STATE OF GUJARAT & ANR. versus ACHARYA D. PANDEY & ORS.

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). Jn 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 !st accused in both those com· plaints was the Acharya, the I 0th was said to be the Mahan! and the other accused the associated trustees at the relevant time. It was said that all thes.e 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 !st 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.

p. 558, margin B

In the firsr 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 contraventi~n 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 alsa in the Samvat year 2018 and that the other accused connived at the contravention of the law by the 1st accused.

p. 558, margin E

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 !st accused admitied the withdrawals mentioned in the complaints but his case was that the withdrawals were made from his Hathu Khata, a Khata built. up by him and his ancestors and h:e has p,ut ·back that amount.

pp. 558–559, margin G

So far as accused 2 to 10 are concerned there is absolutely· no evidence against them. The only witness_ examined on ~-­ 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.

p. 559, margin A

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 10 him in respect of that amount. It is not possible to come to the conclusion, on the basis of the evid~ce· of P.W.l 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 leiter 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, ii does not show that he was guilty of any offence.

p. 559, margin C

Our above_ conclusion is sufficient to dispose of these appeals but as the High_ Court has elaborately gone into the question \"1hether the reqmrement of mens rea is a necessary ingredient of s. 35 (1), we shall proceed to examine that question.

p. 559, margin G

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. Secti<?n 35 ( 1) reads : '

p. 559, margin G

"Where the trust property consists of money .and cannot be applied immediately or at any early date to the purposes of the pubEc trust the trustee shall be bound (notwithstanding any direction contained in the instrun1ent 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 Cooperative bank approved by the Staie Government for the purpose or to invest it in public securities :

pp. 559–560, margin H

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 :

p. 560, margin B

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."

p. 560, margin C

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 ~~~.

p. 560, margin D

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( I) only a fine can be imposed and the punishment does not carry with it any stigma.

p. 560, margin E

The question whether a crime can be said to have been com milted without the necessary ·mens rea )las Jed to considerable controversy. The broad principles accepted by courts in this country as well as in England are : Where an offen~" is created by a statute, however comprehensive and unqualified the language of the statute, it is usually understood as silently requirin~ that the element of mens rea should be imported into the. defimtfon of the crime, unless a contrary intention is ·expressed or 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 conditiqn, whethe< con>tituted by knowledge or intention or otherwise. But this rule has several exceptions; as observed by Lord Evershed ir. Lim Chin Aik v. The Queen(').

pp. 560–561, margin G

"Where ihe subject matter of the st~tuk is . the regulation for the public welfare of a particular acti- ' ity-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 legi'..lature intended \'hat such activities sh0uld be carried out under conditions of strict liability. The presumption is that the statute or statutory instrument c~n 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 1nens rea."

p. 561, margin B

As long back as 1895 Wright J. observed in Sherras v. De Rutcen.

p. 561, margin D

"There is a presumption that mens rea, an evil intention of knowledge of the wrongfulness of the act is an essential ingredient in every offence; but that pre'. sumption is liable to be displaced either by the words of the st~tute cyeati.ng the offence or by the subjectmatte1:. with which 1t deals, and both must be considered.

p. 561, margin E

It !s further observed therein that the principal classes of exce~t10ns ~nay perhaps b~ ~educed to three. First. is a class of ts. which ar~ n.ot cnmma! in any real sense, but are acts wh1c h m the pt!bhc interest prohibited under a penalty A othe cla;, comprehends s?me. ~nd perhaps all public nuisan~s. £astly~ !here ma)'. b~ cases m which, although the proceeding is criminal h'rlll. it is really only a. summary mode of enforc·n . ·1

p. 561, margin F

But exce t . h g a c1v1 ~" ·" k P m sue cases as these, there must in general

p. 561, margin G

.1 , e g~ ty hnowhledge !1 th~ part of the defendant, or of soma

p. 561, margin G

om . e as. put m his place to act for hi m the part1cu!ar matter,. !n order to constitute a~· offe~e::!Jy T~~ ~re;ent case. m our op1mon. falls within th fi . tloned. abo\'e-Section 35 ( 1) deals with a q~asi~~~i~~~:ioic:t.men- ('l Q

p. 561, margin G

This Court in Ravu/e Hariprasada Rao v. The State( ruled ;that unless a statute either clearly or by necessary implication crules 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{'). 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(') this Court held that the lliability 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 observed after referring to the well known observations of Wright J, to which ·we have already made reference.

p. 562, margin A

"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 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 tban an innocent person should be prevented from proving his innocence in order that fewer guilty men may escape."

pp. 562–563, margin D

Section 35 (l) 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 ma1'e 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.

p. 563, margin A

For the reasons mentioned above these appeals fail and they are dismissed. Y.P. Appeal dismissed.

p. 563, margin C