Shrinath vs Municipality, Gwalior

Khan, J.—The facts leading to this revision in short are that the Municipal Magistrate convicted the accused u/s 139 of the Municipal Act of 1954 for an obstruction on the foot-path and on the basis of his admission of guilt, fined him Rs. 4/-. A revision was filed against this before the Sessions Judge, Gwalior, but it was rejected. Now the accused has filed this revision before the High Court and three points have been pressed before me.

(1) That it has not been proved that the prosecution was launched according to section 193 of the Municipal Act (Act No. 1 of 1954);

(2) That the Magistrate did not record the plea of guilty; and

(3) That mens rea is absent and it being an important ingredient of the offence, the accused is entitled to acquittal.

With regard to the first point, I find that this objection was net taken at the trial and according to section 114 of the Evidence Act the presumption is that all judicial acts have been regularly performed. Since the objection was not taken at the stage of the trial, I do not think it proper to consider it at this stage.

Mr. Har Govind Mishra, learned counsel for the applicant, has referred me to a decision reported in 1956 Madhya Bharat Law Journal page 973 and he contends that according to this decision it was the duty of the prosecution to show that it had been directed by the Municipal Commissioner or any other Officer authorised by him. But from a perusal of the case cited before me I find that nothing of the kind was decided in the case and that it is not at all applicable. In the case referred to above the Municipal Engineer had directed the prosecution and in view of the clear direction given in section 193 of the Municipal Act, he was not one of the parsons authorised to launch prosecution. My learned brother Dixit J. never said in his judgment that before launching prosecution, it it the duty of the prosecution to prove that under Municipal Act the prosecution has been ordered by the person authorized.

With regard to the second objection about not recording the plea of guilty, I find from the judgment of the trial Court that it has substantially done so. The counsel for the applicant read over to me the revision-petition before the Sessions Judge and I find that the accused had admitted there that he had placed weighing scales on the pavement that caused obstruction. This in substance amounts to an admission of his guilt, and the plea sought to be raised before me has no substance and I reject it.

Regarding point No, 3, the learned counsel has submitted that because in this case there is a total absence of mens rea, which is a constituent part of every crime, the applicant is entitled to a clear acquittal,

This submission deserves some attention in so far as the argument is based upon a wrong appreciation of the doctrine of mens rea. The principle of mens rea is derived from the latin maxim, Actus non facit reum, nisimens sit rea, which means the act itself does not constitute guilt unless done with a guilty intent. In other words the intent and act must both concur to constitute a crime. But this is not a rule of universal application. In Tolson''s case (1889, 23 Q.B.D. 168; it has been observed that "although prima facie and as a general rule there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject-matter and may be so framed as to make an act criminal whether there has been any intention to break the law or not, There is a large body of municipal law in the present day which is so conceived."

In the instant case, the applicant is charged with an infringement of section 139 of the Municipal Act, which runs thus:--

Section 139 (1):-- "Whoever in any place, after it has become a municipality, shall have built or set up, or shall built or set up any wall or any fence, rail, post, stall, verandah, platform, plinth, step or any projecting obstruction or thing, or other encroachment or obstruction, in any public street or shall deposit or cause to be placed or deposited any box, bale, package or merchandise, or any other thing in such street, or in or over or upon, any open drain, gutter, sewer or aqueduct in such street, shall be punished with fine which may extend to twenty-five rupees"

A perusal of this section would show that an infringement of it is wrong without reference to any intention. The principle of mens rea is not to be applied to all statutes and we must look to each statute to find out whether and how far "intention" is of the essence of the offence created. In the absence of any reference to intention in section 139 of the Municipal Act, I have no doubt that the section does not attract the application of the doctrine of mens rea. I may add that infringement of any municipal rule does not amount to a crime in the real sense--the whole tenor of the municipal law is to prohibit some acts in the interest of public under a penalty. My conclusion, therefore, is that unless a particular enactment prescribes that particular mental condition known as mens rea the doctrine cannot be invoked. I am fortified in my view by a Calcutta decision, Legal Remembrancer Bengal Vs. Ambika Charan Dalal (1946) 2 Cal. 127. The contention must therefore be rejected as being untenable.

For reasons stated above the revision is dismissed.