 on the basis of the statement made by  him under  s. 342, Cr.P.C. We cannot split that  statement  into various  parts and accept a portion and reject the rest.  We have to either accept that statement as a whole or not  rely on it at all.  In his statement the accused pleaded that  he was  not guilty and if his statement is taken as a whole, it does not  show that he was guilty of any offence. Our  above  conclusion  is sufficient to  dispose  of  these appeals but as the High Court has elaborately gone into  the question whether the requirement of mens rea is a  necessary ingredientof  s. 3 5 (1), we shall proceed to  examine  that question. The  High Court primarily addressed itself to  the  question whether  the  court should read into s. 35 of the  Act,  the requirements of mens rea.  Section 35(1) reads :               "Where  the trust property consists  of  money               and  cannot be applied immediately or  at  any               early date to               560               the  purposes of the public trust the  trustee               shall be bound (notwithstanding any  direction               contained  in the instrument of the trust)  to               deposit  the  money in any Scheduled  bank  as               defined  in  the Reserve Bank  of  India  Act,               1934,  in the Postal Savings Bank or in a  Co-               operative   bank   approved   by   the   State               Government for the purpose or to invest it  in               public securities :               Provided  that such money may be  invested  in               the  first  mortgage  of  immovable   property               situate in (any part of India) if the property               is  not leasehold for a term of years and  the               value of the property exceeds by one-half  the               mortgage money :

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             Provided further that the Charity Commissioner               may  by  general or special order  permit  the               trustee of any public trust or classes of such               trusts  to  invest  the  money  in  any  other               manner." Assuming  that  the requirement of mens rea is  a  necessary ingredient  of the offence under s. 35(1) and  further  that the  facts pleaded in the complaint are correct  then  there can  be  hardly any difficulty in coming to  the  conclusion that the accused had the required intention.  He is said  to have  withdrawn monies from the trust fund and utilised  the same for his private purpose. It  may  be noted that the requirement of S.  35(1)  that  a trustee should invest in proper securities the trust  monies not required for immediate use merely emphasises an  obvious duty of the trustee.  Section 35(1) imposes certain  penalty on  the trustee if he fails to do his duty.  The purpose  of S.  35(1) is to safeguard the trust funds and also to  guard against its misappropriation and misapplication.  The  Trust Act as well as S. 35(1) imposes a duty on the trustee.   The language  of the provision shows that the liability  imposed on  the  trustee is absolute.  The provision  is  regulatory provision enacted in public interest.  For the contravention of  S. 35(1) only a fine can be imposed and  the  punishment does not carry with it any stigma. The  question whether a crime can be said to have been  com- mitted   without   the  necessary  mens  rea  has   led   to considerable controversy.  The broad principles accepted  by courts in this country as well as in England are : Where  an offence  is created by a statute, however comprehensive  and unqualified  the  language  of the statute,  it  is  usually understood  as silently requiring. that the element of  mens rea  should  be imported into the definition of  the  crime, unless a contrary intention is expressed or 5 6 1 implied.  In other words, the plain words of the statute are read  subject to a presumption, which may be rebutted,  that the  general  rule  of law that no crime  can  be  committed unless  there  is  mens  rea has  not  been  ousted  by  the particular  enactment.  The mens rea means some  blameworthy mental  condition,  whether  constituted  by  knowledge   or intention   or  otherwise.   But  this  rule   has   several exceptions, as observed by Lord Evershed in Lim Chin Aik  v. The Queen(1).               "Where  the subject matter of the  statute  is               the  regulation  for the public welfare  of  a               particular  activity-statutes  regulating  the               sale  of food and drink are to be found  among               the earliest examples-it can be and frequently               has   been  inferred  that   the   legislature               intended   that  such  activities  should   be               carried   out  under  conditions   of   strict               liability.    The  presumption  is  that   the               statute   or  statutory  instrument   can   be               effectively  enforced only if those in  charge               of   the   relavant   activities   are    made               responsible for seeing that they are  complied               with.   When  such  a  presumption  is  to  be               inferred,    it   displaces    the    ordinary               presumption of mens rea."               As  long back as 1895.  Wright J. observed  in               Sherras v.De Rutzen.               "There is a presumption that mans rea, an evil               intention of knowledge of the wrongfulness  of               the  act, is an essential ingredient in  every

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             offence; but that presumption is liable to  be               displaced  either by the words of the  statute               creating  the offence or by the  subjectmatter               with  which it deals, and both must be  consi-               dered." It is further observed therein that the principal classes of exceptions  may  perhaps be reduced to three.  First,  is  a class of acts which are not criminal in any real sense,  but are  acts  which in the public interest prohibited  under  a penalty.   Another class comprehends some, and  perhaps  all public  nuisances.   Lastly, there may be  cases  in  which, although  the proceeding is criminal in form, it  is  really only a summary mode of enforcing a civil right.  But, except in  such  cases as these, there must in  general  be  guilty knowledge  on the part of the defendant, or of some on  whom he has put in his place to act for him, generally, or in the particular  matter, in order to constitute an offence.   The present  case,  in  our  opinion,  falls  within  the  first category  mentioned above-Section 35(1) deals with a  quasi- criminal act. (1) [1963] A.C. 160. (2) [1895]1.  Q. B. 918 5 62 This  Court in Ravule Hariprasada Rao v. The State(1)  ruled that  unless  a  statute  either  clearly  or  by  necessary implication  rules out mens rea as a costituent 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. The  same  view was reiterated by this ,Court  in  State  of Maharashtra  v.  Mayer Hans George (2) . But in  both  those cases this Court recognized that the language of a provision either plainly or by necessary implication can rule out  the application  of  that presumption.  Further  the  Court  may decline  to draw that presumption taking into  consideration the  purpose  intended to be served by that  provision.   In fact in Ravula Harprasada Rao’s case(1) this Court held that the  ,liability imposed under S. 27(A) of the  Motor  Spirit Rationing  Order 1941 is an obsolute liability.  The law  on this point was ,elaborately discussed by the House of  Lords in Sweet v. Parsley(3).  Therein it was laid down that it is a  general principle of construction of any enactment  which creates a criminal offence that, ,even where the words  used to  describe the prohibited conduct would not in  any  other context  connote  the necessity for  any  particular  mental element  they are nevertheless to be read as subject to  the implication  that a necessary element in the offence is  the absence of a belief, held honestly and on reasonable grounds in the existence of a facts which, if true, would make  ’the act innocent.  In the course of his speech Lord Reid  obser- ved  after  referring  to the well  known  observations  of Wright J. to which we have already made reference.               "It does not in the least follow that when one               is  dealing  with a truly criminal act  it  is               sufficient  merely  to  have  regard  to   the               subject matter of the enactment.  One must put               oneself  in the position of a legislator.   It               has  long  been  the  practice  to   recognise               absolute  offences  in this  class  of  quasi-               criminal acts, and one can safely assume that,               when  Parliament  is passing  new  legislation               dealing  with  thise class of  offences,  itse               silence  as  to mens rea means  that  the  old               practice  is to apply.  But when one comes  to               acts a truly criminal character, it appears to               me  that there are at least two other  factors

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             which any reasonable legislator would have  in               mind.   In  the  first place  a  stigma  still               attaches  to any person convicted of  a  truly               criminal offence, and the more serious or more               disgraceful   the  offence  are  greater   the               stigma.  So he would have to consider whether,               in a case of this gravity, the public interest               really requires than an innocent person should               be prevented from pro-               (1) [1951] S. C. R. 322.                   (2)               [1965] 1 S.C.R. 123.                         (3) [1965] 2 W. I-R. 470.               5 63               ving his innocence in order that fewer  guilty               men may escape." Section  35(1) of the Act creates a quasi-criminal  offence. It is a regulatory provision.  It is enacted with a view  to safeguard the interest of the public regarding trust  money. The  offence in question is punishable only with fine.   The conviction  under  that  does not  carry  any  stigma.   The language of the provision appears to make its  contravention an absolute liability.  Under these circumstances, we  think the  offence mentioned in that section is an  absolute  one. Consequently we cannot read into it the requirement of  mens rea. For the reasons mentioned above these appeals fail and  they are dismissed. Y.P.            Appeal dismissed. 564