9911796707
TMI Blog1964 (9) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... him for purposes subsidiary to mining. On 17th January 1956 the petitioner entered into a contract with one Smt. Sarla Devi Khemka for raising of iron ore from 8.48 acres; out of the total area of 12.59 acres, leased out to him by the State, According to this agreement, Sarla Devi undertook to deliver saleable iron ore above 62 per cent Fe. F. O. R. Sihora at a fixed charge of ₹ 12/-. per ton. The agreement, which was for a duration of three years, inter alia required the raising contractor to observe and perform all the mining rules and regulations and all other labour laws in force and made the contractor alone responsible for payment of damages, loss or liabilities arising out of day to day working of the mine, resulting from negligence or non-observance of the mining rules and regulations or of labour laws in force for the time being. It also prohibited the raising contractor from mining or encroaching on any area outside the area shown in the plan annexed to the contract except for the purpose of stacking material or for building roads and structures. In December 1957 when the petitioner found that the raising contractor and persons working under and on behalf of he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner went on to say that the circumstances of the case suggested that Govind Prasad Sharma and Smt. Sarla Devi were acting in collusion and that they both stood to profit by illegal extraction of iron ore. On this view, the Commissioner came to the conclusion that Govind Prasad had been rightly penalised. The Commissioner, however, added that the Additional Collector should have passed an order of penalty not under Section 247(7) of the 1959 Code but under Section 228(7) of the M. P. Land Revenue Code of 1954. Thus, the petitioner's appeal was dismissed by the Commissioner. The applicant then preferred a second appeal before the Board of Revenue. The learned Member of the Board of Revenue who heard the appeal found that the extraction of iron ore from that part of khasra No. 537 which had not been, leased out to the petitioner for extraction of iron, ore was by Smt. Sarla Devi; and that this was. done by her in the course of her employment as an independent contractor , but still the petitioner was liable as the contractor was inducted, to the land by him and the extraction done by Smt. Sarla Devi was in the course of her employment as a contractor of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of his employment. It is, therefore, necessary to state first what the law is on the question of mens rea as a constituent element of a crime and the criminal responsibility of a master for acts of his servant committed contrary to his instructions and, without his knowledge. The law is well settled by numerous decisions. The well established rule is that unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the defendant could not be held guilty of an offence under a criminal law unless he has a guilty mind. See Srinivas Mall v. Emperor AIR 1947 PC 135, and Hariprasada Rao v. State. In Halsbury's laws of England, Volume 10 (Third Edition), the following statement occurs in paragraph 508 on Mens rea in statutory offences : A statutory crime may of may not contain an express definition of the necessary state of mind. A statute may require a specific intention, malice, knowledge, wilfulness, or recklessness. On the other hand, it may be silent as to any requirement of mens rea, and in such a case in order to determine whether or not mens rea is an essential element of the offence, it is necessary to loo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owledge 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 cases the Legislature absolutely forbids the act and makes the principal liable without a mens rea. (page 844). Atkin J., while expressing his agreement with Lord Reading, stated the matter thus: I think that the authorities cited by my Lord make it plain that while prima facie 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 word 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 in ordinary circumstances be performed and the person upon whom the penalty is imposed. (page 845 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall rest in the Government; and that no person without lawful authority shall extract minerals from any mine or quarry, the right to which vests in, and has not been assigned by, the Government. Thus, Sub-section (7) of Section 228 forbids absolutely the acts mentioned in that sub-section under a penalty. So also Sub-section (8) further forbids those acts by providing for the seizure and confiscation of any mineral extracted or removed from any mine or quarry by any person the right to which has not been assigned to him by the Government. The offence under Section 228(7) is of a kind what Channell, J. described in Pearks, Gunston and Tee, Ltd. v. Ward (1902) 2 KB 1 at p. 11 as quasi-criminal offences...... where certain acts are forbidden by law under a penalty, possibly even under a personal penalty, such as imprisonment, at any rate in default of payment of a fine which form exceptions to the rule that a master cannot be made liable criminally for an offence committed by his servant. The acts of extraction or removal of mineral are such as would, normally be performed by servants or employees. Any particular intent or state of mind is not of the essence of the contravention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision of his master, and is bound to conform to all reasonable orders given him in the course of his work; an independent contractor, on the other hand, is entirely independent of any control or interference, and merely undertakes to produce a specified result, employing his own means to produce that result. An agent, though, bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal. An agent, as such, is not a servant but a servant is generally for some purposes his master's agent, the extent of the agency depending upon the duties or position of the servant, and in some cases an independent contractor may also be an agent. (pages 145 and 146). The learned Member of the Board of Revenue has not held with reference to the terms of the raising contract that Smt. Sarla Devi, though an independent contractor, was in effect no better than an agent or servant of the petitioner, and that the applicant reserved for himself a right of control or authority over her in the execution of the extraction work. Accepting the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom employing any raising contractor for the extraction of iron ore. They did not even prescribe that if the petitioner-lessee employs an independent contractor for performing the work of extraction, then he would be responsible and liable for, any extraction done by the contractor contrary, to the terms of the lease given to him and would, be liable even, if the contractor during the subsistence of the raising contract does the work of extraction anywhere contrary to the provisions of, Section 228(7). In the absence of such statutory or contractual duty, the petitioner cannot clearly be subjected to penalty under Section 228(7) for the raising contractor's illegal act of extraction contrary to Section 228(7) of the 1954 Code. Both the Commissioner and the Board, of Revenue were inclined to think that there were circumstances suggesting collusion between the contractor and the petitioner. But this was not the footing on which the Additional Collector, Jabalpur, enquired into the matter of illegal extraction done by Smt. Sarla Devi and proceeded to determine the liability of the- petitioner as an abettor or an accomplice. The fact that the petitioner appointed a person to sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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