In Re: Kasi Raja, Proprietor, Thiruveswarar Rice Mills, Ariyur

Ramaswami, J.—This is a Criminal Revision Case which has been filed against the conviction and sentence of the Second Additional First

Class Magistrate of Thiruchirapalli in S. T. Case No. 129 Of 1951.

The facts are: The petitioner Kasi Raja son of Periyasami Muthuraja is the proprietor of the Thiruveswarar Rice Mills, Ariyur. This proprietor

employed a driver who has been examined as P. W. 3 in this case for driving the rice mill. On the night of 21-10-1950 at about 2-30 A.M. the

Taluk Supply Officer, who has been examined as P. W. 1, made a surprise visit. Then he found that the driver was hulling four kalams of paddy

belonging to one Appu Ayyar of Ariyur village without a permit, The proprietor was absent from the place. Therefore the Taluk Supply Officer

recorded statements from the engine driver as well as the village Munsif. The statement given by the driver is Ex. P-l and the statement given by the

village Munsif is Ex. P-2. In the statement given by the driver and from which he went behind in the Court when he was examined as P. W. 3, on

account of which he was treated as hostile to the prosecution and was cross-examined, this driver has admitted as follows: (After quoting the

evidence of this witness His Lordship proceeded:) The village munsif gave a statement to which he has stuck to in the Court when he was

examined as P. W. 2 namely that when the mill was suddenly inspected by the Taluk Supply Officer at 2-30 A.M. the facts found were as set out

in the above statement of the driver. The village munsif also touched the machine and found it very hot showing that it had just been running. In

addition, the Taluk Supply Officer stated that when he made this surprise raid he found persons dispersing with loads of paddy & that the lights

wore put out. Therefore he obtained necessary sanction of the Collector and prosecuted this proprietor Kasi Rajan u/s 7(1) , Essential Supplies

Temporary Powers Act.

The case for the accused seems to be twofold namely that there was no running of the machine & hulling of paddy of Appu Ayyar without a

permit & secondly that he the master is not liable for the act of the servants. One is a finding of fact and the other is a point of law.

Turning to the point of fact, there cannot be the slightest doubt that the version of the petitioner before us is a tissue of lies from beginning to end.

(After discussion of the evidence His Lordship concluded). It is manifest therefore, that what was being hulled was hulled without the proper hulling

permit. Therefore it is absolutely clear that when the Taluk Supply Officer had raided this mill at an unearthly hour, the mill was working and was

actually grinding paddy for Appu Ayyar without ''a hulling permit.

Then we come to the point of law raised which is (not?) unsubstantial and which has practically become a time-honoured defence in these cases.

The point taken is that the master who was quietly at home and did not know what was going on in the mill is not liable for the act of the servant

and that since the master has not got the necessary MENS REA he could not be convicted. It is quite true that as a general rule of criminal law the

master is not responsible for the unauthorised acts of its servants. But in many cases the law imposes upon the owner of the property the obligation

of managing it, so that it shall not injuriously affect any one else or the public, or requires or forbids the dealing with it in some particular way. In

such cases, where the breach of obligation is punishable criminally, the owner cannot free himself from liability by delegating the management to

someone else on his behalf. This liability of the master is insisted upon because otherwise every master will be able to set at bought the entire series

of special acts by employing servants AD HOC and getting illegal acts done and at the same time disown his liability therefore and would take care

always to be out of the way. (R. v. Stephens'', (1866) 1 Q B 702; -- ''Redgate v. Haynes'', (1876) 1 Q B 89; -- ''Bond v. Evans'', (1890) 21 Q B

D 249; -- ''Alien v. Whitehead'', (1930) 1 KB 211; -- ''Griffiths v. Studebaker, Ltd.'', (1924) 1 K B 102).

In fact this very argument was advanced in this Court in -- Cri. Rev. Case No. 1181 of 1949 (Mad)'' and it was repelled. The argument was

that the master had no MENS REA because the actual hulling was done at the instance of the manager. My learned brother Govinda Menon J.

repelled that argument and stated that this plea did not appeal to him because of the specific provisions of the order which had been contravened,

and that the learned Magistrate had also pointed out that in Government Order 432, Food Department dated 12-4-1947 hulling paddy either by

the owner or a person in charge of a mill without a permit was made punishable. The Privy Council decision in -- ''Srinivas Mall v. Emperor'', 1947

2 Mad LJ 328 was relied upon before my learned brother and he pointed out as follows:

There Sir John Beaumont quotes a passage from the judgment of the Lord Chief Justice where a specific mention is made that in cases where the

legal provision contravened exempts matters in which MENS REA is made not necessary in such cases the master can be made liable for the acts

of servants. The learned counsel also relies upon the judgment of the Chief Justice of Bombay in - Emperor Vs. Isak Solomon Macmull, I do not

find that the Bombay decision can be of much help to the facts of the present case. Here according to the order promulgated ''any owner who

allows paddy to be hulled in his rice mill without a permit is made liable.

The question as to the precise kind of MENS REA which is required in such cases formed also the subject-matter of discussion in -- ''Narayana

Naik v. State'', 1950 Mad W. N. Cri. 302 where reliance was placed in -- ''Bhola-prosad v. The King'', 53 Cal. W. N. 300, before

Panchapagesa Sastry J. Panchapagesa Sastri J, held that what was meant by saying that MENS REA should be established was that it should be

proved that the accused had a guilty mind in doing the act; if the accused knew that the law and the conditions of the licence given to him required

that he should comply with certain formalities (such as making certain entries in the receipts issued by him) and with that knowledge he deliberately

omitted to comply with those formalities, he must be held to have a guilty mind; what the law requires is only a conscious violation of the statute

and the profit motive or anything analogous to it is not essential. In that case Panchapakesa Sastri J. examined relevant circumstances and found

that the accused could not have escaped having a guilty mind.

In the instant case let us examine the circumstances which the Taluk Supply Officer found when he raided the mill. Its owner, the accused, is

living in the village not far from the mill. The mill was kept working at the most unusual part of the night namely 2-30 a.m. On seeing the Taluk

Supply Officer many persons with head loads of paddy dispersed helter-skelter. Then the person who was caught was the driver with the machine

running with the hull full of paddy and the vazhi full of rice. The owner could not escape having knowledge that his mill was being run in the night

and that it was hulling paddy ''without permits and the hulled paddy not being brought into account. The accused cannot escape by saying that

because lie was living at some distance he had no knowledge of the mill running, for in order to run the mill there must be consumption of oil and

other incidental expenses. So how can this owner escape knowledge of the fact that his mill was being run at nights for illegal purposes? Therefore,

in this case even if a conscious violation of the statute is required such conscious violation was present in this case and can be deduced from the

circumstances set out above.

But as a matter of fact this plea of MENS REA is very often used without fully comprehending its place either in the Indian Penal Code or in the

special Acts which are being enacted in larger and larger numbers. It is an almost immemorial common place of English Judges to state that there

can be no conviction on a criminal charge, unless the prisoner has a ''mens rea'' or guilty mind. The maxim which lays down this doctrine (''actus

non facit reum nisi mens sit rea''): (''Non est reus nisi mens sit rea'') has been traced by Sir James Stephen backwards through Lord Coke to the

laws of Henry I. Its meaning was discussed with great elaboration in two cases (--''R. v. Prince'', (1875) 2 CLR 154) and -- ''R. v. Tolson'', 1839

Q B D 168 where the Judges differed completely as to its application. In the last case, Stephen J., with characteristic independence expressed an

opinion that the maxim itself was not of much practical value, and was not only likely to mislead but was absolutely misleading and in this opinion,

Manisty J. who agreed with him in nothing else, most heartily concurred. When the maxim originated, criminal law practically dealt with common

law offences, none of which was defined. The law gave them certain names, such as treason, murder, burglary, larceny or rape and left any person

who was interested in the matter to find out for himself what these terms meant. To do this he had to resort to the explanations of text-writers and

the decisions of Judges. There he found that the crime consisted not merely in doing a particular act, such as killing a man, or carrying away his

purse, but in doing the act with a particular ''knowledge or purpose. This superadded mental state was generalized by the term ''mens rea''.

But under the Penal Code such a maxim is wholly out of place. Every offence is defined, and the definition states not only what the accused

must have done, but the state of his mind with regard to this act when he was dong it. It must have been done, knowingly, voluntarily, fraudulently,

dishonestly, or the like. And when it is stated that the act must be done with a particular knowledge or intention, the definition goes on to state what

he must have known, or what he must have intended.

If this is the case with the Indian Penal Code, we find now a large and growing class of statutory offences, whore acts previously innocent are

forbidden, or acts previously optional are commanded, simply because the State considers such legislation necessary for its own interests, or for

the protection of some particular class of community. We shall now examine what place this plea of mens rea has got in these special Acts. Here

the object of the State is merely to compel the adoption of a particular line of conduct, and the penalties that are imposed are intended, nor for

punishment, but for prevention as the only means which the State has at its disposal for the enforcement of its laws. Now, in regard to such cases,

questions have frequently arisen, whether a person is punishable under the statute, when he has violated its provisions in ignorance of the fact on

which the violation depends. In some cases of this sort, the Judges, influenced by the ''mens rea'' doctrine, have sought to solve the question by

enquiring whether the proceeding was really a criminal proceeding or not. It is now, however, settled that the true test is to look at the object of

each Act that is under consideration to see how far knowledge is of the essence of the offence created. In arriving at this decision, it has been held

material to enquire: (1) Whether the object of the statute would be frustrated, if proof of Such knowledge was necessary; (2) Whether there is

anything in the wording of the particular section which implies knowledge; (3) Whether there is anything in other sections showing that knowledge

is an, element in the offence, which is omitted or referred to in the section under discussion. These tests have been applied in cases arising under

the Licence Laws and other special enactments.

The place of mens rea in special Acts has been discussed at considerable length in Supreme Court decision in -- ''Hariprasada Rao-v. The

State'', 1951 M W N Cri 102. There the English decisions were examined & have been cited with approval. It is pointed out there that in --

''Mousell Brothers Ltd. v. London and North Western Railway'', (1917) 2 K. B. 836, 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 happening of the forbidden thing, to impose a liability 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 Act 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 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

facie 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 in 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. Tyler'', (1891) 2

Q. B. 588 at P.592"".

In -- ''Mullins v. Collins'', (1374) 9 Q. B. 292 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 this case, Blackburn J., observed thus:

If we held 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'', (1895) 1-Q. B. 918. The familiar English cases are:--''R. v. Duke of Leinster'', (1924) 1 KB

311.:--''R. v. Bishop'', (1879)-5 Q.B.D. 259; --''Hobbs v, Corporation of Winchester'', (1910) 2 K.B. 471; --''Belts v. Armstead'', (1888) 20

Q.B.D. 771; --''Goulder v. Rook'', (1901) 2 K. B. 290; --''Laird v. Dobell'', (1906) 1 K. B, 131; -- ''Cundy v. Lecocq'', (1884) 13 Q.B.D. 207.

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

There cannot be the slightest doubt, therefore that in the circumstances of the case and in terms of the particular enactment which this accused

has violated the master is liable for the acts of his servants notwithstanding the plea that he might put forward that as the acts were done without his

knowledge, he had no ''mens rea''.

In the result, this criminal revision petition , wholly devoid of merits, is dismissed.