(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. :
"The owners of the ships have an organisation known as the Calcutta Liners' Conference. The seamen have an organisation known 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 Calcutta 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' Conference (the owners) and the Joint Supply Office (the seamen). At the present moment the Govt. of India have two 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 contributions obtained from the owners of the ships whose assocn. 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 seaman 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 endeavours to lay down and 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 conceived 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 Maritime Board. None of the facts stated above was contested for the complainant."
(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.