D STEPHENS Vs. NOSIBOLLA

JUDGEMENT

(1.) 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 Sen J. of the H. C. of Judicature at Fort William in Bengal, directing a retrial of the applt. D. Stephens, who had been acquitted by the Chief Presidency Mag. of contravening the provisions of S. 26, Merchant Shipping Act.

(2.) The facts that gave rise to this prosecution are correctly set out in the following two paras. which are quoted from the judgment of the learned Chief Presidency Mag. :

(3.) 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 S. 26, Merchant Shipping Act, and that he was, therefore, guilty of an offence within the meaning of sub cl.(2) of that section. The Chief Presidency Mag. acquitted the accused of the charge but on revision the H. C. at Calcutta directed a retrial, holding that the accused clearly contravened the provisions of S. 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 S. 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 Mag. 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 ship owners 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 revn. petn. taken to the H. C. against this order of acquittal and it was heard by the same learned Judge as before.He differed from the Chief Presidency Mag. 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 Mag. 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 S. 25 of the Act. The receipt of Re. 1 was a demand for remuneration within the meaning of S. 26, even if 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 actually received or not.