Full Judgment Text
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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