. 491-492._

free the latter; except under section 490, where ill-treatment is specified as an excuse for non-performance of the contract. Looking, however, at the English decisions, it may be presumed that there could be no conviction under these sections if the defendant left his service under a bona fide belief that the law allowed him to do so; but, then, it must be most distinctly shewn that the omission was in pursuance of his supposed right, and not merely that he might possibly have acted under such a belief. (See Willett vs. Boote, 30 Law Journal, N.S. Mag. Cases, 6.) Such a case might arise where there were continuous breaches of contract on the part of the master, such as non-payment of stipulated remuneration, and the servant imagined that the law thereupon allowed him to treat the contract as rescinded. This case would, however, require much careful consideration in consequence of the words "or other reasonable cause" being omitted from these two sections. 5 M. J. 41.

Voluntarily omits.-It has been remarked above that the exception noted in the preceding section as to illness or ill-treatment is omitted in this section. Nevertheless in order to procure a conviction under this section, a criminal intent in omiting to do what he is bound by law to do must be proved, there must be an intention to break the law or neglect the duty required by this section, and evidence should be recorded to prove that there was no reasonable cause for the voluntary omission herein made penal; e.g., a dhai hired on a monthly salary to supply lacteal sustentation to an infant voluntarily, and without any reasonable cause runs away, she can be punished under this section.

(M. of First or

Second Class.]

place to which the ser

master's expense.

[Uncog. Bailable.]

[Summons.]

*492. Whoever, being bound by lawful contract in Breach of a contract writing to work for another person (11) as to serve at a distant an artificer, workman, or labourer, for a vant is conveyed at the period of not more than three years, at any place within British India (15) to which by virtue of the contract he has been or is to be conveyed at the expense of such other, voluntarily (39) deserts the service of that other during the continuance of his contract, or without reasonable cause refuses to perform the service. which he has contracted to perform, such service being reasonable and proper service, shall be punished with imprisonment of either description (53) for a term not exceeding one month, or with fine not exceeding double the amount of such expense, or with both; unless the em

ployer has ill-treated him or neglected to perform the contract on his part.

Artificers.-Persons who are masters of their arts, and whose employment consists chiefly in manual labour. 5 Geo. IV, chap. 97, and 6 Geo. IV, chap. 135. W. L. L., p. 90.

Labourers.-Servants in husbandry or manufactures, not living intra mania. W. L. L., p. 525. Vide note on Section 117, P. C.

Lawful contract in writing.-The contract referred to in this section. must be in writing. It must relate to services to be performed in a place other than at which the servant is living when the contract is entered into, and to which he "is to be, or has been, conveyed at the expense of the master." I apprehend the words "in writing" should govern the word "contract" or "contracted" throughout the section. The writing, therefore, should show the nature of the employment, the names of the parties intended to be bound-both of the employer and employed-the place from which the servant is to be, or has been, conveyed; the place where work is to be performed; the rate of wages or other consideration which the servant is to receive, and generally what each party undertakes to perform in pursuance of the contract. Probably it is not necessary that the "contract in writing" should be contained in one writing if in a number of documents (e.g., letters between the parties), on the face of them, connected in their sense, the whole contract shall appear. S. M. and S. App. xxxvi.

A labourer once punished under this section cannot receive a second punishment on his refusal to complete the same contract, and on his release from first term of imprisonment.-Letter No. 611, 1863, vol. II., p. 24, R. J. P. J. In England, in re Unwin vs. Clarke quoted under this section, the Contract of Service has been held not to be terminated by conviction and punishment.

To work as.-See Act XIII of 1859. That Act does not apply to contracts for a domestic or personal service, but to contracts to serve as artificer, workman, or labourer. (12 W. R., 12). Coolies in Assam, who have received advances in contemplation of work to be done, may be proceeded against under Act XIII of 1859. Queen vs. Gaub Gorah (8 W. R., 6). Act XIII of 1859 relates to fraudulent breaches of contract, and does not apply where an advance has not only been worked off by a labourer, but an actual balance is due to him. Taradoss Bhuttacharjee v8. Bhaloo Sheikh (8 W. R., 69.) There is a slight difference between this and the two preceding sections. In those sections, the offence consists in voluntary omitting to do that which the accused has contracted to do, but in this section the words "without reasonable cause" are introduced.

Sec. 492.

INDIAN PENAL CODE.

429

The provisions of Act XIII of 1859 (an Act for the punishment of breaches of contract by artificers, workmen, and labourers) have been extended to the station of Almorah in the Kumaon district. The Senior Assistant Commissioner of Kumaon has been authorized to exercise the powers vested in a Magistrate of Police under that Act.

Voluntarily deserts the service.—If the omission on the part of the servant to carry out his contract arose from an accident, or superior force, or mistake, or the fraud of a person other than himself, it would not be voluntary, and he would be relieved from criminal responsibility. In Section 492 the words "or without reasonable cause are introduced, whereas in Section 490 no excuse but illness or ill-treatment is admitted, and in Section 491 there is no exception to the duty of fulfilling the contract specified. Doubtless this arose from the fact that the urgency was greater under these sections than under that, and, therefore, no chance should be allowed to the servants to manufacture a 66 reasonable cause." A servant who, having made a contract to serve during a voyage, refused to go on board during a hurricane, his master being desirous of going, or one who refused to pass through or remain a reasonable time in a district where cholera was raging, would be liable. If, however, the master knew of these facts before or when he made the contract, and concealed them from the servant, it is a very great question whether the contract would not be entirely vitiated and the servant be at liberty to go wherever he pleased. A question might also arise whether a servant would be liable who ran away during a journey on the approach of a tiger, unless the contract was expressly to guard as well as conduct, for self-preservation is the first law of nature; besides, the fact of the servant standing his ground might result in him being eaten up, and thus the master would be permanently, instead of temporarily, deprived of his services. 5 M. J. 41.

In re Unwin vs. Clarke, I. L. R. Q. B. 417, a workman entered into a .contract with a master to serve him for the term of two years: he absented himself during the continuance of the contract from his master's service, and under 4 Geo. iv, c. 34, sec. 3, he was summoned before Justices, convicted and committed. After the imprisonment had expired, and while the term of the contract was still unexpired, he refused to return to his master's service, and was again summoned before Justices, when he stated that he considered the contract determined by the commitment; the Justices found that he bona fide believed that he could not be compelled to return to his employment, and dismissed the summons. Held by Blackburn and Mellor, JJ., that, although the servant had not returned to the service, yet as the contract continued, he had been guilty of a fresh offence, for which, notwithstanding his conviction and imprisonment, he could be again convicted, and that his bona fide belief that he could not

. XIX

.

be compelled to return to his employment, did not constitute a lawful excuse for his absence.

The Section (4 Geo. iv, c. 34, sec. 3) under which the prisoner was convicted, is a peculiar one. It enacts that "If any servant, &c., shall contract with any person to serve him, and shall not enter into his service, according to his contract (such contract being in writing and signed by the parties), or having entered into such service shall absent himself from his service before the terms of his contract (whether such contract shall be in writing or not) shall be completed, or neglect to fulfil the same, or be guilty of any other misconduct or misdemeanour in the execution thereof, then it shall be lawful for any Justice of the Peace, on proof before him, to commit every such person to the House of Correction for a reasonable time, not exceeding three calendar months, and to abate a proportionable part of his wages for and during such period as he shall be so confined, or in lieu thereof, to punish the offender by abating the whole or any part of his wages, or to discharge him from his contract, which discharge shall be given under the hand and seal of the Justice gratis." The Justices had not discharged the contract which was therefore held to be continuing.

Shee, J., said:-"If he had returned to the service, and then left it again, he might have been punished again; but having originally declared, he would never come back, I think his non-return was not a fresh absence, and that he was not punishable a second time. The weight of authority is against this view, but I agree with Pollock, C. B., and Mellor, B., in ex-parte Baker, 26, L. J. M. C. 155; 2 H. and N., 219. A man ought not to be convicted of a purely statutable misdemeanour, unless he has the mens rea. Here the respondent really believed he was justified in not returning, and acted bona fide, and, therefore, ought not to have been convicted. As my brothers are of a different opinion, and the weight of authority is in favour of the appellants, I do not wish to formally differ from the judgment of the Court." Unwin vs. Clarke is very distinguishable from any case likely to arise under Section 492 of the Penal Code unqualified by any other enactment.

In a charge under this section the views expressed by Shee, J., in Unwin vs. Clarke, would probably be adopted and acted upon, wherever the case did not come under some other special law. For example, by Section 41, Act vi of 1865, B.C., the convictien of a labourer for breach of his contract does not operate as a release from the contract, but the labourer is after the completion of his sentence to be handed over to his employer, and by Section 42 of the same Act, the term of the contract "shall extend to such further period as shall be equivalent to the aggregate amount of the imprisonments and unlawful absences endorsed on the contract."

. XX

. 492

Supposing that a return to service by the servant after conviction would be a commencement of a fresh service, I do not suppose that a new contract in writing would be necessary. The old contract would govern the renewed service under it; and would be good for so long as it was originally intended to last according to its terms.

It is to be observed that by the words of the section, the work must be performed "at any place within British India," but nothing is said about the place from which the servant is to be conveyed. A question, therefore, arises if "an artificer, workman, or labourer" "has been conveyed," at his employer's expense, say, from England to work in Bengal, and, after arriving in Bengal, omits to do his work, can he be convicted under this section? I believe that he could; although for any breach of the contract committed beyond the territories to which the Penal Code applies, (e. g., refusing or omitting to quit England,) no criminal proceedings could be taken against him under it.

A servant charged under this section might plead non-payment of wages as a "reasonable cause" for not performing his part of the contract. In Vittaba Malhari vs. Corfield (3 Bo H. C., App. 25) Jackson, J., said: "Was it not a sufficient answer for the plaintiff, (i.e., the servant) to make to the charge of leaving his employment without warning, that he had not been paid his wages due to him? A servant is not bound to serve unless he is paid. To hold otherwise would be to reduce servants to the condition of slaves, and the regulation (Rule, Reg. & Order 1 of 1814, relating to Bombay) is careful in this respect to protect servants by inserting the words 'unless it be for some just and reasonable cause.' Labourers under Act III of 1863 (B.C.) and Act VI, 1865 (B.C.) would be punishable under this section of breach of the written contract entered into by them, if such contract did not extend over three years. S. M. & S. App., xxxvi, xxxvii.

I

CHAPTER XX.

OF OFFENCES RELATING TO MARRIAGE.

Section 5, Act VI of 1864 provides for the whipping of juvenile (Section 83, P. C.) offenders convicted of offences specified in the sections marked* in this chapter. Juveniles may be punished with whipping only in lieu of any other punishment, but whipping may be inflicted for first or any other offence, and is to be administered in the way of discipline, with a light rattan. (Para. 6, Circular No. 2, dated 8th April, 1864. No female, nor any person sentenced to death or penal servitude, or imprisonment for more than five years, shall be whipped. Section 7, Act VI of 1864.