# Srirtiotu 11am1 v. Mahabir Prasad dlld Otlurs. Muk/urfa• ]

- **Citation:** [1951] 1 S.C.R. 284
- **Court:** Supreme Court of India
- **Decided:** 1949-01-21
- **Case number:** Appeal (Criminal Appeal No. 19 of 1950
- **Bench:** Saiyid Fazl Ali, Mehr Chand Mahajan, Munn:RJEA, Chandrasekhara Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/srirtiotu-11am1-v-mahabir-prasad-dlld-otlurs-muk-urfa-81
- **Pages:** 9

## Headnote

Criminlll Prot:edure Code, 1898, ss. 417, 439-Revision againll
order of ocq11ittal-lnterf<rmce-Guiding principles-Indian Merchant Shipping Act, XX! of 1923, ss. 25, 26-Supply of seamenConstitution of Board by owners of ships and seamen for recruii.
ment of seamen-Levy of one rupee from each
seaman
towanls
expenses of B011rd-Whether
contrDvenes ss. 25,
26-Giving .of
muster card permitting appearance at
muster-Whether amounts·
to
11engaging 01' supplying" seamen.
The rcvisional
jurisdiction conferred on the High Court
under s. 439 of the Code of Criminal Procedure is not to be lightly
exercised when it is
invoked by a private complainant against
an order of acquittal, against which the Government has a right of
appeal under s. 417.
It could be exercised only in exceptional
cases where the interests of public justice require intcrfcn:ncc
for ):he correction of a manikst illegality or the prevention of a
gross
miscarriage of justice.
This jurisdiction is not ordinari!J
invoked or used merely because the lower Court has
taken a
wrong view of the law or misappreciated the evidence on t1ie
l'CCDrd.
Shipowners had an organisation in Cakntta called the c.1cutta Liners' Confrcncc and the
seamen had an organisaliaa
S.C.R.
SUPREME COURT REPORTS
285
called the Joint Supply Office.
~ a result <>f a collective agreement
between
the
owners of the
ships
and
the
seamen's
representatives, the Calcutta
Maritime
Board
which
contained
an equal number of members representing the Calcutta Liners'
Conference and the Joint Supply
Office
was established.
The
seamen
presented themselves before this
Board and. were given
muster cards which permitted them to appear at the musters
where the captains of the ships engaged seamen.
For meeting
the office expenses of the Board the. owners used to pay Rs. 2 per
seaman erlgaged and after engagement each seaman paid Rs. 1 to
the owner
as
his contribution
towards these expenses.
The .
accused
was
the secretary of the Liners' · Conference and . .an
c:r officio honorary joint secretary of the Maritime Board, and a
seaman filed a · complaint . against him that, as he had collected
Re. 1 from him for the issue of a muster card he had committed
an offence under s. 26 (2) of the Indian Merchant Shipping Act :
Held, that the seamen to whom the muster cards were given
by the Mritime Board were not "engaged or supplied"
by the
Board or by any of its officers, nor was the sum of Re. 1 which
was levied out of the seaman's wages after he signed an agreement of employment,
remuneration received for providing the
man
with . employment,
and the accused was not guilty of any
offence under s. 25 or s. 26 of the Act.

## Text

1951
Srirtiotu
11am1;,,.,,,
v.
Mahabir Prasad
dlld Otlurs.
Muk/urfa• ].
1951
Marcb2
284
SUPREME COURT REPORTS
[1951)
The result is that we allow the appeal in part; th?
decree made by the High Court is affirmed in so far
as it dismissed the claim for specific performance.
The
plaintiff, however, will be entitled to a money decree
for the sum of Rs. 30,000 against the defendants
second party w'1th interest at 4% per annum from the
1st of September, 1943, to the date of realisation. Each
party to this appeal will bear his own costs.
Appeal allowed in part.
Agent for the appellant : R. C. Prasad.
Agent for respondents : Tarachand Brii Mohan Lal.
D. STEPHENS
"·
NOSIBOLLA.
(SAIYID FAZL ALI, MEHR CHAND MAHAJAN,
Munn:RJEA and CHANDRASEKHARA AYYAR JJ.]
Criminlll Prot:edure Code, 1898, ss. 417, 439-Revision againll
order of ocq11ittal-lnterf<rmce-Guiding principles-Indian Merchant Shipping Act, XX! of 1923, ss. 25, 26-Supply of seamenConstitution of Board by owners of ships and seamen for recruii.
ment of seamen-Levy of one rupee from each
seaman
towanls
expenses of B011rd-Whether
contrDvenes ss. 25,
26-Giving .of
muster card permitting appearance at
muster-Whether amounts·
to
11engaging 01' supplying" seamen.
The rcvisional
jurisdiction conferred on the High Court
under s. 439 of the Code of Criminal Procedure is not to be lightly
exercised when it is
invoked by a private complainant against
an order of acquittal, against which the Government has a right of
appeal under s. 417.
It could be exercised only in exceptional
cases where the interests of public justice require intcrfcn:ncc
for ):he correction of a manikst illegality or the prevention of a
gross
miscarriage of justice.
This jurisdiction is not ordinari!J
invoked or used merely because the lower Court has
taken a
wrong view of the law or misappreciated the evidence on t1ie
l'CCDrd.
Shipowners had an organisation in Cakntta called the c.1cutta Liners' Confrcncc and the
seamen had an organisaliaa
S.C.R.
SUPREME COURT REPORTS
285
called the Joint Supply Office.
~ a result <>f a collective agreement
between
the
owners of the
ships
and
the
seamen's
representatives, the Calcutta
Maritime
Board
which
contained
an equal number of members representing the Calcutta Liners'
Conference and the Joint Supply
Office
was established.
The
seamen
presented themselves before this
Board and. were given
muster cards which permitted them to appear at the musters
where the captains of the ships engaged seamen.
For meeting
the office expenses of the Board the. owners used to pay Rs. 2 per
seaman erlgaged and after engagement each seaman paid Rs. 1 to
the owner
as
his contribution
towards these expenses.
The .
accused
was
the secretary of the Liners' · Conference and . .an
c:r officio honorary joint secretary of the Maritime Board, and a
seaman filed a · complaint . against him that, as he had collected
Re. 1 from him for the issue of a muster card he had committed
an offence under s. 26 (2) of the Indian Merchant Shipping Act :
Held, that the seamen to whom the muster cards were given
by the Mritime Board were not "engaged or supplied"
by the
Board or by any of its officers, nor was the sum of Re. 1 which
was levied out of the seaman's wages after he signed an agreement of employment,
remuneration received for providing the
man
with . employment,
and the accused was not guilty of any
offence under s. 25 or s. 26 of the Act.
CRIMINAL APPELLATE JURISDICTION
Appeal
(Criminal Appeal No. 19 of 1950) against the orders of the
High
Coi,nt • 'of
Judicatiire at Calcutta dated
21st
January, 1949, and 29th August, 1949, in Criminal
Revision Cases Nos. 1007 of 1948 and 527 of 1949.
S. P. Sinh' (S. N. Mukherjee, with him) for the
appellants~
'
B. Sen f_or the resp11>ndent.
195L ,March 2. The judgment of the Court was
delivered by
CHANDRASEKHAR& A1YAR J.-This appeal comes up
before us on special leave granted by
His Majesty's
Order in Council and it is directed against orders made
by the Hon'ble Mr. Justice Sm of the High Court of
Judicature at Fort William in Bengal, directing a
retrial of the appellant D. Stephens, who had been
acquitted by the Chief Presidency Magistrate of contravening the provisions of
section 26 of the Indian
Merchant Shipping Aa.
1951
D. Stepluru
\.
N"iiolla.
C/1anr/rasekha'8
.d!»ar J.
1951
D. Sttfthert,':
v.
Nttsif,olla.
Chantlrasekhara
Aiyar J.
286
SUPREME COURT REPORTS
[1951]
The facts that gave
rise to
this prosecution are
correctly
set out in the following
two
paragraphs
which are quoted from the judgment of the learned
Chief Presidency Magistrate :-
"The owners of the ships. have an orgapisation
known as the
Calcutta Liners'
Conference.
The seamen have an organisation known as the Joint Supply
Office.
Since 1940-41 the
licensed broker system for
engagement
of
seamen
had ·been abolished.
The
Calcutta Maritime Board was established as a result qf
a collective agreement between the owners of the ships
and
seamen's representatives
for
recruiting
seamen.
It .is a joint negotiating machinery between the owners
and the seamen for direct engagement of seamen by
the owners.
The Joint Supply Office does not supply
the seamen.
The Calcutta Maritime Board also does
not supply nor engage seamen.
The engagement
is
made by
the Captains of the Ships.
The Calcutta
Maritime Board, at the relevant time,
was formed of
equal members representing · the Calcutta Liners' Conference (the owners) and the Joint Supply Office
(the
seamen).
At the present moment the Government of
India have
two representatives in the Calcutta Maritime Board.
There are two Joint Chairmen and two
joint Secretaries, one each from
each group of the
owners' and
searnens'
representatives.
Accused. Stephens is the Secretary of the Calcutta Liners' Conference
and is a paid officer.
His salary is paid by his
employers, the Calcutta Liners' Conference, with contributions obtained from the owners of the ships whose
association the
Conference is.
The accused is one of
the Joint Secretaries of the Calcutta Maritime Board
in his capacity as the Secretary of the Calcutta Liners'
Conference.
The Joint
Secretaries
of
the
Calcutta
Maritime
Board hold honorary posts
and receive no
remuneration."
"The procedure for
recruitment now is that the
seamen present themselves
before the
Calcutta
Maritime Board.
They are given
muster cards which
permit them to appear at the musters where the
Captal.ns of the ships engage the seamen.
The Board
S.C.R.
SUPREME COURT REPORTS
287
endeavours to lay down a procedure for the Captains of
the ships while engaging seamen.
There is an excess of
supply ·of seamen over the demand.
This had brought
in corruption.· To fight out corruption, the Calcutta
Maritime Board was conceived to find out a procedure
for the owners of the ships for employing seamen by
rotation.
For meeting the office expenses of the Calcutta Maritime Board the owners, at the relevant time,
used to pay Rs. 2 per seamen engaged.
After signing
on, each seamen pays back the owners Re. 1 as his
contribution towards office expenses of the Calcutta
Maritime Board.
None of the facts stated above was
contested for the complainant."
The complainant Nosibolla alleged that the accused
as Joint Secretary of the Board collected an illegal
charge of Rupee one from him for issue of a muster
card and thus contravened section 26 of the Indian
Merchant Shipping Act and that he was, therefore,
guilty of an offence within the meaning of sub-clause
(2) of that section.
The Chief Presidency Magistrate
acquitted the accused of the charge but on revision the
High Cou.n at Calcutta directed a retrial, holding that
the accused clearly contravened the provisions of section 25 of the Act, and that if the complainant was to
be believed when he said that the accused received
Re. 1 before registration, he was also guilty under section 26 of the Act; and both parties were allowed to
adduce additional evidence.
This second trial again
ended in an acquittal by the Chief Presidency Magistrate who came to the conclusion that the accused did
not supply or engage seamen, that he did not receive
any payment of Re. 1 for issuing the . muster card to
the complainant and that Re. 1 which is collected from
the seamen by the shipowners after employment by
way of deduction from wages is paid not as remuneration to the accused or any one else, but is really a
contribution towards the expenses of the Joint Supply
Office working under the Calcutta Maritime Board.
There was again a revision petition taken to the High
Coun against this order of acquittal and it . w.as heard
by the same learned Judge as before.
He differed from
54S. C. lndia/68
1951
D. Stepturu
v.
Noribolla.
Ch.mtlraitkhara
A&ar].
1951
D.SHplrenJ
v.
/(tJ.TM1olla~
CllantlrO.Sfkl111rd
Aiyc.r1.
288
SUPREME COURT REPORTS
[1951]
the Chief Presidency Magistrate on all the material
points and sent the case back again for a fresh trial in
a judgment which contains fit1dings almost amounting
to a direction to the Chief Presidency "Magistrate
to
convict the accused.
In the learned Judge's view the
issue of a muster card to seamen amounted to the
"supply" of seamen within the meaning of section
25
of the Act. The receipt of Re. 1 was a demand for
remuneration within the meaning of section 26, even
if it was ultimately spent for expenses of the running
of the Joint Supply Office and that a .Jcmand for payment would by itself constitute the offence, whether
the money was actually received or not.
It is against this interference in revision that the
present appeal was lodged before the Judcial Committee ·of the Privy Council on the ground that the
jurisdiction to direct a retrial was so exercised
in the
case as to constitute an infringement of the essential
principles of justice.
Before entering into a short discussion of the
question whether the view taken by the High Court
is right or wrong, it would be useful to set out the
relevant sections of the Merchant Shipping Act.
"24. (1) The Central Government or any
person
duly authorised by the Central Government in this
behalf may grant to such persons as may be deemed
fit licences to engage or supply seamen for merchant
ships in British India.
(2) Any such licence shall continue for such period
and may be granted and revoked on such terms and
conditions as the Central Government thinks proper.
25. ( 1) A person . shall not engage or supply a seaman to be entered on board any ship in British India
unless that person either holds a licence under this
Act for the purpose, or is the owner or master or mate
of the ship, or is bona fide the servant and in the
constant employ of the owner, or is a shippingmaster.
(2) A person shall not employ, for the purpose of
engaging a seaman to be entered on board any ship
S.C.R.
SUPREME COURT REPORTS.
289
in British India, any person unless that person either
holds a licence under this . Act for the purpose, or is
the owner or master or mate of the ship, or is bona fide
the servant and in the constant employment of the
owner, or is a shipping master.
(3) A person shall not receive or accept to be entered on board any ship any seaman if that person knows
that the seaman has been engaged or supplied in contravention of this section.
( 4) If a person acts in contravention of this section,
he shall for each seaman in respect of whom a,n offence
is committed be liable to a fine which may extend to
one . hundred . rupees, and,
if a licensed person, shall
forfeit his licence.
26. ( 1) A person shall not demand or receive direct-
. ly or indirectly, from any seaman, or from any person
seeking employment as a seaman, or from any person
on his behalf, any remuneration whatever for providing him with employment other than the fees authorised by, this Act.
(2) If a person acts in contravention of this section,
he shall for each such offence be liable to pay a fine of
fifty rupees, and, if a licensed person, shall forfeit his
licence."
On the facts as admitted. or proved in the evidence,
it is difficult· to see what offence the accused has committed.
Neither the Calcutta Maritime Board, nor
the Calcutta Liners' Conference supply the seaman.
The registration entitles the seamen to get muster
cards which enable them to appear at the musters,
and there, the Captains of the ships select and engage
the seamen.
It is after th.ts selection and engagement
that the
body of shipowners,
called the Calcutta
Liners' Conference, pay Rs. 2. to the Calcutta Maritime
Board out of which Re. I is their own contribution and
Re. l is the contribution by the. seaman which is·
deducted from his wages.
There is therefore no supply
of a seaman wfthin the meaning of section 25 of the
Act.
A number of
seamen offer
themselves for
employment and they are all gathered together at a
1951
D;Stephtns
v.
.
Nosibolla.
Chandrasekhara
Atyar :J.
1951
D. St<Phens
v.
Nosihvlla.
CMndrasekhara
A!Jar J.
290
SUPREME COURT REPORTS
[1951)
place, so that the shipowner or Captain of the ship may
select whomsoever he pleases.
There is no obligation
on the owners of the ships to select any particular
person, nor is any such selection made by the Maritime
Board either directly or through its servants for the
benefit of the owners and for employment under them.
The Calcutta Maritime Board of which the accused is
;m honorary Joint Secretary is an institution that was
created in the end of 1947, with the knowledge, if not
the approval, of the Government of India as a liaison
body or institution to bring the owners · and the seamen together, with reference to the engagement of seamen for sh'1ps.
The labour corps is brought into
contact with
the owners by the Maritime Board
through the Joint Supply Office but the seamen are
engaged by the shipowners or the Captains.
To a
certain extent, the recruitment is regulated by the
Maritime Board, but it is a misnomer to sav that the
seaman are suppned to the owners by the Board or by
any of its officers.
In his written statement found at
page 28 of the printed book the accused has stated,
and it is not controverted anywhere, that the system
of selection of crew through the agency of Serangs was
brought to an end owing to the opposition of the seamen themselves, who a!leged that it resulted iμ
widespread corruption as the Serangs recruited only those
who paid them heavily.
It is fantastic for the prosecution to suggest that
Re. 1 levied out of the seaman's wages after he signsthe agreement of employment amounts to remuneration received for providing the man with employment.
The remuneration paid to the accused which
is over Rs. 2,000 a month is by way of salary from the
Calcutta Liners' Conference under whom he is a paid
. Secretary.
The Calcutta
Maritime
Board receives
Re. 1 per seaman from the shipowners' association,
but this is by way of contribution towards. the expenses of the Joint Supply Office of the Board.
Thi•
is made perfectly clear in the evidence given on commission by Mr. C. P. Srivastava, Officer on Special
Duty, ·Ministry of Commerce, New Delhi, and of
I •
' ,...
•
(
-·-~--~--
8.C.R.
SuPREME COURT REPORTS
291
l\fr. Dikken examined on the side of the prosecution
who says that the contribution is made to meet the
running expenses of the Joint Supply ·Office and
l\faritime Board. Mr.·Goldwell of James.Finlav. &
Co., sixth witness for the defence, has stated that
the Calcutta Maritime Board and the Joint Supply
Office are financed by the Liners and that the accused
has nothing to do witK the engagement of the seamen.
There is also a finding of the Chief Presidency l\fagist·
rate, which has not been set aside, that the allegation
of the complainant that the accused received Re. 1 from
him prim to registration of his name in the Joint
Supply Office, has not been substantiated._ .. _
It is evident on the facts that the accused does.not .
engage or supply any seamen and does not demand or
receive directly or indirectly any remuneration for
providing any person with employment as a seaman .
. The facts leave no room for any doubt that the prosecution has failed to establish its case.
.
•
l\fr. Justice Sen says "I fully realise that, ordinarily
this Court ought not to interfere with orders of acouittal. It should do so only on exceptional grounds." It
is a matter of some regret th~t this realization bv him
of the very limited nature of the revi~ional iurisdiction
was not carried in to effect but· resulted in an order
directing the retrial of a man for a third time for
offences which could not be said to have been made
out even prima facie.
·
The revisional jurisdiction conferred on the High .
Court under. section 439 of the Code of Criminal Procedure is not to be lightly exercised, when it is invoked
by a private comolainant against an order of acquittal.
against which the Government·has a right of appeal
under section 417. It could be exerci8ed only in
exceptional crises where the interests of public justice
require interference for the correction of a manifest
illegality, or the prevention of a gross miscarriage of
justice. This iurisdiction is not ordinarilv invoked or
used merely because the lower court has taken a
wrong view of the law or misappreciated the evidencf'
.'l~
1951
D.SleplieM
v.
NosiboU~
Chandraaekharo
.A.iyar J~
1951
D. Slephnis
v.
NosiboUa.
Chatulrasthhara
AV'af].
1951
March 5.
292
SUPREME COURT REPORTS
[.1951]
on rerord.
As already pointed out, there has been no
such error in the present case; on the other hand, it
seems to us that. on both the previous occasions, the
Chief Presidency Magistrate was right in holding that
the accused was not guilt)' of any offence under sections
25 and 26 of the Indian Merchant Shipping Act.
The order of the High Court ·is set aside and that of
the Chief
Presidency
Magistr:tte is restored.
The
accused will stand acquitted of the charge.
Order set aside.
Agent for the appellant : P. K. Chatteriee.
Agent for the respondent : l. N. Shroff for P. K.
Bose.
V. RAMASWAMI AYYANGAR AND OTHERS
fl.
T. N. V. KAILASA THEVAR.
[SAIYID FAZL Au, MEHR CHAND MAHAJAN,
MUKHERJEA and CHANDRASEKHARA AIYAR JI.]
Madras Agriculturists' Relief Act (IV of 1938), ss. 7, 19-Joint
debtors-Application for scaling down made by some only-Decree
for
full amount against ex parte
defendants and
for
reduced
amount against
others-Legality and effect-Indivisibility of debt
-Payment of full amount as scaled down-Whether extinguishes
decree against all.
Under the Madras
Agriculturists' Relief Act,
1938, a mortgage decree can be scaled down in favour of some of the judgment
debtors alone, while as regards the others it is kept intact.
In a suit to enforce a mortgage executed by defendant No. 1
on his own behalf and on behalf of defendants Nos. 2 to 7, the
defendant No. 1 remained ex parte, and the others contested the
suit.
A decree for
Rs. 1,08,098 was passed by ~
trial court.
The Madras Agriculturist' Relief Act, 1938, was passed during
the pendenry of an appeal and cross appea~ and on the application of defendants Nos. 2 to 7 under the said Act the amount of
the decree was scaled down to Rs. 49,255 so far as defendants
Nos. 2 to 7 were concerned.
So far as defendant No. 1 was
coriccrned the
decree for the full
amount
rcmainCd as it
was.
Defendant No. 1 thereupon applied for scaling
down, but his