# Srinivas Mall Bairolia v. King Emperor (l.L.R. 26 Pat. 46

- **Citation:** [1951] 1 S.C.R. 322
- **Court:** Supreme Court of India
- **Decided:** 1951
- **Case number:** Appeal (Criminal Appeal No. 15 of 1950
- **Bench:** Saiyid Fazl Ali, Mehr Chand Mahajan, Mukherjea, Chandrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/srinivas-mall-bairolia-v-king-emperor-l-l-r-26-pat-46-85
- **Pages:** 11

## Headnote

Criminal law-Mens rea-'-M otor Spirit Rationing Order, 1.941,
els. 22, 25, '1:1-Defence of India Rules, 1939, r. 81 (4)-Supply of
petrol without coupons-Omission to make prescribed ·entries in
coupons-Liability of employer for acts of employees-C onstrudion
of statutes.
Unless a statute either clearly or by necessary implication
rules out mens rea as a constituent 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.
Clauses 22 and 25 of the Motor Spirit Rationing Order, 1941,
read with the Defence of India Rules, 1939, do not rule out the
necessity of mens rea. Therefore, where the employees of the
licensee of a petrol filling station supply petrol to a car-owner
without taking coupons and thus act in contravention of the provisions of the said clauses, the licensee, who was not present
when the wrongful act was done and had no knowledge of it,
could not be convicted for contravention of the said clauses
under r. 81 (4) of the Defence of India Rules, 1939.
Clause Z1 of the said Order is however differently worded
aud imposes a duty on the supplier to endorse or cause to be
endorsed the registration or other identifying mark of the vehicle
to which petrol is furnished and if these particulars are not
endorsed by his employees on the petrol coupons against which
petrol is supplied the supplier would be liable even if he had no
knowledge of the wrongful act of his employees.
Srinivas Mall Bairolia v. King Emperor (l.L.R. 26 Pat. 46,
P.C.) and Isak Solomon Macmull v. Emperor (A.l.R. 1948 Born.
364) referred to.

## Text

1961
Ma1'Ch 19,
322
SUPREME COURT REPORTS
[h)51]
RAVULA HARIPRASADA RAO
11.
THE STATE.
[SAIYID FAZL ALI, MEHR CHAND MAHAJAN,
MUKHERJEA, and CHANDRASEKHARA AIYAR JJ.]
Criminal law-Mens rea-'-M otor Spirit Rationing Order, 1.941,
els. 22, 25, '1:1-Defence of India Rules, 1939, r. 81 (4)-Supply of
petrol without coupons-Omission to make prescribed ·entries in
coupons-Liability of employer for acts of employees-C onstrudion
of statutes.
Unless a statute either clearly or by necessary implication
rules out mens rea as a constituent 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.
Clauses 22 and 25 of the Motor Spirit Rationing Order, 1941,
read with the Defence of India Rules, 1939, do not rule out the
necessity of mens rea. Therefore, where the employees of the
licensee of a petrol filling station supply petrol to a car-owner
without taking coupons and thus act in contravention of the provisions of the said clauses, the licensee, who was not present
when the wrongful act was done and had no knowledge of it,
could not be convicted for contravention of the said clauses
under r. 81 (4) of the Defence of India Rules, 1939.
Clause Z1 of the said Order is however differently worded
aud imposes a duty on the supplier to endorse or cause to be
endorsed the registration or other identifying mark of the vehicle
to which petrol is furnished and if these particulars are not
endorsed by his employees on the petrol coupons against which
petrol is supplied the supplier would be liable even if he had no
knowledge of the wrongful act of his employees.
Srinivas Mall Bairolia v. King Emperor (l.L.R. 26 Pat. 46,
P.C.) and Isak Solomon Macmull v. Emperor (A.l.R. 1948 Born.
364) referred to.
CRIMINAL APPELLATE JURISDICTION : Appeal (Criminal Appeal No. 15 of 1950) from a judgment and order
of the High Court of Madras dated 19th August, 1947.
in Criminal Revision Petitions Nos. 1017 and 1018 of
1946 rejecting an application to set aside the conviction and sentence of the appellant by the Sessions
Judge of Guntur under clauses 22 and 27 of the Motor
Spirit Rationing Order, 1941.
Special leave was
.
S.C.R.
SUPREME COURT REPORTS
323
granted by the Privy Council and the, appeal was
originally registered as Privy Council Appeal No. 14
of 1949. The case was subsequently transferred to the
Supreme Court.
K. Bhimasankaran (Durga Bai, with him) for the
appellant.
R. Ganapathi·Iyer, for the respondent.
1951. March 19, The judgment of the Court
was delivered by
FAZL ALI J.-This appeal, whic~ has been preferred
after obtaining special leave to appeal from the Privy
Council, is confined to the single question whether mells
rea is necessary to constitute an offence under section
81 of the Defence of India Rules.
The facts of the case are briefly these. The appellant
is the licensee of two petrol filling stations Nos. 552
and 276 at Guntur but is a resident of Chirala, 40
miles away. He is a Presidency First Class Bench
Magistrate at Chirala and manages what has been
described as a vast business at several places. Ch. Venkatarayudu and Dadda Pichayya, his employees, were
respectively in charge of the aforesaid filling stations.
In 1946, the appellant and his two employees were
tried before the Sub-Divisional Magistrate of Guntur
in respect of offences under the Motor Spirit Rationing
Order, 1941, and were convicted in each of the cases
on the 18th July, 1946. In the first case, the charges
against the appellant and the employee in charge of
the pump in question therein were that they on the
27th June, 1945, at Guntur, supplied petrol to 3 cars
without taking coupons, in contravention of clause 22
read with clause 5 of the said Order promulgated under rule 81 (2) of the Defence of India Rules and that
they, on the same day and atthe same place, accepted
coupons relating to two other cars in advance without
supplying petrol, in contravention of clause 27 of the
Order. The charges in the second cas.e were that the
appellant and the employee in the second pump similarly supplied during the period of 24 hours from 6
a. m. of the 28th June, 1945, petrol to 4 motor vehicles
1951
v.
TheS«m.
Fail Ali J.
1951
Hari,pf'a8ada
Rao
v.
'l'he State.
l!'azt Ali J.
324
SUPREME COURT REPORTS
[1951]
without taking coupons, in contravention of clause 22
read with clause 5, accepted coupons of three other vehicles in advance without issuing petrol, in contravention
of clause 27, and supplied petrol to two other vehicles
against coupons but without making necessary endorsements and particulars on the reverse of the coupons
infringing thereby clause 27 A of the said Order. The
Sub-Divisional Magistrate, Guntur, found the appellant
and the employee concerned in each case guilty of the
charges brought against them and sentenced the appellant (with whose case alone we are now concerned) to
a fine of Rs. 30 on the first count and Ks. 20 .on the
second in the first case with simple imprisonment for
one week in default, and to a fine of Rs. 20 on each of
the three counts in the second case with one week's
imprisonment in default. The plea of the appellant
before the Magistrate was that he was the presiding
1st Class Bench Magistrate at Chirala, that he was
carrying on business in petrol at various centres
through servants and he had· issued instructions to
them not to deviate from the rules under any circumstances and that he could not be made liable for transgression of the rules committed by his employees. The
Magistrate however overruled the plea and convicted
the appellant as stated above. The appellant thereafter
preferred an appeal to the Sessions Judge at Guntur,
who, while setting aside the conviction of the appellant on the second count in each case, confirmed the
conviction and sentence in respect of the other charges,
on the 9th September, 1946. This was confirmed in
revision by the High Court at Madras on the 19th
August, 1947. Thereupon, the appellant applied to
the .Privy Council for special leave which was granted
on the 9th July, 1948, limited to the single question
whether mens rea is necessary to constitute an offence
under rule 81 of the Defence of India Rules.
The question to be decided in this appeal arises
upon the plea taken by the appellant, which has been
already referred to, and the assumption on which the
courts below have proceeded in dealing with the case .
. The plea of the appellant that he was not present at
•
S.C.R.
SUPREME COURt REPORTS
325
Guntur when the alleged offences were committed has
not been negatived by the lower courts, but they have
held that he was nevertheless liable, as the question of
mens rea was not relevant to the offences with which
the appellant was charged. This view is set out very
clearly in the following passage which may be quoted
from the judgment of the trial Magistrate : -
" It is argued on behalf of accused 1 that he is not
a resident of Guntur and that he has no knowledge of
any infringement committed by accused 2. If any
breach of the rules is committed by either proprietor
or his servant, both are guilty whether they had the
knowledge of the breach or not. The question of mens
rea will, of course, affect the measure of punishment
but it cannot affect the conviction (vide 1943, M.L.J.
38)."
.
.
Before deciding the question ?-S to how far mens rea
is material to conviction for the offences with which
the appellant is charged, it is necessary to refer to the
relevant provisions of the Defence of India Rules and
the Motor Spirit Rationing Order, 1941. Rule 81(2)
of the Defence of India Rules empowers the Central or
the Provincial Government to provide by order, in
certain circumstances, for regulating amongst other
matters, distribution, disposal, use or consumption of
articles or things and for requiring articles or things
kept for sale to be sold either generally or to specified
persons or classes of persons or in specified circumstances, The Central Government in pursuance of the
authority thus conferred made the Motor Spirit
Rationing Order, 1941, for ''securing the defence of
British India, the efficient prosecution of the war and
for maintaining supplies and services essential to the
life of the community." Clause 2(d) of the Order
defines " dealer " as meaning a supplier carrying on
the business of supplying motor spirit as a retail
business and includes a person having charge of a supply
of motor spirit controlled by Government from which
any person is furnished with motor spirit for private
use. Sub-clause (m) defines " supplier" as meaning a
person carrying on the business of supplying motor
1951
Ravtda
Hariprmada
Rao
v.
The Swte.
Fa.ZAUJ.
1951
Bavula
Haripraaada
Rao
v.
The State.
Faz! Ali J.
326
SUPREME COURT REPORTS
[1951]
spirit .. Clause 5, which is the next relevant provision,
runs thus:-
" Motor spirit required for any vehicle not covered
by clause 3 or clause 4 shall be furnished or acquired
only against the surrender to a supplier at the time of
supply of valid ordinary coupons or of a valid supple.
mentary coupon and only in accordance with any
conditions or instructions appearing on or attached to
the coupons."
Clause 22 lays down :
"No person shall furnish or acquire a supply of
motor spirit otherwise than in accordance with the
provisions contained in this order."
Clause 27 is to the following effect:-
" No person shall surrender to a supplier and no
supplier shall accept special receipts or coupons at a
time other than the time at which the supply of motor
spirit authorised by the special receipts or coupons or
acknowledged by the receipts is furnished."
Clause 27A runs as follows:-
" When motor spirit is furnished against the
surrender of one or more coupons, the supplier shall
immediately endorse,, or cause to be endorsed, on each
coupon so surrendered the registration or other identifying mark of the vehicle to which the· motor spirit
is furnished."
Rule 81(4) of the Defence of India Rules, which
provides for the imposition of a penalty, says that " if
any person contravenes any order made under this rule,
he shall be punishable with imprisonment for a term
which may extend to three years or with fine or both."
It is contended on behalf of the respondent that
though ordinarily a person should not be held liable for
the criminal acts of another and no person can be
charged with the commission of an offence unless a
particular intent or knowledge is found to be present,
mens rea is not of the essence of the offences with which
we are concerned in this case and the appellant must
be held liable for the acts of his employees. The question raised in this appeal was considered by the Privy
S.C.R.
SUPREME COURT REPORTS
327
Council in Srinivas Mall Bairolia v. King EmperorP).
In that case, the appellants before the Privy
Council were convicted under the Defence of India
Rules relating to the control of prices and were
sentenced to terms of i1:nprisonment. The 1st appellant was acting as Salt Agent for part of the district of :Oarbhanga. He had been appointed to this
office by the District Magistrate, and it was his duty
to sell to licensed retail dealers the~ supplies of salt
which were allocated by the Central Government to his
part of Dharbang~ district. The second appellant was
employed by the first. appellant and had been entrusted with the duty of allotting the appropriate quantity
of salt to each retail dealer, and noting on the buyer's
licence the quantity which he had bought and received.
By rule 81 (2) of the Defence of India Rules, the Provincial Governments were empowered to make orders
to provide for controlling the prices at which articles
or things of any description whatsoever might be sold.
The Defence of India Act, 1939, under which the rules
were framed, empowered the Provincial Governments
to delegate the exercise of their powers to certain
officers, and the power to provide by order for controlling the prices at which various articles (among them
salt) might be sold, had been delegated to the District
Magistrates. Rule 81 (4) of the Rules provided for the
punishment of persons guilty of contravening any such
orders. Both the appellants were jointly charged with
having sold salt on 3 days in July, 1943, to three
named traders, in each case at a price exceeding the
maximum price which had been fixed by order of the
District Magistrate. The 1st appellant was also separately charged, in respect of the same sales, with having
abetted the 2nd appellant's contravention of the order.
The trial Magistrate acquitted the 1st appellant of the
substantive offences but convicted him on the 3 charges of abetting. The Sessions Judge and the High Court
in revision confirmed the convictions.
The Privy
Council ultimately upheld the conviction of the appellants on the merits but with regard to the view taken
by the High Court that even if 'the first appellant was
(1) I.L.R. 26 Pai. 48.
19111
.Ravula
Haripro«lda
Rao
v.
7'/&e Slate.
Fazl .Ali J.
1951
Rawla
Bari~
Baa
v.
The State.
Fazl AUJ,
328
SUPREME COURT REPORTS
[1951)
not proved to have known of the unlawful acts of the
second appellant, he was still liable on the ground that
"where there is an absolute prohibition and no question
of mens rea arises, the master is criminally liable for
the acts of the servant", their Lordships observed as
follows:-
"With due respect to the High Court, their Lordships think it necessary to express their dissent from
this view. They see no ground for saying that offences
against those of the Defence of India Rules here in
question are within the limited and exceptional class
of offences which can be held to be committed without
a guilty mind. See
th~ judgment of Wright J. in
Sherras v. De Rutzen('). Offences which are within that class are usually of a comparatively minor
character, and it would be a surprising result of
this delegated legislation if a person who was
morally innocent of blame could be held vicariously
liable for a servant's crime and so punishable • with
imprisonment for a term which may extend to three
years.' Their Lordships agree with the view which
was recently expressed by the Lord Chief Justice of
England, when he said: •It is in my opinion of the
utmost importance for the protection of the liberty of
the subject that a court should always bear in mind
that, unless the statute, either clearly or by necessary
implication rules out mens rea as a constituent part of
a crime, a defendant should not be found guilty of an
offence against the criminal law unless he has got a
guilty mind: Brend v. Wood(•)'.''
.
In our opinion, the view of the law as propounded by
the Privy Council is the correct view, and, applying it
to the present case, it is difficult to hold the appellant
guilty of the offence under clause 22 read with clause 5
of the Motor Spirit Rationing Order, 1941.
The
language of clause 22 does not lend support to the
contention that even an innocent master will be
criminally liable for an act of his servant. This clause
has already been quoted, but, to make the point clear,
it may be stated that it provides that no person shall
furnish ...... motor spirit otherwise than in accordance
{11 [18V6] l Q.B. 918, V21,
1~1 {1946) 110 J.P. 817, 818.
.
S.C.R.
SUPREME COURT REPORTS
329
with the provisions contained in the Order.
The
clause is not aimed specifically against a supplier, but
is general in its language, and will hit the individual
person, whether he be the supplier or not, who contravenes the provision. The language of the clause
also suggests that only the person who furnishes
motor spirit contrary to the provisions of the Order
will be affected by the contravention.
In the course of the arguments, reference was made
on behalf of the appellant to the decision of the Bombay
High Court in Isak· Solomon Macmull v. Emperor(1)
which is a case relating to the contravention of clause
22 of the Motor Spirit Rationing Order. In that case,
the learned Chief Justice, who delivered the judgment,
referred to the well established rule that unless a
statute either clearly or by necessary implication
rules out mens rea as a constituent part of a crime, the
defendant should not be held guilty of an offence
. under the cri!llinal Jaw unless he has a guilty mind .
. Relying upon this rule, he held that where a servant
sells petrol to a bogus customer in the absence of
coupons in contravention of the Motor Spirit Rationing Order, and the master is not present at the time
nor has he any knowledge of the supply of petrol by
the servants to the bogus customer, the master cannot
be held to be vicariously liable for the act of the servant. In our opinion, this decision is correct and is
directly applicable to the present case.
We have yet to deal with the third charge in the
second case, which relates to the infringement of clause
27 A of the Motor Spirit Rationing Order. That clause,
as already stated, makes it incumbent upon the supplier
to endorse, or cause to be endorsed, the registration
or other identifying mark of the vehicle to which the
motor spirit is furnished. The substance of the charge
on which the appellant has been convicted is that these
particulars were not endorsed on several coupons
against which petrol had been supplied. Here again,
the main contention put forward on behalf of the
{I) A.I,R. 1948 Bom, 864,
48
1951
Ra vu la
H ariprasada
Rao
v.
The Stat•.
Fazl Ali J.
1951
R.avula
Haf'ipramda
Rao
v.
The State.
Fa.I Ali J.
330
SUPREME COURT REPORTS
[1951]
appellant was that the appellant cannot be held guilty
inasmuch as the default in question was committed
not by him personally, but by his servants. Having
regard to the language of the clause, however, this contention cannot be accepted. Clause 27A, as we have
already seen, throws the responsibility for making the
necessary endorsement on the supplier. The definition
of the word 'supplier' in the Act has already been
quoted, and there can be no doubt that if clause 27A
is contravened, a person who comes within the definition of the word 'supplier' must be held guilty of the
contravention. The object of this clause clearly is
that the supplier of petrol should set up a complete
machinery to ensure that the necessary endorsements
are made on the coupons against which petrol is
supplied. It is conceivable that in many cases the
default will be committed by the servants of the
supplier, who are in charge of the petrol pump, but
that fact by itself will not exonerate the supplier from
liability.
In Mousell Brothers v. London and North-Western
Railway('), 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
the happening of the forbidden thing, to impose a liabjlity 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 Acts 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
(1) Cl9lf] II :tt.B.D. 838 ol 84',
S.C.R.
SUPREME COURT REPORTS
331
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 faci.e 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 m 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.
Tylor(1)."
In Mullins v. Collins(2), 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 the case,
Blackburn J. observed thus :-
'' If we hold 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(3).
The principle
laid down in these cases has been followed in several
cases in this country also.
In this view, the appeal is allowed in part, and
while the conviction and sentence imposed on the
11. [1891 J 2 Q B •ss, b91.
(2) l\814) L.R. 9 Q.B. 292.
( 9) (1~95] 1 Q B. 918, 922.
1951
v.
Th• Stale.
Fazl AUJ.
1951
Ma""' 14.
332
SUPREME COURT REPORTS
[1951)
appellant on the first charge in both the cases are
quashed, the conviction and sentence on the third
charge in the second case are affirmed .
. Appeal allpwed in part.
Agent for the appellants: S. Subramanian.
Agent for the respondent: P. A. Mehta.
SREE SREE ISWAR GOPAL JIEU THAKUR
II.
PRATAPMAL BA.GARIA AND OTHERS.
(Civil Appeal No. 95 of 1949)
PRATAPMAL BAGARIA AND OTHERS
II.
SREE SREE ISWAR GOPAL JIEU THAKUR.
(Civil Appeal No. 96 of 1949)
[SAJYJD FAZL ALI, s. R: DAS and
CBANDRASEKHARA AIYAR JJ.)
RelifiO#S e""-ents-Alienation by trustee-Legal necessity
-01' lr•,.IMlions-Original parties and witnesses not a•ailableV alue of ,.citals-Permanent lease-Not questioned by successive
trustu1-Presumption of validity.
Where the issue is whether there was legal necessity for a
particular transaction, if all the original parties to the transaction
and those who could have given evidence on the relevant points
have passed away, a recital consisting of the principal circumstances of the case assumes greater importance and cannot be
lightly set aside.
Ba,.ga Chandra Dhar Biswas v. ]agat Kishore Chowdhuri
(43 I.A. 249) referred to.
Where the.validity of a permanent lease granted by a shebait
has remained unquestioned for a very long time since the grant,
although it is not possible to ascertain fully what the circumstances were in which it was made, the Court should assume that
the grant was made for necessity so as to be valid beyond the
life time of the gran tor.