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PETITIONER:

D. STEPHENS

Vs.

RESPONDENT:

NOSIBOLLA

DATE OF JUDGMENT:

02/03/1951

BENCH:

AIYAR, N. CHANDRASEKHARA

BENCH:

AIYAR, N. CHANDRASEKHARA

FAZAL ALI, SAIYID

MAHAJAN, MEHR CHAND

MUKHERJEA, B.K.

CITATION:

1951 AIR 196 1951 SCR 284

CITATOR INFO :

RF 1954 SC 266 (11)

F 1955 SC 584 (3)

R 1962 SC1788 (4)

R 1968 SC 707 (8)

R 1970 SC 272 (10)

RF 1973 SC2145 (4,8,9)

R 1975 SC 580 (4)

R 1978 SC 1 (15)

R 1986 SC1721 (9)

ACT:

Criminal Procedure Code, 1898, ss. 417, 439--Revision

against order of acquittal--Interference--Guiding princi-

ples--Indian Merchant Shipping Act, XXI of 1923, ss. 25,

26--Supply of seamen-Constitution of Board by owners of

ships and seamen for recruitment of seamen--Levy of one

rupee from each seaman towards expenses of Board--Whether

contravenes ss. 25, 26--Giving of muster card permitting

appearance at muster--Whether amounts to "engaging or

supplying" seamen.

HEADNOTE:

The revisional 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 complain-

ant against an.order of acquittal, against which the Govern-

ment has a right of appeal under s. 417. It could be exer-

cised only in exceptional cases 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 jurisdiction is not ordinarily invoked or

used merely because the lower Court has taken a wrong view

of the law or misappreciated the evidence on the record.

Shipowners had an organisation in Calcutta called the

Calcutta Liners' Conference and the seamen had an organisa-

tion

285

called the Joint Supply Office. As a result of a collective

agreement between the owners of the ships and the sea-

men's representatives, the Calcutta Maritime Board which

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contained an equal number of members representing the Cal-

cutta 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 en-

gaged seamen. For meeting the office expenses of the Board

the owners used to pay Rs. 2 per seaman engaged and after

engagement each seaman paid Re. 1 to the owner as his con-

tribution towards these expenses. The accused was the

secretary of the Liners' Conference and an ex officio honor-

ary 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 master cards were

given by the Maritime 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.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Appeal (Criminal

Appeal No. 19 of 1950) against the orders of the High Court

of Judicature at Calcutta dated 21st January, 1949, and 29th

August, 1949, in Criminal Revision Cases Nos. 1007 of 1948

and 527 of 1949.

S.P. Sinha (S. N. Mukherjee, with him) for the appel-

lants.

B. Sen for the respondent.

1951. March 2. The judgment of the Court was delivered

by

CHANDRASEKHARA AIYAR 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. Jus-

tice Sen 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 Act.

286

The facts that gave rise to this prosecution are cor-

rectly 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 organisation known as

the Calcutta Liners' Conference. The seamen have an organ-

isation know 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 of 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 Calcut-

ta 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' Confer-

ence (the owners) and the Joint Supply Office (the seamen).

At the present moment the Government of India have two

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representatives in the Calcutta Maritime Board. There are

two Joint Chairmen and two joint Secretaries, one each from

each group of the owners' and seamen's 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 contribu-

tions obtained from the owners of the ships whose associa-

tion 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 Captains of the ships engage the seamen.

The Board

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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 con-

ceived 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 seaman engaged. After

signing on, each seaman pays back the owners Re. 1 as his

contribution towards office expenses of the Calcutta Mari-

time 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 Presi-

dency Magistrate acquitted the accused of the charge but on

revision the High Court 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 to-

wards the expenses of the Joint Supply Office working under

the Calcutta Maritime Board. There was again a revision

petition taken to the High Court against this order of

acquittal and it was heard by the same learned Judge as

before. He differed from

288

the Chief Presidency Magistrate on all the material points

and sent the case back again for a fresh trial in a judgment

which contains findings 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

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it was ultimately spent for expenses of the running of the

Joint Supply Office and that a demand for payment would by

itself constitute the offence, whether the money was actual-

ly received or not.

It is against this interference in revision that the

present appeal was lodged before the Judicial Committee of

the Privy Council on the ground that the jurisdiction to

direct a retrial was so exercised in the case as to consti-

tute. an infringement of the essential principles of jus-

tice.

Before entering into a short discussion of the ques-

tion 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 pur-

pose, 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 engag-

ing a seaman to be entered on board any ship

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 an offence is

committed be liable to a fine which may extend to one hun-

dred rupees, and, if a licensed person, shall forfeit his

licence.

26. (1) A person shall not demand or receive directly 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 Lin-

ers' 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 this 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. 1 is their Own contribution and Re. 1 is

the contribution by the seaman which is deducted from his

wages. There is therefore no supply of a seaman within the

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meaning of section 25 of the Act. A number of seamen offer

themselves for employment and they are all gathered together

at a

290

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 direct-

ly or through its servants for the benefit of the owners and

for employment under them. The Calcutta Maritime Board of

which the accused is an honorary Joint Secretary is an

institution that was created in the end of 1947,' with the

knowledge, ii 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 ships. 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 say that the

seamen are supplied 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 alleged that it

resulted in 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 signs the agree-

ment 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. This 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

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Mr. 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 Maritime Board. Mr. Gold-

well of James Finlay & 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 with the engagement of the seamen.

There is also a finding of the Chief Presidency Magistrate,

which has not been set aside, that the allegation of the

complainant that the accused received Re. 1 from him prior

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.

Mr. Justice Sen says "I fully realise that, ordinarily

this Court ought not to interfere with orders of acquittal.

It should do so only on exceptional grounds." It is a matter

of some regret that this realization by him of the very.

limited nature of the revisional jurisdiction was not car-

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ried into 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

complainant against an order of acquittal, against which the

Government has a right of appeal under section417. It could

be exercised only in exceptional cases where the interests

of public justice require interference for the correction of

a manifest illegality, or the prevention of a gross miscar-

riage of justice. This jurisdiction is not ordinarily

invoked or used merely because the lower court has taken a

wrong view of the law or misappreciated the evidence

38

292

on record. 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

guilty 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 Magistrate is restored. The accused will

stand acquitted of the charge.

Order set aside.

Agent for the appellant: P.K. Chatterjee.

Agent for the respondent: 1. N. Shroff for P.K. Bose.