PETITIONER: MOBARIK ALI AHMED Vs. RESPONDENT: THE STATE OF BOMBAY DATE OF JUDGMENT: 06/09/1957 BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. IMAM, SYED JAFFER MENON, P. GOVINDA CITATION: 1957 AIR 857 1958 SCR 328 ACT: Criminal Law-Foreigner-Resident outside India-Offence committed in lndia--Conviction by Indian Court under the lndian Penal Code-Legality-Offendey extradited and brought to India Arrest for a fresh offence and conviction-Validity- Charge under s. 420 read with s. 34 Of the Indian Penal Code-Conviction under s. 420 alone-Legality' Extradition Act, 1870 33 & 34 Vict. C. 52),s. 3(2)-Fugitive Offenders Act, 1881, (44 & 45 Vict. c. 69). s. 8- Indian Penal Code (Act XLV of 1860), ss. 2, 34, 420. HEADNOTE: The appellant, a Pakistani national doing business in Karachi, was convicted of the offence of cheating under s. 420 Of the Indian Penal Code. The prosecution case was that with a dishonest intention he made false representations to the complainant at Bombay through letters, telegrams and telephone talks, that he had ready stock of rice, that he had reserved shipping space and on receipt of money he would be in a position to ship the rice forthwith, and that the complainant who was anxious to import rice urgently sent the amount to the appellant on the belief of such representations. It was contended for the appellant that the conviction was bad on the grounds inter alia (1) that he was a Pakistani national who, during the entire period of the commission of the offence, never stepped into India and was only at Karachi and that he could not be tried by an Indian Court nor be punishable under the Indian Penal Code, (2) that lie 329 was brought over from England, where he happened to be, by virtue of extradition proceedings in connection with another offence the trial for which was then pending in the Sessions Court at Bombay, and that he could not be validly tried and convicted for a different offence like the present, and (3) that the charge being one under s. 42o read with s. 34 of the Indian Penal Code for alleged conjoint acts of himself along with three others and those three not being before the Court, and himself not having been in Bombay at the time, the conviction was unsustainable. Held: (1) that, on the facts, all the ingredients constituting the offence of cheating under S. 420 Of the Indian Penal Code having occurred in Bombay, the offence was committed there and that, though the appellant was not corporeally present in India at the time of the commission of the offence, his conviction under the Indian Penal Code was valid in view of the terms of s. 2 of the Code; (2) that, as the appellant was surrendered to the Indian authorities under the Fugitive Offenders Act, 1881, and there was no provision in that Act preventing arrest in India for the purpose of a trial in respect of a fresh offence, his conviction following upon his trial was valid. H. N. Rishbud v. The State of Delhi, (1955) 1 S.C. R. II50, relied on. (3) that the conviction of the appellant of the offence of S. 420 was valid, though the charge was one under S. 420 read with s. 34, as the actual findings in the case could support a conviction under S. 420 itself. Willie (William Slaney) v. The State of Madhya Pradesh, (1955) 2 S.C.R. II40, relied on. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 200 of
1956.
Appeal by special leave from the judgment and order dated
July 20, 1954, of the Bombay High Court in Criminal Appeal
No. 1596 of 1953, arising out of the judgment and order
dated September 23, 1953, of the Court of the Additional
Chief Presidency Magistrate, 3rd Court, Esplanade, Bombay,
in Case No. 31/W of 1953.
A. P. Gandhi and J. B. Dadachanji, for the appellant.
H. J. Umrigar and R. H. Dhebar, for the respondent.
1957. September 6. The following Judgment of the Court was
delivered by
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JAGANNADHADAS J.-This is an appeal by special leave. The
appellant before us was convicted by the learned Presidency
Magistrate, Third Court, Esplanade, Bombay, for the offence
of cheating under s. 420 read with s. 34 of the Indian Penal
Code on three counts of cheating, viz., the first relating
to a sum of Rs. 81,000, the second relating to a sum of Rs.
2,30,000, and the third relating to a sum of Rs. 2,36,900.
He was sentenced by-the learned Magistrate to two years
rigorous imprisonment and a fine of Rs. 1,000 on the first
count, to twenty-two months rigorous imprisonment and a fine
of Rs. 1,000 on the second count, and two months rigorous
imprisonment on the third count. It was directed that the
substantive sentences only on the second and third counts
are to run concurrently.
The prosecution was initiated on a private complaint filed
by one Louis Anton Cornea on June 30, 1952, against four
persons of whom the appellant was designated therein as the
first accused and one Santram as the fourth accused and two
other persons, A. A. Rowji and S. A. Rowji, as second and
third accused respectively. Bailable warrants were issued
against all the four by the learned Magistrate but it
appears that warrants could not be executed against accused
2, 3 and 4. They were reported as absconding. The trial was
accordingly separated as against them and proceeded only as
against (the first accused) the appellant herein. The
convictions and sentences have been confirmed on appeal by
the High Court at Bombay.
The complainant is a businessman from Goa and was the
director of a firm in Goa which was trading in the name of
Colonial Limitada doing business in import and export. At
the relevant time there was severe scarcity of rice in Goa.
The complainant was accordingly anxious to import rice
urgently into Goa. He got into touch with a friend of his
by name Rosario Carvalho in Bombay who was doing business as
a commission agent. Carvalho in his turn got into touch
with one Jasawalla who was also doing business of commission
agent at Bombay in the name of Universal Supply Corporation.
This Jasawalla was previously
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in correspondence with the appellant about business in rice.
The appellant was at the time in Karachi and was doing
business in the name of Atlas Industrial and Trading
Corporation and also in the name of Ifthiar Ahmed & Co. The
telegraphic address of the complainant was Colodingco and
that of the appellant was Ifthy. As a result of exchange of
telegrams, letters and telephone messages between Jasawalla
and the appellant on one side, Jasawalla and the complainant
on the other, followed up by direct contacts between the
appellant and the complainant through telephone, telegrams
and letters, a contract was brought about for purchase, by
the complainant from the appellant, of 1,200 tons of rice at
the rate of pound 51 per ton, to be shipped from Karachi to
Goa. The contract appears originally to have been for
payment of the price in sterling at Karachi. But it is the
prosecution case (which has been accepted by both the courts
below) that a subsequent arrangement was arrived at between
the parties by which the payment was to be made in Bombay in
Indian currency, in view of the difficulties experienced in
opening a letter of credit in a Bank at Karachi through the
Portuguese Bank at Goa. It is also the prosecution case,
which has been accepted, that the understanding was that 25%
of the price was to be paid as advance by the complainant to
Jasawalla as the agent of the appellant for this purpose and
that on receiving intimation thereof the appellant was to
ship the rice and that the balance of the purchase money was
to be paid on presentation of the shipping documents. It
appears that at a later stage the quantity of rice to be
supplied was raised to 2,000 tons and advance to be paid to
50% of the total stipulated price. It is also the
prosecution case that the appellant represented at various
stages by telephone talks, telegrams, and letters, to
Jasawalla as well as to the complainant directly that he had
adequate stock of rice and that he had reserved shipping
space in certain steamers which were about to leave for Goa
and that he was in a position to ship the rice on being
satisfied that the requisite advance was paid. It is in
evidence that on receiving such assurances, the complainant
43
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paid moneys as shown below to Jasawalla and obtained
receipts from him, purporting to be the agent of the
appellant.
1. On July 23, 1951 …Rs. 81,000
2. On August 28, 1951 …Rs. 2,30,000
3. On August 29, 1951 … Rs. 2,36,900
All these amounts are held to have been received by the
appellant in due course. It is admitted, however., that no
rice was in fact shipped to the complainant and the amounts
have not been returned back to the complainant. The defence
of the appellant is to the effect that the amounts were not
in fact paid to any person who was his agent and not in fact
received by him at all and that he was unable to supply the
rice as the complainant did not comply with the terms of the
contract by opening a letter of credit at Karachi or paying
him in Pakistani currency. This defence has not been
accepted and the appellant has been found guilty as charged
by the courts below. He was therefore convicted and
sentenced as above stated.
It is necessary to set out somewhat in detail the essential
facts held to have been proved by the courts below to
appreciate the legal contentions that have been urged before
us. As previously stated, the complainant got into touch
with his friend Carvalho of Bombay to help him in getting
rice for consumption in Goa and Carvalho in turn contacted
Jasawalla for the purpose. Before that time, Jasawalla, in
the course of his usual business, had received a letter, Ex.
0, dated June 5, 1951, from the appellant offering that he
would be prepared to do business in rice if a letter of
credit is opened or cash payment is made in Karachi.
Carvalho came to know of this from Jasawalla and informed
the complainant. Jasawalla also wrote a letter to the
complainant. The complainant sent a telegram showing his
willingness to open credit, if 1,200 tons of rice could be
shipped to Goa. Jasawalla wrote a letter, Ex. P, dated
June 6, 1951, to the appellant quoting the telegram of the
complainant and asking for an offer. The appellant by his
letter dated June 10 to Jasawalla, offered to supply as
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much rice as he wanted and demanded 25% cash payment as
advance. After some tripartite correspondence, the
appellant by his letter dated June 26, agreed to accept
money in Bombay, at the price of pound 51 per ton of rice.
Jasawalla by telegram dated July 5, 1931, informed the
appellant that the Goa party accepted the 25% arrangement.
The appellant by a letter dated July 7, accepted the offer
but wanted 50% deposit and gave time till the 10th,
suggesting that since the rice was scarce the deal must be
finished at once. Jasawalla intimated this to the
complainant and asked him to start at once with money and
informed him that if there was delay the party at the other
end would claim damages. The appellant did not get any
information for the next few days. He accordingly sent one
Santram (accused 4 in the complaint) to Bombay as his agent
for discussing the matter in question and authorising him to
fix the deal on the spot. Santram appears to have fixed the
bargain for shipping 1,200 tons of rice on the complainant
paying an advance sum of Rs. 1,50,000 at Bombay as 25%
deposit towards the price of the said 1,200 tons of rice.
On receipt of this information the appellant wrote a letter
dated July 12, to Jasawalla wherein he confirmed the
arrangement arrived at by Santram. Jasawalla was thereupon
taken by Santram to accused 2 and 3. They were introduced to
him as the agents of the appellant who were to receive the
moneys in this transaction on appellant’s behalf At the same
time the appellant was also writing letters to Jasawalla
which seem to indicate that he was trying to shift his
position by asking for 50% as advance deposit. For a few
days thereafter the complainant did not turn up at Bombay
with the funds and the appellant by his telegram dated July
16, asked Jasawalla why there is no further information
about the transaction. By a telegram dated July 17, he
informed Jasawalla that S. S. Olinda was sailing in a few
days and that it would be too late to ship the rice and that
the matter should be hurried up. On July 18, the complainant
sent a telegram to Jasawalla informing him that he was
coming with
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funds and that if the rice was not shipped it may be shipped
by S.S. Olinda which was about to start on July 21. The
appellant also sent a telegram to Jasawalla on July 18,
asking why the deal was not coming on and that he had
already reserved space by the steamer of the 21st. On July
19 again Jasawalla received a telegram from the appellant
informing him definitely that space was reserved in the
steamer. The complainant also sent a telegram to Jasawalla
on the same day informing him that he was coming and that at
least 500 tons must be shipped at once. The complainant
-arrived at Bombay on July 20. The indent, Ex. A, was
prepared in triplicate and signed by the complainant on the
same day. The complainant brought cheques and drafts to the
tune of Rs. 81,000. It would appear that at this stage the
complainant was asking that, he should be allowed (for the
time being) to deposit only Rs. 50,000 as deposit for a
shipment of 500 tons. But appellant insisted that Rs.
1,50,000 should be paid as advance for 1,200 tons. On or
about July 21, the appellant sent a letter to Jasawalla with
a pro-forma receipt for Rs. 1,50,000 signed by him to be
made use of by Jasawalla in whatever manner he thought
proper in connection with the transaction then under way.
The said receipt was shown to the complainant who Was shown
also the other correspondence that was received from the
appellant. Jasawalla by his letter dated July 22, to the
appellant confirmed the shipment of the deal of 1,200 tons
of rice and intimated that some portion of the money was
immediately ready and some portion would be brought in a day
or two, totalling over Rs. 80,000 and that the balance would
be paid after hearing about shipment of 1,200 tons. This
was agreed to by the appellant. On July 23, Jasawalla
telephoned to the appellant that he was going to pay the
money to accused 2 as directed by the appellant. In the
afternoon of that very day the parties went to the office of
accused 2 and there was again a further conversation on the
phone with the appellant who, on the phone, conveyed the
assurance that payment to accused 2 would be as good as
payment to himself.
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The complainant and Carvalho were hearing both the morning
and afternoon talks between the appellant and Jasawalla, on
a second line. Thereupon the complainant paid the sum of
Rs. 81,000 to Jasawalla who passed a receipt (Ex. B)
therefor on behalf of the appellant and the said amount was
passed on to accused 2. The fact of this payment was
intimated to the appellant by telephone as well as by a
telegram. A letter was also written on July 24 to the
appellant referring to the telephone calls and telegram and
informing him that the amount was paid. He was also asked
therein to ship the rice at once promising that the balance
will be paid in a week. On July 23 itself the appellant
sent a telegram saying that he had received the messages and
was trying to book 1,000 tons. According to the prosecution
case the appellant having received the sum of Rs. 81,000 as
above, changed his front from July 24, 1951. The facts held
to have been proved in respect of this change of front may
now be stated.
On July 24, 1951, the appellant sent to Jasawalla a telegram
mentioning difficulties created by the Exchange Controller
in shipping the goods. When Jasawalla conveyed his protest
and insisted upon the shipping of the goods at once, the
appellant sent a telegram on July 25, informing him that the
difficulties were of a minor character and that the space
for shipping was already booked. Jasawalla by his telegram
of the same date asked for confirmation of loading of 1,200
tons by S. S. Olinda and requested him that if the full
quantity could not be loaded, a portion thereof might be
sent immediately. The appellant by his letter dated July
26, acknowledged Jasawalla’s letter dated 23rd (informing
him about the payment of Rs. 81,000) and intimated that the
rice would be shipped by the next steamer S. S. Umaria
sailing for Malaya and that the said steamer can touch Goa
if the quantity of rice to be shipped is raised to 2,000
tons. By a letter dated July 26, Jasawalla protested
against the new condition. The complainant sent a letter
dated July 27, to Jasawalla asking whether the rice was
shipped by S. S. Olinda
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or not. On July 27, the appellant sent a telegram to
Jasawalla asking for bank-guarantee (for payment of
balance).. It does not appear that any question of bank-
guarantee was raised in the correspondence between the
parties, after Santram (accused 4) fixed up the deal on the
footing of payment of advance of Rs. 1,50,000, in cash at
Bombay by way of 25% deposit. On receiving this letter
raising the question of bank-guarantee, Jasawalla wrote back
on the 27th to the appellant about the change of front and
charging him with cheating and not fulfilling his part of
the contract after receiving the money. By a letter dated
July 30 and also a telegram of the same date the appellant
replied to Jasawalla wherein he promised to send the rice by
S. S. Umaria and also threatened to break off negotiations
if the parties bad no confidence in him. Jasawalla
thereupon asked the appellant by telegram to fix the sailing
date of S. S. Umaria and inform him. The appellant wrote
back on August 1, admitting receipt of letters from
Jasawalla and attempting to pacify him. Jasawalla replied
thanking him and asked for a clear date of the sailing of S.
S. Umaria. By that time Jasawalla had made enquiries with
Mackinons & Mackenzie (shipping agents) and was informed
that no shipping space had been reserved by the appellant
and found the statement of the appellant in this behalf to
be false. Jasawalla sent copies of this correspondence
between him and the appellant to the complainant. That
correspondence indicated the appellant’s position to be that
the rice would be shipped by S. S. Umaria only if the load
could be increased to 2,000 tons and that the appellant
stated that he got the sailing of S. S. Umaria delayed by
two days for the purpose. The complainant thereupon
informed Jasawalla that he was prepared to accept the new
deal for 2,000 tons. Jasawalla by his telegram dated August
2, to the appellant confirmed this new arrangement and by
another telegram dated August 3, asked the appellant to
hurry up with the shipment. Thereafter the appellant raised
a fresh matter. On August 6, the appellant sent a direct
telegram to the complainant
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and asked him to request the portuguese Pro-Consul at
Karachi to obtain exchange-guarantee. Between August 7 and
12, several letters and telegrams passed between the
complainant and Jasawalla on the one hand and the appellant
on the other. As a result of efforts made in this interval,
it appears that the Pro. Consul, Mr. Alphonso, was prepared
to give the exchange-guarantee of the State Bank of Pakistan
for payment in sterling of the price of rice. The appellant
then by his letter dated August 13, informed Jasawalla that
the State Bank was not insisting on exchange guarantee but
that it would be sufficient if a certificate was issued by
the Portuguese authority that the rice was required for
replenishing the ration shops in Goa. A similar letter was
also written by the appellant on August 14, to the
complainant. Thereupon the complainant and Jasawalla
approached the concerned authority at Goa, viz., one Mr.
Campos, the Trade Agent to the Portuguese Government. Mr.
Campos thereupon sent telegrams on August 16, to the State
Bank of Pakistan, to the Pro-Consul, Mr. Alphonso, and to
the appellant certifying that rice was required for
replenishing the ration shops in Goa.
After this there was a further change of tactics by the
appellant. By a telegram dated August 20, 1951, the
appellant informed the complainant that the papers before
the Government were ready and that he had done his best but
that payment must be made. In reply the complainant sent a
telegram to the appellant on the same date stating that he
did not understand the contents of his telegram and promised
to send the balance on loading. The complainant also
informed Jasawalla about these telegrams exchanged. between
him and the appellant. This was followed up by some further
correspondence between the parties on August 22. The
appellant sent telegrams both to the complainant and to
Jasawalla demanding 90% deposit as advance and threatened to
break off if it was not complied with. Thereupon Jasawalla
sent a telegram; on the 22nd to the complainant to come to
Bombay.’ He informed the appellant the same day that the
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complainant was coming down to Bombay to arrange ‘for 50%
deposit and asked the appellant to start loading. On the
24th he wrote also a letter to the appellant to the effect
that the complainant would pay 50% advance minus the amount
already paid and informed him that the complainant would fly
to Karachi to supervise the loading. The appellant
thereupon sent a telegram dated the 25th informing Jasawalla
that everything was ready but hinted about the opening of a
letter of credit. Again on August 27, the appellant sent a
telegram to Jasawalla that stocks could not be released
unless the arrangement was fulfilled, i.e., 90% amount was
paid. The complainant came to Bombay with drafts and
cheques to the tune of about Rs. 4,75,000 and contacted
Jasawalla. He contacted also the appellant on phone. He
paid the sum of Rs. 2,30,000 on August 28, 1951, to
Jasawalla who passed a receipt, Ex. F, therefor, on behalf
of the appellant. On August 29, the complainant paid
another sum of Rs. 2,36,900 to Jasawalla who passed a,
receipt, Ex. G, therefor, on behalf of the appellant. It
is the case of the prosecution that both these were also
passed on to the second accused and through him to the
appellant and that the appellant acknowledged receipt of
these amounts in his correspondence and that case has been
also accepted. On the 29th itself. the appellant sent a
telegram to Jasawalla as follows:
“Part consignment received, rest tomorrow, Pentakota for the
1st certain goods required alongside. ”
on receiving this telegram Jasawalla informed him by a
telegram dated August 31, that he was shocked that no space
was reserved, though everything had been done on his side.
The appellant sent a reply by telegram dated September 1,
1951, protesting against the language used by Jasawalla in
the telegram and informed him that space was reserved but
the Company could not wait as the goods could not be
shipped. On September 5, the appellant informed Jasawalla
by a letter that space was reserved by S.S. Pentakota and
that everything was ready for shipment. Meanwhile the
complainant feeling very nervous and anxious about the
fulfilment of the transaction proceeded in
339
person to Karachi on September 4. According to the
complainant he stayed at Karachi for about two weeks. He
was shown some godowns containing rice bags suggesting that
they belonged to the appellant and were ready for shipments
But he was not afforded any opportunity for verifying that
the stock was intended for shipment in respect of his
transaction. The complainant went to Karachi on a Visa for
three months. But after a stay of less than two weeks he
was served with a quit-order from the Pakistan Government on
September 18, and was bundled out of Karachi. It is the
complainant’s impression that this was manoeuvred by the
appellant. On his return back, correspondence was again
resumed between the appellant and the complainant. By a
letter dated September 21, the appellant promised to ship
the goods by S.S. Ismalia which would not be sailing in
September but would leave on October 3. On September 23, the
appellant sent another letter stating that S.S. Ismalia was
arriving-on October 3 and not on September 26. On October
3, the appellant wrote another letter to the complainant
informing him that S.S. Ismalia was not available. The
complainant thereafter sent a telegram to the appellant
dated September 29, calling upon him to ship the goods by
S.S. Shahjehan if S.S. Ismalia was not available. The
complainant by a further letter dated October 1, called upon
the appellant to ship the rice at once. By a telegram dated
October 2, the appellant informed the complainant that S.S.
Shahjeban was arriving the, next day and that he would wire
the position. By his telegram dated the 3rd, he informed
the complainant that the loading had commenced. On October
6, the complainant received another telegram from the
appellant that he would not ship per S.S. Shahjehan until
demands in his letter dated September 29 are complied with.
It is the complainant’s case that no such letter was ever
received by him., Jasawalla also informed the appellant that
no letter dated September 29 was received. By telegram
dated October 8, 1951, Jasawalla called upon the appellant
to refund the money and cancel the contract. On October 12,
the appellant sent a telegram 44
340
which conveyed a suggestion that he would ship rice by S.S.
Shahjehan arriving on October 19, instead of October 9.
There were some further telegrams exchanged. Finally the
complainant sent a telegram on October 26, calling upon the
appellant to ship rice immediately or refund the money.
This was followed by further exchange of correspondence
which ultimately resulted in a letter by the appellant to
the complainant dated November 17, denying all the
allegations made against him.
The above facts were held to have been proved by the courts
below on the basis of a good. deal of correspondence between
the parties consisting of telegrams and letters and
supported by the oral evidence mainly of three persons,
viz., (1) the complainant, (2) Jasawalla, and (3) an ex-
employee of the appellant at Karachi by name Sequeria. All
this evidence has been accepted by the courts below after
full consideration of the various comments and criticisms
against acceptability of the same.
In a case of this kind a question may well arise at the
outset whether the evidence discloses only a breach of civil
liability or a criminal offence. That of course would
depend upon whether the complainant in parting with his
money to the tune of about Rs. 5 1/2 lakhs acted on the
representations of the appellant and in belief of the truth
thereof and whether those representations, when made were in
fact false to the knowledge of the appellant and whether the
appellant had a dishonest intention from the outset. Both
the courts below have found these facts specifically against
the appellant in categorical terms. These being questions
of fact are no longer open to challenge in this Court before
us in an appeal on special leave.
Learned counsel for the appellant accordingly raised before
us the following contentions:
1.The appellant is a Pakistani national, who, during the
entire period of the commission of the offence never stepped
into India and was only at Karachi. Hence he committed no
offence punishable under the Indian Penal Code and cannot be
tried by an Indian Court.
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2.The appellant was brought over from England, where he
happened to be, by virtue of extradition proceedings in
connection with another offence, the’ trial for which was
then pending in the Sessions Court at Bombay and accordingly
he could not be validly tried and convicted for a different
offence like the present.
3. The various telegrams and letters relied upon by the
prosecution were held to have been proved on legally
inadmissible material.
4. The charge being under s. 420 read with s. 34 of the
Indian Penal Code for alleged conjoint acts of the appellant
along with the persons designated as accused 2, 3 and 4, in
the complaint and the said three accused not being before
the Court and the appellant not having been in Bombay at the
time, the conviction is unsustainable.
We have heard elaborate arguments on all these matters but
have felt satisfied that there is no substance in
contentions 2, 3 and 4 above. Accordingly we did not call
upon the counsel for the State to reply to the same. It is,
therefore, unnecessary to deal with them at any length.
They will be disposed of in the first instance.
To understand contention 3, it is convenient to take the
letters and telegrams separately. The letters which have
been relied on for the prosecution fall under the following
categories.
1. Letters from the appellant either to Jasawalla or to
the complainant.
2. Letters to the appellant from Jasawalla or the
complainant.
Most of the letters from the appellant relied upon bear what
purport to be his signatures. A few of them are admitted by
the appellant. There are also a few letters without
signatures. Both the complainant and Jasawalla speak to the
signatures on the other letters. The objection of the
learned counsel for the appellant is that neither of them
has actually seen the appellant write any of the letters nor
are they shown to have such intimate acquaintance with his
correspondence,
342
as to enable them to speak to the genuineness of these
signatures. Learned trial Judge as well as the learned
Judges of the High Court have found that there were
sufficient number of admitted or proved letters which might
well enable Jasawalla and the complainant to identify the
signatures of the appellant in the disputed letters. They
also laid stress substantially on the contents of the
various letters, in the context of the other letters and
telegrams to which they purport to be replies and which form
the chain of correspondence as indicating the genuineness of
the disputed letters. Learned counsel objected to this
approach on a question of proof. We are, however, unable to
see any objection. The proof of the genuineness of a
document is proof of the authorship of the document and is
proof of a fact like that of any other fact. The evidence
relating thereto may be direct or circumstantial. It may
consist of direct evidence of a person who saw the document
being written or the signature being affixed. It may be
proof of the handwriting of the contents, or of the
signature, by one of the modes provided in ss. 45 and 47 of
the Indian Evidence Act. It may also be proved by internal
evidence afforded by the contents of the document. This
last mode of proof by the contents may be of considerable
value where the disputed document purports to be a link in a
chain of correspondence, some links in which are proved to
the satisfaction of the court. In such a situation the
person who is the recipient of the document, be it either a
letter or a telegram, would be in a reasonably good position
both with reference to his prior knowledge of the writing or
the signature of the alleged sender, limited though it may
be, as also his knowledge of the subject matter of the chain
of correspondence, to speak to its authorship. In an
appropriate case the court may also be in a position to
judge whether the document constitutes a genuine link in the
chain of correspondence and thus to determine its
authorship. We are unable, therefore, to say that the
approach adopted by the courts below in arriving at the
conclusion that the letters are genuine is open to any
serious legal objection. The question, if any, can
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only be as to the adequacy of the material on which the
conclusion as to the genuineness of the letters is arrived
at. That however is a matter which we cannot permit to be
canvassed before us.
A few of the letters said to have been received from the
appellant, as stated above, do not bear his signatures.
These were held to have been proved by the,, circumstantial
evidence as pointed out and we see no objection thereto.
The next objection is as regards the letters said to have
been sent by Jasawalla and the complainant to the appellant.
Jasawalla and the complainant have produced copies of the
originals. It has been contended that these copies are
inadmissible. But such a contention is obviously untenable.
The appellant cannot be expected to produce them, if true,
since be disputes them. There is also the evidence of his
ex-employee, Sequeria, that the originals were received but
taken away by his son. The main contention in respect of
these letters is that there is no proof that they were
received by the appellant at Karachi. It is contended that
evidence given by either Jasawalla or the complainant that
the originals were written and posted is not relevant to
show that the same have been received. It is urged that the
proof of mere posting of a letter is not presumptive
evidence of the receipt thereof by the addressee unless
there is also proof that the original has not been returned
from the Dead Letter Office. Illustration (b) to s. 16 of
the Indian Evidence Act, 1872, is relied on for the purpose
and it is urged that a combination of the two facts is
required to raise such a presumption. We are quite clear
that the illustration only means that each one of these
facts is relevant. It cannot be read as indicating that
without a combination of these facts no presumption can
arise. ‘Indeed that section with the illustrations thereto
has nothing to do with presumptions but only with relevance.
Some cases relating to this have been cited before us. We
have considered the same but it is unnecessary to deal with
them.
Next taking the question relating to telegrams the main
objection is as to the proof of the genuineness of
344
the various telegrams said to have been received from the
appellant. In this case since we are largely concerned with
the nature and contents of the representations said to have
been made by the accused to the complainant or to Jasawalla,
it is obvious that what are relevant or important are the
telegraphic messages delivered to the complainant or
Jasawalla provided the authorship of the original is made
out. These messages have been proved by producing the
messages actually handed over. to either of these persons or
the transit copies of the originals recorded at the
receiving end. The real objection, however, appears to be
that there is no proof as to the appellant having been the
author of these messages. It is true that under s. 88 of
the Evidence Act there is a presumption only that the
message received by the addressee corresponds with the
message delivered for transmission at the office of origin.
There is no presumption as to the person who delivered such
a message for transmission. But here again proof of
authorship of the message need not be direct and may be
circumstantial as has been explained above in the case of
letters. The contents of the messages received, in the
context of the chain of correspondence may well furnish
proof of the authorship of the messages at the dispatching
end. A number of other minor objections have been also
raised before us connected with the proof of these
telegrams. They have all been fully dealt with by one of
the learned Judges of the High Court. Most of these
objections ate unsubstantial and it is enough to say that we
are in general agreement with the conclusions of the High
Court in this matter.
As regards both the letters and the telegrams considerable
argument was attempted before us as to the mode in which
they were let in for proof in the course of the examination
of the witnesses. But in the absence of any clear
indication on the record that any objection in that behalf
was seriously taken, we could not permit any challenge in
this behalf.
We may add that as regards the main objection both in
respect of letters as well as telegrams, viz., the use of
the contents of the disputed documents, for proof
345
thereof there is this that could be said, viz., in view of
the fact that quite a large number of the documents are not
admitted and only a few have been held to be’ admitted or
indubitably proved it may have been a question open before
the Court of appeal whether the internal evidence with
reference to such a large mass of correspondence subtantial
portion of which is disputed was adequate to arrive at a
satisfactory conclusion as to the genuineness of these
documents. That question is not open before us. But even
if we were inclined to go into this, it was well nigh impos-
sible, having regard to the fact that most of the documents
relied upon by the trial court as well as the appellate
court have not been printed in the record before us.
However, there is no reason to think that the learned Judges
who have considered the matter very elaborately have not
come to a satisfactory conclusion. They have acted not
merely on the internal evidence of the documents but also on
the oral evidence of three main witnesses, viz., the com-
plainant, Jasawalla and Sequeria, each set of evidence
having been considered as affirmative of the other and in
the aggregate as proving the authorship of the disputed
documents.
The fourth contention raised by the appellant’s counsel
relates to the validity of the conviction under s. 420/34 of
the Indian Penal Code. Learned counsel argued that persons
designated as accused 2, 3 and 4 in the complaint, were all
in Bombay and the appellant in Karachi and that therefore no
conjoint offence could be committed by them within the mean-
ing of s. 34 of the Indian Penal Code. He relies upon the
dictum in Shreekantiah Ramayya Munipalli v. The State of
Bombay (1) to the effect that it is essential that the
accused should join in the ” actual doing ” of the act and
not merely in planning its perpetration. We do not think
that case or the dictum therein relied on, have any bearing
on the facts of the present case. It is also necessary to
observe that what in fact has been found in this case is the
commission of the offence by the appellant himself. Though
the trial Magistrate and one of the learned Judges of the
High
(1) [1955] 1 S.C.R. 177, 1188.
346
Court referred to the conviction as a conviction under s.
420/34 of the Indian Penal Code, the actual findings support
a conviction of the appellant under s. 420 itself. Such a
conviction would be valid though the charge is under s. 420
read with s. 34 of the Indian Penal Code, (See Willie
(William) Slaney v. The State of Madhya Pradesh (1), unless
prejudice is shown to have occurred.
Thus there is no substance in contentions 3 and 4.
Contention No. 2 arises under the following circumstances.
It appears that the appellant was previously undergoing
trial in the Court of the Sessions Judge at Bombay for the
offences of forgery and fraud and was on bail in connection
with that trial. While thus on bail he fled away first to
Pakistan and from there to England. The Indian authorities
made an application to the Metropolitan Magistrate, Bow
Street, under the Fugitive Offenders Act, for his being
arrested and surrendered. That application was granted by
the Magistrate. Thereupon the appellant moved the Queens
Bench Division of the High Court in England for a writ of
habeas corpus challenging the validity of his arrest and
surrender to the Indian authorities. Judgment of Lord
Goddard C. J. dealing with this matter is reported as Re.
Government of India and Mubarak Ali Ahmed (2). The
application was dismissed and the order for surrender made
under the Fugitive Offenders Act was upheld. It appears
that when he was brought back to Bombay and was in jail
custody with reference to the resumed sessions trial, the
complainant got to know about it and filed his complaint on
June 30., 1952. The Presidency Magistrate took it on his
file and issued warrant against the accused and had him
brought up before his court in due course for trial
(presumably after the sessions trial was completed). The
objection raised before us is that the appellant having been
surrendered by the order of the Metropolitan Magistrate only
for the sessions trial which was pending against him in
Bombay, he could not be tried for any other offence said to
have been committed by him in India.
(1) [1955] 2 S.C.R. 1140.
(2) [1952] 1 All E.R. 1060.
347
Learned counsel relies on s. 3(2) of the English Extradi-
tion Act, 1870 (33 & 34 Vict. c. 52) which shows that, it is
contemplated thereby that a fugitive criminal’ who has been
surrendered under the Extradition Act in respect of a
particular offence should not be tried for any other offence
until he has been restored or has been given an opportunity
of returning. This section, however, has no bearing in the
present case, since, as already stated, the appellant was
surrendered under the Fugitive Offenders Act which contains
no analogous provision. Section 8 of the Fugitive Offenders
Act only provides for an optional repatriation of the
surrendered person at his request if he is acquitted of the
offence for which he is surrendered. Learned counsel urges
that the principle underlying s. 3(2) of the English
Extradition Act is a general one and that it should be
applied by analogy also to a surrender under the Fugitive
Offenders Act. We are unable to accede to that contention.
It may also be mentioned that even if his arrest in India
for the purpose of a trial in respect of a fresh offence is
considered not to be justified, this by itself cannot
vitiate the conviction following upon his trial. This is
now well-settled by a series of cases. (See Parbhu v.
Emperor(1) ; Lumbhardar Zutshi v. The King (2) ; and H. N.
Rishbud v. The State of Delhi (3 ). This contention must
accordingly be overruled.
We are left, therefore, with the first contention raised by
the learned counsel for the appellant which is the only
substantial question that has been raised before us
requiring careful consideration.
The first contention is raised on the assumption that the
appellant is a Pakistani national. At the outset, it may be
stated that it is doubtful whether in fact the appellant at
the time of the offence could be considered a Pakistani
national. The complainant asserted in his complaint, that
he came to know the appellant to be an Indian citizen and
described him as hailing from Hyderabad (Deccan) and as
having absconded to Pakistan and from there to England. In
(1) A.I.R. (1944) P.C. 73.
(2) A.I.R. (1950) P.C. 26
45
(3) (1955) 1 S.C R. 1150, 1 163.
348
a long written-statement filed after the prosecution closed
its case, the appellant himself gave details of his previous
history from the year 1928. He stated that he became a
Graduate with Honours from the Punjab University in 1928,
that he joined the Indian Finance Service and served in
various capacities and at various places, that he ultimately
resigned from the Government service in 1943 and joined an
industrial concern at Hyderabad (Deccan), that he did a lot
of business there and that he entered into a large business
contract with the Government of Hyderabad, which was revived
by the Military Government after the Police Action. He
winds up the narration of his previous history with the
following significant statement.
” The contract was satisfactorily fulfilled prior to my
migration to Pakistan in July, 1950. ”
This is a categorical statement of the appellant himself
which shows that he continued to be in India till July 1950.
If so, it appears _prima facie that by virtue of Art. 5 of
the Constitution read with Art. 7 thereof, he was a citizen
of India on the date of the Constitution and continued to be
so at the date of the offence in July-August, 1951, unless
he shows that under Art. 9 of the Constitution, he
voluntarily acquired the citizenship of a foreign State.
Prima facie mere migration to Pakistan is not enough to show
that he bad lost Indian citizenship. This question has not
been considered or dealt with in the courts below, probably
because it was not properly raised at the early stages.
Being a fundamental objection to jurisdiction this should
have been raised at the trial by the appellant (accused), at
any rate, soon after the charge was framed. We might well
have declined, therefore, to permit the question of
jurisdiction in this specific form to be argued before us.
But the learned Judges of the High Court have entertained it
and dealt with it on the stated assumption that the
appellant is a Pakistani national. To overrule the
objection at this stage without finally deciding whether the
appellant continues to be an Indian citizen (after remanding
for additional finding, if need be,) would not be fair or
satisfactory. In the circumstances we have felt it
349
desirable to allow arguments to proceed on the same
assumption which the High Court has made. We, therefore,
proceed to deal with it.
The learned Judges of the High Court decided against the
objection of the appellant as to the jurisdiction of the
court to try him for the alleged offence relying on s. 179
of the Code of Criminal Procedure which provides as follows:
” When a person is accused of the commission of any offence
by reason of anything which has been done, and of any
consequence which has ensued, such offence may be inquired
into or tried by a Court within the local limits of whose
jurisdiction any such thing has been done, or any such
consequence has ensued.” In view of the above provision, the
learned Judges say as follows :
” Even upon the footing that the representations were made,
or the deception was practised by the appellant, while he
was in Pakistan, the consequence of the deception, namely,
the delivery of the property, took place in Bombay. ”
They held that the appellant could, therefore, be tried in
Bombay in respect of the delivery of the money in Bombay.
The argument of the learned counsel for the appellant is
that s. 179 of the Code of Criminal Procedure proceeds on
the assumption that the person to be tried is substantively
liable for an offence under the Indian Penal Code and that
s. 179 prescribes the place of trial but does not create the
liability. He urges that since the appellant is a Pakistani
national who was not physically present at Bombay at any
stage of the commission of the offence, the Indian Penal
Code has no application to him. He is therefore not liable
for an offence under the Penal Code and hence is not triable
under s. 179 of the Code of Criminal Procedure. It appears
from s. 5(1) of the Code of Criminal Procedure that the
provisions of the said Code relating to the place of trial
assume the existence of substantive liability under the
Indian Penal Code or under any other law. Section 5(1) says
that ” all offences under the Indian Penal Code shall be
investigated, inquired into, tried and otherwise dealt
350
with according to the provisions hereinafter contained.” Now
the point raised by the learned counsel is that to hold a
person in the position of appellant substantively liable for
the offence charged against him in the circumstances of this
case, would be to give extraterritorial operation to the
provisions of the Indian Penal Code. He contends that such
extra-territorial operation can only be by reason of
specific legislation in this behalf and does not arise from
any general provisions of the Indian Penal Code.
To deal with this contention, it is necessary to appreciate
clearly the basic facts found in this case. The offence of
cheating under s. 420 of the Penal Code as defined in s. 415
of the Code has two essential ingredients, viz., (1) deceit,
i.e., dishonest or fraudulent misrepresentation to a person,
and (2) the inducing of that person thereby to deliver
property. In the present case the volume of evidence set
out above and the facts found to be true show that the
appellant though at Karachi was making representations to
the complainant through letters, telegrams and telephone
talks, some times directly to the complainant and some times
through Jasawalla, that he had ready stock of rice, that he
had reserved shipping space and that on receipt of money he
would be in a position to ship the rice forthwith. These
representations were made to the complainant at Bombay,
notwithstanding that the appellant was making the
representations from Karachi. The position is quite clear
where the representations were made through the trunk phone.
The statement of the appellant at the Karachi-end of the
telephone becomes a representation to the complainant only
when it reaches cognition of the complainant at the Bombay-
end. This indeed has not been disputed. It makes no
difference in principle if the representations have in some
stages been conveyed by telegrams or by letters to the
complainant directly or to some one of the appellant’s
agents, including Jasawalla in that category. There is also
no question that it is as a result of these representations
that the complainant’ parted with his money to the tune of
about Rs. 5 1/2 lakhs on three different dates. It has been
found that the
351
representations were made without being supported by the
requisite facts and that this was so to the knowledge of the
appellant and that the representations were so made with an
initial dishonest intention. On these facts it is clear
that all the ingredients necessary for finding the offence
of cheating under s. 420 read with s. 415 have occurred at
Bombay. In that sense the entire offence was committed at
Bombay and not merely the consequence, viz., delivery of
money, which was one of the ingredients of the offence.
Learned counsel for the appellant has not seriously
contested this position. But he urges that even so the
appellant who was not corporeally present in India at the
relevant time does not fall within the purview of the Indian
Penal Code. Now there can be no doubt that prima facie the
Indian Penal Code is intended to deal with all unlawful acts
and omissions defined to be offences and committed within
India and to provide for the punishment thereof of the
person or persons found guilty therefor. This is implicit
in the preamble and s. 2 of the Indian Penal Code. What is,
therefore, to be seen is whether there is any reason to
think that a foreigner not corporeally present at the time
of the commission of the offence does not fall within the
range of persons punishable therefor under the Code. It
appears to us that the answer must be in the negative unless
there is any recognised legal principle on which such
exclusion can be founded or the language of the Code compels
such a construction. It is strenuously urged that to
consider a foreigner guilty under the Penal Code for an
offence committed in India though attributable to him and to
punish him therefor in a case where he is not corporeally
present in India for the commission of the offence, would be
to give extraterritorial operation to the Indian Penal Code
and that an interpretation which brings such extra-
territorial operation must be avoided. The case of the
Privy Council in Macleod v. Attorney-General for New South
Wales(1) is relied upon. But this argument is based on a
misconception. The fastening of criminal liability on a
foreigner in respect of culpable acts or omissions
(1) (1891) A.C. 455.
352
in India which are juridically attributable to him
notwithstanding that he is corporeally present outside India
at the time, is not to give any extra-territorial operation
to the law; for it is in respect of an offence, whose
locality is in India, that the liability is fastened on the
person and the punishment is awarded by the law, if his
presence in India for the trial can be secured. That this
is part of the ordinary jurisdiction of a Municipal Court is
well recognised in the common law of England as appears from
Halsbury’s Laws of England (Third Edition) Vol. 10, p. 318.
Paragraph 580 therein shows that the exercise of criminal
jurisdiction at common law is limited to crimes committed
within the territorial limits of England and para. 581
states the jurisdiction in respect of acts outside English
territory as follows:
” For the purposes of criminal jurisdiction, an act may be
regarded as done within English territory, although the
person who did the act may be outside the territory; for
instance, a person who, being abroad procures an innocent
agent or uses the post office to commit a crime in England
is deemed to commit an act in England. If a person, being
outside England, initiates an offence, part of the essential
elements of which take effect in England, he is amenable to
English jurisdiction. It appears that even though the
person who has initiated such an offence is a foreigner, he
can be tried if he subsequently comes to England. ”
Thus the exercise of criminal jurisdiction in such cases
under the common law is exercise of municipal jurisdiction
and much more so in a case like the present, where all the
ingredients of the offence occur within the municipal
territory.
It would be desirable at this stage to notice certain well
recognised concepts of International Law bearing on such a
situation. Wheaton in his book on Elements of International
Law (Fourth Edition) at p. 183, dealing with criminal
jurisdiction states as follows:
By the Common Law of England, which has been adopted, in
this respect, in the United States, criminal offences are
considered as altogether local, and are
353
justiciable only by the courts of that country where the
offence is committed. ”
At p. 182 thereof it is stated as follows:
” The judicial power of every independent State, extends
(with the qualifications mentioned earlier) to the
punishment of all offences against the municipal laws of the
State, by whomsoever committed, within the territory. ”
In Hackworth’s Digest of International Law (1941 Edition),
Vol. 11, at p. 188 there is reference to opinions of certain
eminent American Judges. It is enough to quote the
following dictum of Holmes J. noticed therein :
“Acts done outside a jurisdiction, but intended to produce
and producing detrimental effects within it, justify a State
in punishing the cause of the harm as if he had been present
at the effect, if the State should succeed in getting him
within its power. ”
In Hyde’s International Law (Second Edition), Vol. 1, at p.
798, the following quotation from the judgment of the
permanent Court of International Justice dated September 7,
1927, in the case relating to S. S. Lotus is very
instructive:
” It is certain that the courts of many countries, even of
countries which have given their criminal legislation a
strictly territorial character, interpret criminal law in
the sense that offences, the authors of which at the moment
of commission are in the territory of another State, are
nevertheless to be regarded as having been committed in the
national territory, if one of the constituent elements of
the offence, and more especially its effects, have taken
place there. ”
This quotation is also noticed in Openheim’s International
Law (Eighth Ed.), Vol. 1 at p. 332 in the footnote. In
noticing the provisions of International Law in this context
we are conscious that what we have to deal with in the
present case is a question merely of municipal law and not
of any International Law. But as is seen above, the
principles recognised in
(1) Publications, Permanent Court of International justice,
Series A,
Nos. 10, 23.
354
International Law in this behalf are virtually based on the
recognition of those principles in the municipal law of
various countries and is really part of the general
jurisprudence relating to criminal responsibility under
municipal law. No doubt some of the above dicta have
reference to offences actually committed outside the State
by foreigners and treated as offences committed within the
State by specific legislation. But the principle emerging
therefrom is clear that once it is treated as committed
within the State the fact that he is a foreigner corporeally
present outside at the time of such commission is no
objection to the exercise of municipal jurisdiction under
the municipal law. This emphasizes the principle that
exercise of criminal jurisdiction depends on the locality of
the offence and not on the nationality of the alleged
offender (except in a few specified cases such as
ambassadors, Princes etc.).
Learned counsel for the appellant has relied on various
passages in the judgment of Cockburn C.J. in the well-known
case The Queen v. Keyn (Franconia’s case) (1). Fourteen
learned Judges participated in that case and the case
appears to have been argued twice. Eight of them including
Cockburn C.J. formed the majority. Undoubtedly there are
various passages in the judgment of Cockburn C.J. which
_prima facie seem capable of being urged in favour of the
appellant’s contention. In particular the following passage
at p. 235 may be noticed:
“The question is not whether the death of the deceased,
which no doubt took place in a British ship, was the act of
the defendant in such ship, but whether the defendant, at
the time the act was done, was himself within British
jurisdiction.”
The learned Chief Justice, however, recognised at p. 237
that there were certain American decisions to the contrary.
Now the main debate in that case was whether the sea up to
three mile limit from the shore is part of British territory
or whether in respect of such three mile limit only limited
and defined extra territorial British jurisdiction extended
which did not
(1) (1876) 2 Ex.D. 63.
355
include the particular criminal jurisdiction under con-
sideration. In respect of this question, as a result of the
judgment, the Parliament had to enact the Territorial Waters
Jurisdiction Act, 1878 (41 & 42 Vict., c. 73) which in
substance overruled the view of the majority and of the
learned Chief Justice on this point. The main principle of
criminal jurisdiction, however, relevant for our purpose was
enunciated in the minority judgment of Amphlett, J. A., at
p. 118, that “it is the locality of the offence that
determines’ the jurisdiction ” implying by contrast that it
is not the nationality of the offender.
The question, however, that still remains for consideration
is whether there is anything in the language of the sections
of the Indian Penal Code relating to the general scheme of
the Code which compels the construction that the various
sections of the Penal Code are not intended to apply to a
foreigner who has committed an offence in India while not
being corporeally present therein at the time. For this
purpose we are not concerned with such of the sections of
the Penal Code, if any, which indicate the actual presence
of the culprit as a necessary ingredient of the offence. Of
course, for such offences a foreigner ex hypothesi not
present at the time in India cannot be guilty. The only
general sections of the Indian Penal Code which indicate its
scheme in this behalf are ss. 2,3, and 4 and as they stand
at present, they are as follows:
” 2. Every person shall be liable to punishment under this
Code and not otherwise for every act or omission contrary to
the provisions thereof, of which he shall be guilty within
India.
3. Any person liable, by any Indian law, to be tried for
an offence committed beyond India shall be dealt with
according to the provisions of this Code for any act
committed beyond India in the same manner as if such act had
been committed within India.
4. The provisions of this Code apply also to any offence
committed by-
(1) any citizen of India in any place without and beyond
India;
46
356
(2) any person on any ship or aircraft registered in India
wherever it may be.
Explanation:-In this section the word ‘offence’ includes
every act committed outside India which, if committed in
India, would be punishable under this Code.”
Sections 3 and 4 deal with offences committed beyond the
territorial limits of India and s. 2 obviously and by
contrast refers to offences committed within India. It
appears clear that it is s. 2 that has to be looked to
determine the liability and punishment of persons who have
committed offences within India. The section asserts
categorically that every person shall be liable to
punishment under the Code for every act or omission contrary
to the provisions of the Code and of which he shall be
guilty within India. This recognises the general principle
of criminal jurisdiction over persons with reference to the
locality of the offence committed by them, being within
India. The use of the phrase ” every person ” in s. 2 as
contrasted with the use of the phrase “any person ” in s. 3
as well as s. 4 (2) of the Code is indicative of the idea
that to the extent that the guilt for an offence committed
within India can be attributed to a person, every such
person without exception is liable for punishment under the
Code. Learned counsel for the appellant suggests that the
phrase ” within India ” towards the end of s. 2 must be read
with the phrase ” every person ” at the commencement thereof
But this is far-fetched and untenable. The plain meaning of
the phrase ” every person ” is that it comprehends all
persons without limitation and irrespective of nationality,
allegiance, rank, status, caste, colour or creed. This
section must be understood as comprehending every person
without exception barring such as may be specially exempt
from criminal proceedings or punishment thereunder by virtue
of the Constitution (See Art. 361 (2) of the Constitution)
or any statutory provisions or some wellrecognised principle
of international law, such as foreign sovereigns,
ambassadors, diplomatic agents and so forth, accepted in the
municipal law.
357
Learned counsel drew our attention to a number of sections
in the Penal Code, viz., ss. 108A, 177, 203, 212, 216, 216A
and 236. The argument based on reference to these sections
is that wherever the legislature in framing the Penal Code
wanted to legislate about anything that has reference to
something done outside India it has specifically said so and
that therefore it may be expected that if it was intended
that the Penal Code would refer to a person actually present
outside India at the time of the commission of the offence,
it would have specifically said so. We are unable to accept
this argument. These sections have reference to particular
difficulties which arose with reference to what may be
called, a related offence being committed in India in the
context of the principal offence itself having been
committed outside India-that is for instance, abetment,
giving false information and harbouring within India in
respect of offences outside India. Questions arose in such
cases as to whether any criminal liability would arise with
reference to the related offence, the principal offence
itself not being punishable in India and these sections were
intended to rectify the lacunas. On the other hand, a
reference to s. 3 of the Code clearly indicates that it is
implicit therein that a foreigner who commits an offence
within India is guilty and can be punished as such without
any limitation as to his corporeal presence in India at the
time. For if it were not so, the legal fiction implicit in
the phrase “as if such act had been committed within India”
in s. 3 would not have been limited to the supposition that
such act had been committed within India, but would have
extended also to a fiction as to his physical presence at
the time in India.
In the argument before us, there has been some debate as to
what exactly is the implication of the clause ” of which he
shall be guilty within India ” in s. 2 of the Code. It is
unnecessary to come to any definite conclusion in respect
thereto. But it is clear that it does not support the
contention of the appellant’s counsel. We have, therefore,
no doubt that on a plain reading of s. 2 of the Penal Code,
the Code does
358
apply to a foreigner who has committed an offence within
India notwithstanding that he was corporeally present
outside.
It has next been urged before us that the exercise of
jurisdiction over a foreigner by municipal courts depends on
the theory of temporary allegiance to the State by reason of
his entry into the State, which carries with it the
protection of its laws and therefore his submission thereto.
Dicta from some of the decided cases have been cited before
us. It is unnecessary to deal with any of those cases. On
an examination of those cases it will be found that
allegiance, temporary or otherwise, has not been laid down
anywhere as a limiting principle in respect of criminal
jurisdiction, which is primarily concerned with questions of
security of the State and of the citizens of the State.
A number of early cases of the High Courts in India have
been brought lo our notice as bearing on the question now
under consideration. (See Reg. v. Elmstone, Whitwell (1) ;
Reg. v. Pirtai (2) ; Mussummat Kishen Kour v. The Crown (3)
; and Gokaldas Amarsee v. Emperor (4). As against them may
be noticed the case in Emperor v. Chhotalal Babar (5). It
is unnecessary to consider them at any length. Undoubtedly
some of them seem to support the view pressed before us on
behalf of the appellant that criminal jurisdiction cannot
extend to foreigners outside the State. These, however, are
decisions rendered at a time when the competence of the
Indian Legislature was considered somewhat limited, under
the influence of the decisions like those in Macleod’s
case(1) in spite of the decision in Queen v. Burah (1).
However that may be these concepts are no longer tenable
after India became a Dominion by the Indian Independence Act
of 1947 and after it became an independent free sovereign
republic under the present Constitution. It is enough to
refer to the case of Croft v. Dunphy(1) and to the decision
of Spens, C.J., in Governor-General v. Raleigh
(1) (1870) 7 Bom. H.C.R. 89 (Cr. Ca.).(5) (1912) I.L.R.
36 Bom. 524.
(2) (1873) 10 Bom. H.C.R. 356. (6) (1891) A.C. 455.
(3) (1878) 13 P.R. 49 (7) (1878) 3 A.C. 889.
(Criminal judgments). (8) (1933) A.C. 156.
(4) (1934) 35 Cr.L.J. 585.
359
Investment (1). In the latter case Spens, C.J., indicates.
that there has been considerable change in the concept of
the doctrine of extra-territorial legislation, subsequent to
Macleod’s case (2) and the criticism of Macleod’s case (2)
in certain Canadian decisions and of the Privy Council
itself has been adverted to.
Learned counsel invited our attention to a passage from the
report of the Indian Law Commissioners quoted at p. 274 of
Ratanlal’s Law of Crimes (Eighteenth Ed.). It is enough to
say that though this quotation may be valuable as a matter
of history, it cannot be a legitimate guide for the
construction of the section. That construction must be
based on the meaning of the words used, to be gathered
according to the ordinary rules of interpretation and in
consonance with the generally accepted principles of
exercise of criminal jurisdiction. It is not necessary and
indeed not permissible to construe the Indian Penal Code at
the present day in accordance with the notions of criminal
jurisdiction prevailing at the time when the Code was
enacted. The notions relating to this matter have very
considerably changed between then and now during nearly a
century that has elapsed. It is legitimate to construe the
Code with reference to the modern needs, wherever this is
permissible, unless there is anything in the Code or in any
particular section to indicate the contrary.
After giving our careful consideration to the questions
raised before us, we are clearly of the opinion that even on
the assumption that the appellant has ceased to be an Indian
citizen and was a Pakistani national at the time of the
commission of the offence, he must be held guilty and
punished under the Indian Penal Code notwithstanding his not
being corporeally present in India at the time.
We have been asked to consider the question of sentence. As
has been stated ,it the outset the substantive sentences of
imprisonment are two years tinder the first count and
twenty-two months under the second. The sentences were
concurrent on the second
(1) A.I.R. (1944) F.C. 51, 60,61.
(2) (1891) A.C. 455.
360
and third counts. As a result, the total imprisonment which
has been awarded against the appellant would be a period of
three years and ten months. We are not prepared to say that
the discretion of the trial Court in awarding that sentence
has been wrongly exercised.
The appeal is accordingly dismissed.
Appeal dismissed.
One Comment “Mobarik Ali Ahmed vs The State Of Bombay on 6 September, 1957”