Emperor v. Mahadewappa Hanmantappa

Crump, J.:—

The accused held a licence under the Indian Explosives Act, 1884, to manufacture gunpowder. The fourth condition of that licence contains the following words:

“The explosive shall he manufactured in a tent or lightly constructed building exclusively appropriated for the purpose and separated from any dwelling house, highway, street, public thoroughfare or public place by the distance in the case of gunpowder of one hundred yards.”

The effect of this positive injunction no doubt is to forbid the manufacture of gunpowder otherwise than in accordance with this condition.

The accused lived in the village of Kerur and he constructed a building outside the village, which complied with this condition, and employed a woman named Bhimava to manufacture gunpowder there. Bhimava engaged one Sangava to assist her. On September 7, 1925, Bhimava went to this building with Sangava and took some sulphur, some saltpetre, and some charcoal, the three ingredients necessary for the manufacture of gunpowder. She and Sangava, for reasons which are not in my opinion clearly established, then went with these ingredients to the house of the accused in the village, and performed part of the process of manufacture there. On these facts the accused is charged with committing a breach of this condition of his licence. The question is whether that charge is sustainable. I am informed by the Government Pleader that the second and third heads of the charge, viz., of offences arising out of the death of Bhimava are not now pressed. Therefore, I am not concerned with the results of this failure to comply with the conditions of the licence. And the appeal is moreover confined to the breach of the condition which has already been set out. That there was a breach of this condition is clear. The question is whether the accused is criminally liable for an act done by Bhimava. It does not appear on the evidence or on the statement of the accused that he had ordered Bhimava not to manufacture gunpowder at any other place than the building specially constructed for the purpose. That he did not do so may be inferred from the fact that the two women went to the accused's own house for the purpose. The accused did not know that Bhimava was manufacturing gunpowder elsewhere than in the specially constructed building. Such is the finding of the Magistrate and I accept it for the purposes of this appeal.

In my opinion, two questions arise for determination. The first question is whether the penal clause is so drafted as to place upon the master criminal responsibility for the acts of his servant. The second question is whether the servant Bhimava was acting within the general scope of her employment. Upon the first question many cases have been cited but the conclusion to be drawn is, I think, that the question is one of construction and that in construing the statute regard must be had to its language, scope and object. That will be found laid down by Lord Russell, C.J in Coppen v. Moore (No. 2). The test suggested there is: “Did the Legislature intend having regard to the language, scope and object of the statute to fix criminal responsibility upon the master for acts done by his servant in the course of his employment although such acts were not authorized by the master”? The same principle may be deduced from the judgment of the same learned judge in Commissioners of Police v. Cartman. Whether there must be in any case personal knowledge of the licensed person depends primarily upon the language of the statute. Here there are no words which can be held to require such knowledge before the offence is complete. In a similar case (Mullins v. Collins) the statute under consideration prohibited the commission of a certain act by a licensed person. The act was committed by a servant. There were no words which required that the licensee should have knowledge of the commission of the act. Blackburn, J. said (p. 295): “If we hold that there must be a personal knowledge … we should make the enactment of no effect.” Similarly in Cundy v. Le Cocq Stephen, J. remarked (p. 209):—

“Our answer to the question put to us turns upon this, whether the words of the section under which the conviction took place, taken in connection with the general scheme of the Act, should he read as constituting an offence only where the licensed person knows or has means of knowing that the person served with intoxicating liquor is drunk, or whether the offence is complete where no such knowledge is shown. I am of opinion that the words of the section amount to an absolute prohibition of the sale of liquor to a drunken person.”

Here too we have an absolute prohibition of the act done by the servant. Here too if we hold that there must be personal knowledge we make the enactment of no effect. The scope of the statute is to regulate the manufacture of explosives, the object, or at least one of the objects, to ensure the safety of the public. Similar considerations were given effect to by this Court in Queen-Empress v. Tyab Alli, and it was held that where a statute prohibited the sale of arms to any person not legally authorized to possess the same, and a servant did so sell arms, the master could not defend himself by a plea of want of knowledge. The principles established by these decisions appear to me to apply here and though I have referred to all the cases which have been cited I do not find it necessary to discuss any others. There is, in my opinion, a distinction between those cases where it is sought to apply a penal statute, and those cases where a third party seeks relief by way of damages against the master for the negligent act of the servant.

If then Bhimava was acting within the general scope of her employment the accused is, in my opinion, liable to be punished for her act. I feel no doubt that she was so acting. What she did was in furtherance of her master's business, and not in pursuance of any purpose of her own. It was argued that the scope of her employment was to act according to the conditions of the licence, and that therefore any breach by her of those conditions must be an act outside that scope. Enough has been said to show that this argument cannot prevail. Were it sound it might have been a successful defence in each and every one of the cases which I have cited. She was employed to manufacture gunpowder for her master. That was the general scope of her employment, and the breach of the condition of the licence was committed while she was so engaged. The case of Phelon & Moore, Limited v. Keel is plainly distinguishable. Here Bhimava did not take the materials for her private ends and for a purpose unknown to the master. The case is indeed against accused in one respect for it recognizes in the words of Avory, J. at p. 170 that:—

“The Legislature may, and sometimes does, impose an absolute duty on a person, a breach of which duty is made a criminal offence even in the absence of mens rea.”

On these grounds I agree with the view expressed by Fawcett, J. I must, therefore, set aside the order of acquittal and find the accused guilty of committing a breach of condition No. 4 of the conditions of the licence and of thus having committed an offence under rule 138 of the rules made under section 5 of the Indian Explosives Act, 1884. Upon the question of penalty, I would remark that in such cases the employer's ignorance has often been held to be a mitigating circumstance, that the accused is a petty grocer in a remote village and presumably totally unable to pay a heavy fine. Further, it is to be remembered that these proceedings have lasted over a year and have been carried up to the High Court. I would impose a fine of Rs. 150.

Appeal allowed.

R.R