Hussaina Beari vs Emperor

In this case the accused was charged u/s 211 of the Indian Penal Code with making a false charge against one Angara Mukari, u/s 1 of the

Workman''s Breach of Contrast Act, XIII of 1859. In order to determine the point at issue, which is one of considerable interest, it is necessary to

examine both the wording of Section 211 of the Indian Penal Code, under which the accused was convicted, and the wording of the Workman''s

Breach of Contrast Act. Section 211 of the Penal Code is as follows:

Whoever, with intent to cause injury to any person, institutes or causes to be instituted, any criminal proceeding against that person, or falsely

charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that

person shall be punished, etc.

By the Workman''s Breach of Contrast Act, Section 1, it is enacted as follows:

""When any artificer, workman or labourer shall have received from any master or employer, resident of carrying on business in any Presidency

town, or from any person acting on behalf of such master or employer, an advance of money on account of any work which he shall have

contracted to perform, or to get performed by any...artificers, workmen or labourers...shall wilfully, and without lawful or reasonable excuse,

neglect or refuse to perform, or get performed, such work according to the terms of his contract, such master or employer, or any such person as

aforesaid, may complain to a Magistrate of Police, and the Magistrate shall thereupon issue a summons or a warrant, as he shall think proper, for

bringing before him such artificer, workman or labourer, and shall hear and determine the case."" And Section 2 enacts: ""If it shall be proved to the

satisfaction of the Magistrate that such artificer, workman or labourer has received money in advance from the complainant on account of any

work, and has wilfully, and without lawful or reasonable excuse, neglected or refused to perform, or get performed, the same according to the

terms of his contract, the Magistrate shall, at the option of the complainant, either order such artificer, workman or labourer to re-pay the money

advanced, or such part thereof as may seem to the Magistrate just and proper, or order him to perform, or get performed, such work according to

the terms of his contract : and if such artificer, workman or labourer shall fail to comply with the said order, the Magistrate may sentence him to be

imprisoned with hard labour for a term not exceeding three months.

It was proved in the lower Court, and it is not contested here, that the proceedings launched u/s 1 of the Workman''s Breach of Contract Act

were, in fact, falsely brought and that the charge was a baseless one, and indeed it was withdrawn almost immediately the case came on. The

employer has been convicted u/s 211 for falsely bringing those proceedings. The only point he takes before us is that the proceedings under the

Workman''s Breach of Contract Act are not criminal proceedings within the meaning of Section 211, Indian Penal Code.

There has been a good deal of argument as to what the dividing line is in matters of this kind between criminal and civil proceedings and various

analogies were suggested on one side or the other of the line. But we think that this matter has been clearly decided by a ruling of the House of

Lords in England on a very analogous set of statutory provisions, so that it is needless to indulge in wide speculations as to the precise differentia of

criminal from civil proceedings in general. If one looks at the Act, the preamble of it would certainly lend colour to the idea that the Act regarded

some portion, at any rate, of the proceedings as criminal because the preamble recites that much loss and inconvenience are sustained by

employers from fraudulent breach of contract on the part of workmen who have received advances and actually recites the inadequacy of the

remedy by a suit in the Civil Courts and adds that

""It is just and proper that persona guilty of such fraudulent breach of contract should be subject to punishment,"" and it goes on to enact the

provisions which have been already set out.

It was argued on behalf of the respondent that the offence referred to in the Act must be regarded, as the original offence of breach of contract

because that is the thing which, in the terms of this preamble, the Act sets out to punish or, at any rate, to prevent. There have been decisions of

this Court to the effect that the offence created by the Act is not the original breach of contract on the part of the workman but his subsequent

disobedience to what we may call the order for specific performance which entails the punishment by imprisonment. That opinion was expressed

by a Bench of three Judges of this Court, Sir Arnold White, C.J., Davies and Benson, JJ., in Anusoori Sanyasi, In the matter of 28 M. 37 and Sir

Arnold White says:

The offence created by the Act is not the neglect or refusal of the workman to perform his contract but the failure of the workman to comply with

an order made by the Magistrate that the workman re-pay the money advanced or perform the contrast.

There is a similar ruling in King-Emperor v. Takasi Nukayya 24 M. 660 . Perhaps, logically, the offense is something that comprehends both

those elements. The offence is completed when the workman who has broken the contract and who has had an order u/s 2 made against him fails

to obey that order of the Magistrate. The necessary ingredients in the offence are: he must have broken a contract; an order u/s 2 must have been

passed and be must have disobeyed that order. When those elements are present, there is an offence as it would be defined for statutory

purposed, e.g., for insertion in a Criminal Code. To that the argument is that the whole proceedings must be regarded as one and that, as the

offence, as we have defined it, when completed, culminates in a liability to punishment by imprisonment which, of course, obviously savours of a

criminal proceeding, every step from the inception must be regarded as a step in a criminal proceeding, and it is said that you cannot split up a

statutory procedure into two parts, one of which you are prepared to call criminal and the other civil. The argument, to our minds, is disposed of

by the case of Derby Corporation v. Derbyshire County Council (1897) A.C.660 . In that case there had been a proceeding under the Rivers

Pollution Prevention Act of 1876. The Act, in its general scheme, provided something very much of the nature of the remedy in this case. The

proceedings by the Act are laid in the County Court, the Civil Court of the District. By the Act, the County Council is enabled to bring proceedings

against persons who are alleged to have offended against the Act by polluting rivers. Thereupon, the County Court Judge has power to pass

orders (if he finds that there was pollution) either in the nature of an injunction or by allowing a limited time for new measures to be taken or a new

scheme carried out to obviate or abate the pollution. After the time limited by the order has expired, it is competent to the local authority to apply

to the County Court Judge for a penal order levying a sum of money for every day that the defendant continues in default. In this case, the County

Council had started proceedings for an order against the Derby Corporation. In the course of those proceedings they applied to the learned

County Court Judge for an order for discovery of documents. They said that it was impossible for them to put before the Court the proper

materials with regard to the methods of disposal of sewage and so forth carried out by the Corporation unless the Corporation were compelled to

make discovery of documents, plans, maps and so forth. That was resisted on the ground that the nature of the proceedings was penal or criminal

because the proceedings that were commenced were a step towards the recovery of a penalty, and reliance was placed in argument upon the case

of Reg. v. Whitchurch (1887) 7 Q.B.D. 534 to which I shall refer presently. The House of Lords held, that discovery could be ordered because

the initial stage of the proceedings was not criminal or penal at all. Lord Herschell, at page 552, says:

I will deal with the first objection, namely, that this is a penal proceeding--a proceeding which may end in a penalty. It seems to me nothing of the

kind. This proceeding never can end in a penalty. All it can end in is an order under such terms and conditions as the County Court Judge thinks

reasonable to prevent or abate a nuisance. The Legislature has provided that, if that order is disobeyed, then the County Court Judge may impose

a penalty not exceeding �50 a day, as he thinks reasonable, payable to such persons as he thinks right, upon the authority or person who has

disobeyed the order. My Lords, that is a separate and independent proceeding. It is true it is taken, as it is said, in the action or the proceeding,

but it is really a separate proceeding in which the penalty for disobedience is imposed. The proceeding itself is no more a proceeding that may

subject the present appellants to a penalty than is every proceeding which is ever taken in a Court of justice.

Their Lordships held, that where you have a remedial power vested in the Court in the first instance, followed by a penalty on disobedience of

the order made in the first instance, it is the second proceeding alone that is penal in character and the first has no penal character whatever.

The case of Reg. v. Whitchurch (1887) 7 Q.B.D. 534 was a proceeding under the Public Health Act of 4875. Section 94 of that Act vests in

the various local authorities, as defined by the Act, the power to serve notice on a person by whose act any nuisance cognizable by the local

authority is caused, requiring the person on whom the notice is served to abate the nuisance within the time specified by the authority and carry out

the works required for the purpose. Then, by Section 93, on non-compliance with the notice, the local authority can lay a complaint before a

Justice of the Peace and he can issue a summons requiring the person named in the complaint to appear before a Court of summary jurisdiction

and the Court of summary jurisdiction is enabled by Section 96 to make an order for the execution of the works, and may also by the same order

impose a penalty on the person on whom the order was made. It is obvious that the analogy of that case cannot be applied to the present one. The

proceeding of the local authority corresponds to the first proceeding in the second section of the Workman''s Breach of Contract Act where the

Magistrate, in the first instance, makes an order in the nature of an order for specific performance. In the Public Health Act that part is not vested

in a Court but is left to the local authority in the first instance, which goes very strongly to show that you cannot regard that part of the proceedings

which is not even in a Court as in any way criminal. Then, when the matter comes before the Magistrate he has jurisdiction from the very outset,

without any further default being made, to impose a penalty, as Lord Davey pointed cut in Derby Corporation v. Derbyshire County Council

(1897) A.C.660 .

We are of opinion, that the authority of the House of Lords finally establishes that, in cases of an analogous kind, the initial proceedings which

can only end in the nature of an order for specific performance must be separated from the final proceedings which will issue on disobedience of

that order. It is the latter portion of the proceedings alone that can in any way be described as criminal proceedings and may come u/s 211, Indian

Penal Code. In the present instance, the only proceedings that were launched were under the preliminary portion of the section for execution of the

work or for repayment of the advance, and we are of opinion that those not being criminal proceedings the present conviction cannot be sustained

and must be quashed.