{"id":70922,"date":"1957-09-06T00:00:00","date_gmt":"1957-09-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mobarik-ali-ahmed-vs-the-state-of-bombay-on-6-september-1957"},"modified":"2017-10-15T12:02:34","modified_gmt":"2017-10-15T06:32:34","slug":"mobarik-ali-ahmed-vs-the-state-of-bombay-on-6-september-1957","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mobarik-ali-ahmed-vs-the-state-of-bombay-on-6-september-1957","title":{"rendered":"Mobarik Ali Ahmed vs The State Of Bombay on 6 September, 1957"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mobarik Ali Ahmed vs The State Of Bombay on 6 September, 1957<\/div>\n
Equivalent citations: 1957 AIR 857, \t\t 1958 SCR 328<\/div>\n
Author: B Jagannadhadas<\/div>\n
Bench: Jagannadhadas, B.<\/div>\n
           PETITIONER:\nMOBARIK ALI AHMED\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF BOMBAY\n\nDATE OF JUDGMENT:\n06\/09\/1957\n\nBENCH:\nJAGANNADHADAS, B.\nBENCH:\nJAGANNADHADAS, B.\nIMAM, SYED JAFFER\nMENON, P. GOVINDA\n\nCITATION:\n 1957 AIR  857\t\t  1958 SCR  328\n\n\nACT:\nCriminal   Law-Foreigner-Resident   outside    India-Offence\ncommitted  in  lndia--Conviction by Indian Court  under\t the\nlndian\tPenal Code-Legality-Offendey extradited and  brought\nto India Arrest for a fresh offence and conviction-Validity-\nCharge under s.\t    420 read with s. 34 Of the Indian  Penal\nCode-Conviction under s. 420   alone-Legality'\t Extradition\nAct, 1870 33 & 34 Vict. C. 52),s.  3(2)-Fugitive   Offenders\nAct,  1881, (44 & 45 Vict. c. 69). s. 8- Indian\t Penal\tCode\n(Act XLV of 1860), ss. 2, 34, 420.\n\n\n\nHEADNOTE:\nThe  appellant,\t a  Pakistani  national\t doing\tbusiness  in\nKarachi,  was convicted of the offence of cheating under  s.\n420 Of the Indian Penal Code.  The prosecution case was that\nwith a dishonest intention he made false representations  to\nthe  complainant  at Bombay through letters,  telegrams\t and\ntelephone  talks, that he had ready stock of rice,  that  he\nhad reserved shipping space and on receipt of money he would\nbe  in a position to ship the rice forthwith, and  that\t the\ncomplainant who was anxious to import rice urgently sent the\namount\t to   the   appellant  on   the\t  belief   of\tsuch\nrepresentations.   It was contended for the  appellant\tthat\nthe conviction was bad on the grounds inter alia (1) that he\nwas  a Pakistani national who, during the entire  period  of\nthe commission of the offence, never stepped into India\t and\nwas  only  at Karachi and that he could not be tried  by  an\nIndian Court nor be punishable under the Indian Penal  Code,\n(2) that lie\n329\nwas  brought over from England, where he happened to be,  by\nvirtue of extradition proceedings in connection with another\noffence the trial for which was then pending in the Sessions\nCourt at Bombay, and that he could not be validly tried\t and\nconvicted for a different offence like the present, and\t (3)\nthat  the charge being one under s. 42o read with s.  34  of\nthe  Indian Penal Code for alleged conjoint acts of  himself\nalong with three others and those three not being before the\nCourt,\tand himself not having been in Bombay at  the  time,\nthe conviction was unsustainable.\nHeld:\t  (1)  that,  on  the  facts,  all  the\t ingredients\nconstituting  the  offence of cheating under S. 420  Of\t the\nIndian Penal Code having occurred in Bombay, the offence was\ncommitted  there  and  that, though the\t appellant  was\t not\ncorporeally  present in India at the time of the  commission\nof  the offence, his conviction under the Indian Penal\tCode\nwas valid in view of the terms of s. 2 of the Code;\n(2)  that,  as the appellant was surrendered to\t the  Indian\nauthorities  under  the Fugitive Offenders  Act,  1881,\t and\nthere  was  no provision in that Act  preventing  arrest  in\nIndia  for  the\t purpose of a trial in respect\tof  a  fresh\noffence, his conviction following upon his trial was valid.\nH.   N.\t Rishbud  v. The State of Delhi, (1955)\t 1  S.C.  R.\nII50, relied on.\n(3)  that the conviction of the appellant of the offence of\nS.   420  was valid, though the charge was one under S.\t 420\nread  with s. 34, as the actual findings in the\t case  could\nsupport a conviction under S. 420 itself.\nWillie\t(William  Slaney) v. The State\tof  Madhya  Pradesh,<\/a>\n(1955) 2 S.C.R. II40, relied on.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION\t  Criminal Appeal No. 200 of
\n1956.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nJuly  20, 1954, of the Bombay High Court in Criminal  Appeal
\nNo.  1596  of 1953, arising out of the\tjudgment  and  order
\ndated  September  23, 1953, of the Court of  the  Additional
\nChief  Presidency Magistrate, 3rd Court, Esplanade,  Bombay,
\nin Case No. 31\/W of 1953.\n<\/p>\n
A.   P. Gandhi and J. B. Dadachanji, for the appellant.
\nH.   J. Umrigar and R. H. Dhebar, for the respondent.
\n1957.  September 6. The following Judgment of the Court\t was
\ndelivered by
\n330<\/span>
\nJAGANNADHADAS  J.-This is an appeal by special\tleave.\t The
\nappellant before us was convicted by the learned  Presidency
\nMagistrate, Third Court, Esplanade, Bombay, for the  offence
\nof cheating under s. 420 read with s. 34 of the Indian Penal
\nCode  on three counts of cheating, viz., the first  relating
\nto a sum of Rs. 81,000, the second relating to a sum of\t Rs.
\n2,30,000,  and the third relating to a sum of Rs.  2,36,900.
\nHe  was\t sentenced by-the learned Magistrate  to  two  years
\nrigorous  imprisonment and a fine of Rs. 1,000 on the  first
\ncount, to twenty-two months rigorous imprisonment and a fine
\nof  Rs. 1,000 on the second count, and two  months  rigorous
\nimprisonment  on the third count.  It was directed that\t the
\nsubstantive  sentences only on the second and  third  counts
\nare to run concurrently.\n<\/p>\n
The  prosecution was initiated on a private complaint  filed
\nby  one\t Louis Anton Cornea on June 30, 1952,  against\tfour
\npersons of whom the appellant was designated therein as\t the
\nfirst accused and one Santram as the fourth accused and\t two
\nother  persons, A. A. Rowji and S. A. Rowji, as\t second\t and
\nthird  accused respectively.  Bailable warrants were  issued
\nagainst\t all  the  four by the\tlearned\t Magistrate  but  it
\nappears that warrants could not be executed against  accused
\n2, 3 and 4. They were reported as absconding.  The trial was
\naccordingly separated as against them and proceeded only  as
\nagainst\t (the  first  accused) the  appellant  herein.\t The
\nconvictions  and sentences have been confirmed on appeal  by
\nthe High Court at Bombay.\n<\/p>\n
The  complainant  is  a businessman from  Goa  and  was\t the
\ndirector  of a firm in Goa which was trading in the name  of
\nColonial  Limitada doing business in import and export.\t  At
\nthe relevant time there was severe scarcity of rice in\tGoa.
\nThe  complainant  was  accordingly anxious  to\timport\trice
\nurgently  into Goa.  He got into touch with a friend of\t his
\nby name Rosario Carvalho in Bombay who was doing business as
\na  commission  agent.  Carvalho in his turn got\t into  touch
\nwith one Jasawalla who was also doing business of commission
\nagent at Bombay in the name of Universal Supply Corporation.
\nThis Jasawalla was previously
\n331<\/span>
\nin correspondence with the appellant about business in rice.
\nThe  appellant\twas  at the time in Karachi  and  was  doing
\nbusiness  in  the  name\t of  Atlas  Industrial\tand  Trading
\nCorporation and also in the name of Ifthiar Ahmed & Co.\t The
\ntelegraphic  address of the complainant was  Colodingco\t and
\nthat of the appellant was Ifthy.  As a result of exchange of
\ntelegrams, letters and telephone messages between  Jasawalla
\nand the appellant on one side, Jasawalla and the complainant
\non  the\t other, followed up by direct contacts\tbetween\t the
\nappellant  and the complainant through telephone,  telegrams
\nand  letters, a contract was brought about for purchase,  by
\nthe complainant from the appellant, of 1,200 tons of rice at
\nthe rate of pound 51 per ton, to be shipped from Karachi  to
\nGoa.   The  contract  appears originally to  have  been\t for
\npayment of the price in sterling at Karachi.  But it is\t the
\nprosecution case (which has been accepted by both the courts
\nbelow) that a subsequent arrangement was arrived at  between
\nthe parties by which the payment was to be made in Bombay in
\nIndian currency, in view of the difficulties experienced  in
\nopening a letter of credit in a Bank at Karachi through\t the
\nPortuguese  Bank at Goa.  It is also the  prosecution  case,
\nwhich has been accepted, that the understanding was that 25%
\nof the price was to be paid as advance by the complainant to
\nJasawalla as the agent of the appellant for this purpose and
\nthat  on receiving intimation thereof the appellant  was  to
\nship the rice and that the balance of the purchase money was
\nto  be paid on presentation of the shipping  documents.\t  It
\nappears\t that  at a later stage the quantity of rice  to  be
\nsupplied was raised to 2,000 tons and advance to be paid  to
\n50%  of\t the  total  stipulated\t price.\t  It  is  also\t the
\nprosecution  case that the appellant represented at  various
\nstages\tby  telephone  talks,  telegrams,  and\tletters,  to
\nJasawalla as well as to the complainant directly that he had
\nadequate  stock\t of rice and that he had  reserved  shipping
\nspace in certain steamers which were about to leave for\t Goa
\nand  that  he was in a position to ship the  rice  on  being
\nsatisfied  that\t the requisite advance was paid.  It  is  in
\nevidence that on receiving such assurances, the complainant
\n43<\/span>
\n332<\/span>
\npaid  moneys  as  shown\t below\tto  Jasawalla  and  obtained
\nreceipts  from\thim,  purporting  to be\t the  agent  of\t the
\nappellant.<\/p>\n
     1. On July 23, 1951\t  …Rs. 81,000\n<\/p>\n
     2. On August 28, 1951\t   …Rs. 2,30,000\n<\/p>\n
     3. On August 29, 1951\t  … Rs. 2,36,900
\n     All these amounts are held to have been received by the
\nappellant in due course.  It is admitted, however., that  no
\nrice was in fact shipped to the complainant and the  amounts
\nhave not been returned back to the complainant.\t The defence
\nof the appellant is to the effect that the amounts were\t not
\nin fact paid to any person who was his agent and not in fact
\nreceived by him at all and that he was unable to supply\t the
\nrice as the complainant did not comply with the terms of the
\ncontract by opening a letter of credit at Karachi or  paying
\nhim  in\t Pakistani  currency.  This  defence  has  not\tbeen
\naccepted and the appellant has been found guilty as  charged
\nby  the\t courts\t below.\t  He  was  therefore  convicted\t and
\nsentenced as above stated.\n<\/p>\n
It is necessary to set out somewhat in detail the  essential
\nfacts  held  to\t have been proved by  the  courts  below  to
\nappreciate the legal contentions that have been urged before
\nus.   As previously stated, the complainant got\t into  touch
\nwith  his friend Carvalho of Bombay to help him\t in  getting
\nrice  for consumption in Goa and Carvalho in turn  contacted
\nJasawalla for the purpose.  Before that time, Jasawalla,  in
\nthe course of his usual business, had received a letter, Ex.
\n0,  dated June 5, 1951, from the appellant offering that  he
\nwould  be  prepared to do business in rice if  a  letter  of
\ncredit\tis  opened  or\tcash payment  is  made\tin  Karachi.
\nCarvalho  came to know of this from Jasawalla  and  informed
\nthe  complainant.   Jasawalla  also wrote a  letter  to\t the
\ncomplainant.   The complainant sent a telegram\tshowing\t his
\nwillingness  to open credit, if 1,200 tons of rice could  be
\nshipped\t to  Goa.  Jasawalla wrote a letter, Ex.   P,  dated
\nJune  6, 1951, to the appellant quoting the telegram of\t the
\ncomplainant  and asking for an offer.  The appellant by\t his
\nletter dated June 10 to Jasawalla, offered to supply as
\n333<\/span>
\nmuch  rice  as he wanted and demanded 25%  cash\t payment  as
\nadvance.    After   some  tripartite   correspondence,\t the
\nappellant  by  his letter dated June 26,  agreed  to  accept
\nmoney in Bombay, at the price of  pound 51 per ton of  rice.
\nJasawalla  by  telegram\t dated July 5,\t1931,  informed\t the
\nappellant  that the Goa party accepted the 25%\tarrangement.
\nThe  appellant by a letter dated July 7, accepted the  offer
\nbut  wanted  50%  deposit  and\tgave  time  till  the  10th,
\nsuggesting  that since the rice was scarce the deal must  be
\nfinished   at  once.   Jasawalla  intimated  this   to\t the
\ncomplainant  and asked him to start at once with  money\t and
\ninformed him that if there was delay the party at the  other
\nend  would  claim damages.  The appellant did  not  get\t any
\ninformation for the next few days.  He accordingly sent\t one
\nSantram (accused 4 in the complaint) to Bombay as his  agent
\nfor discussing the matter in question and authorising him to
\nfix the deal on the spot.  Santram appears to have fixed the
\nbargain\t for shipping 1,200 tons of rice on the\t complainant
\npaying\tan  advance  sum of Rs. 1,50,000 at  Bombay  as\t 25%
\ndeposit\t towards the price of the said 1,200 tons  of  rice.
\nOn receipt of this information the appellant wrote a  letter
\ndated  July  12,  to  Jasawalla\t wherein  he  confirmed\t the
\narrangement arrived at by Santram.  Jasawalla was  thereupon
\ntaken by Santram to accused 2 and 3. They were introduced to
\nhim  as the agents of the appellant who were to receive\t the
\nmoneys in this transaction on appellant’s behalf At the same
\ntime  the  appellant was also writing letters  to  Jasawalla
\nwhich  seem  to\t indicate that he was trying  to  shift\t his
\nposition  by asking for 50% as advance deposit.\t For  a\t few
\ndays  thereafter the complainant did not turn up  at  Bombay
\nwith the funds and the appellant by his telegram dated\tJuly
\n16,  asked  Jasawalla why there is  no\tfurther\t information
\nabout  the  transaction.  By a telegram dated  July  17,  he
\ninformed  Jasawalla that S. S. Olinda was sailing in  a\t few
\ndays and that it would be too late to ship the rice and that
\nthe matter should be hurried up. On July 18, the complainant
\nsent  a\t telegram  to Jasawalla informing him  that  he\t was
\ncoming with
\n334<\/span>
\nfunds and that if the rice was not shipped it may be shipped
\nby  S.S.  Olinda which was about to start on July  21.\t The
\nappellant  also\t sent a telegram to Jasawalla  on  July\t 18,
\nasking\twhy  the  deal was not coming on  and  that  he\t had
\nalready reserved space by the steamer of the 21st.  On\tJuly
\n19  again Jasawalla received a telegram from  the  appellant
\ninforming  him\tdefinitely that space was  reserved  in\t the
\nsteamer.  The complainant also sent a telegram to  Jasawalla
\non the same day informing him that he was coming and that at
\nleast  500  tons must be shipped at once.   The\t complainant\n<\/p>\n
-arrived  at  Bombay on July 20.  The indent,  Ex.   A,\t was
\nprepared in triplicate and signed by the complainant on\t the
\nsame day.  The complainant brought cheques and drafts to the
\ntune of Rs. 81,000.  It would appear that at this stage\t the
\ncomplainant  was asking that, he should be allowed (for\t the
\ntime  being)  to deposit only Rs. 50,000 as  deposit  for  a
\nshipment  of  500  tons.  But appellant\t insisted  that\t Rs.
\n1,50,000  should be paid as advance for 1,200 tons.   On  or
\nabout July 21, the appellant sent a letter to Jasawalla with
\na  pro-forma  receipt for Rs. 1,50,000 signed by him  to  be
\nmade  use  of  by Jasawalla in whatever\t manner\t he  thought
\nproper\tin connection with the transaction then\t under\tway.
\nThe said receipt was shown to the complainant who Was  shown
\nalso  the  other correspondence that was received  from\t the
\nappellant.   Jasawalla by his letter dated July 22,  to\t the
\nappellant  confirmed the shipment of the deal of 1,200\ttons
\nof  rice  and intimated that some portion of the  money\t was
\nimmediately ready and some portion would be brought in a day
\nor two, totalling over Rs. 80,000 and that the balance would
\nbe  paid after hearing about shipment of 1,200\ttons.\tThis
\nwas  agreed  to\t by the appellant.  On\tJuly  23,  Jasawalla
\ntelephoned  to\tthe appellant that he was going to  pay\t the
\nmoney  to  accused 2 as directed by the\t appellant.  In\t the
\nafternoon of that very day the parties went to the office of
\naccused 2 and there was again a further conversation on\t the
\nphone  with  the appellant who, on the phone,  conveyed\t the
\nassurance  that\t payment to accused 2 would be\tas  good  as
\npayment to himself.\n<\/p>\n
335<\/span><\/p>\n
The  complainant and Carvalho were hearing both the  morning
\nand afternoon talks between the appellant and Jasawalla,  on
\na  second line.\t Thereupon the complainant paid the  sum  of
\nRs.  81,000  to\t Jasawalla who passed  a  receipt  (Ex.\t  B)
\ntherefor on behalf of the appellant and the said amount\t was
\npassed\ton  to\taccused\t 2. The fact  of  this\tpayment\t was
\nintimated  to  the appellant by telephone as well  as  by  a
\ntelegram.   A  letter  was also written on July\t 24  to\t the
\nappellant referring to the telephone calls and telegram\t and
\ninforming  him that the amount was paid.  He was also  asked
\ntherein to ship the rice at once promising that the  balance
\nwill  be  paid in a week.  On July 23 itself  the  appellant
\nsent a telegram saying that he had received the messages and
\nwas trying to book 1,000 tons.\tAccording to the prosecution
\ncase the appellant having received the sum of Rs. 81,000  as
\nabove, changed his front from July 24, 1951.  The facts held
\nto  have been proved in respect of this change of front\t may
\nnow be stated.\n<\/p>\n
On July 24, 1951, the appellant sent to Jasawalla a telegram
\nmentioning  difficulties created by the Exchange  Controller
\nin shipping the goods.\tWhen Jasawalla conveyed his  protest
\nand  insisted  upon the shipping of the goods at  once,\t the
\nappellant sent a telegram on July 25, informing him that the
\ndifficulties  were of a minor character and that  the  space
\nfor shipping was already booked.  Jasawalla by his  telegram
\nof the same date asked for confirmation of loading of  1,200
\ntons  by  S. S. Olinda and requested him that  if  the\tfull
\nquantity  could\t not be loaded, a portion thereof  might  be
\nsent  immediately.  The appellant by his letter\t dated\tJuly
\n26,  acknowledged Jasawalla’s letter dated  23rd  (informing
\nhim about the payment of Rs. 81,000) and intimated that\t the
\nrice  would  be\t shipped by the next steamer  S.  S.  Umaria
\nsailing\t for Malaya and that the said steamer can touch\t Goa
\nif  the\t quantity of rice to be shipped is raised  to  2,000
\ntons.\tBy  a  letter dated  July  26,\tJasawalla  protested
\nagainst\t the new condition.  The complainant sent  a  letter
\ndated  July  27, to Jasawalla asking whether  the  rice\t was
\nshipped by S. S. Olinda
\n336<\/span>
\nor  not.   On  July 27, the appellant  sent  a\ttelegram  to
\nJasawalla   asking  for\t bank-guarantee\t (for\tpayment\t  of
\nbalance)..  It\tdoes not appear that any question  of  bank-
\nguarantee  was\traised\tin the\tcorrespondence\tbetween\t the
\nparties, after Santram (accused 4) fixed up the deal on\t the
\nfooting\t of payment of advance of Rs. 1,50,000, in  cash  at
\nBombay\tby  way of 25% deposit.\t On  receiving\tthis  letter
\nraising the question of bank-guarantee, Jasawalla wrote back
\non  the 27th to the appellant about the change of front\t and
\ncharging  him with cheating and not fulfilling his  part  of
\nthe  contract after receiving the money.  By a letter  dated
\nJuly  30 and also a telegram of the same date the  appellant
\nreplied to Jasawalla wherein he promised to send the rice by
\nS.  S. Umaria and also threatened to break off\tnegotiations
\nif  the\t parties  bad  no  confidence  in  him.\t   Jasawalla
\nthereupon asked the appellant by telegram to fix the sailing
\ndate  of S. S. Umaria and inform him.  The  appellant  wrote
\nback  on  August  1,  admitting\t receipt  of  letters\tfrom
\nJasawalla  and attempting to pacify him.  Jasawalla  replied
\nthanking him and asked for a clear date of the sailing of S.
\nS.  Umaria.  By that time Jasawalla had made enquiries\twith
\nMackinons  &  Mackenzie (shipping agents) and  was  informed
\nthat  no shipping space had been reserved by  the  appellant
\nand  found the statement of the appellant in this behalf  to
\nbe  false.   Jasawalla sent copies  of\tthis  correspondence
\nbetween\t him  and the appellant to  the\t complainant.\tThat
\ncorrespondence indicated the appellant’s position to be that
\nthe  rice would be shipped by S. S. Umaria only if the\tload
\ncould  be  increased to 2,000 tons and\tthat  the  appellant
\nstated\tthat he got the sailing of S. S. Umaria\t delayed  by
\ntwo  days  for\tthe  purpose.\tThe  complainant   thereupon
\ninformed  Jasawalla that he was prepared to accept  the\t new
\ndeal for 2,000 tons.  Jasawalla by his telegram dated August
\n2,  to the appellant confirmed this new arrangement  and  by
\nanother\t telegram  dated August 3, asked  the  appellant  to
\nhurry up with the shipment.  Thereafter the appellant raised
\na  fresh matter.  On August 6, the appellant sent  a  direct
\ntelegram to the complainant
\n337<\/span>
\nand  asked  him\t to request  the  portuguese  Pro-Consul  at
\nKarachi to obtain exchange-guarantee.  Between August 7\t and
\n12,  several  letters  and  telegrams  passed  between\t the
\ncomplainant and Jasawalla on the one hand and the  appellant
\non the other.  As a result of efforts made in this interval,
\nit appears that the Pro.  Consul, Mr. Alphonso, was prepared
\nto give the exchange-guarantee of the State Bank of Pakistan
\nfor payment in sterling of the price of rice.  The appellant
\nthen by his letter dated August 13, informed Jasawalla\tthat
\nthe  State Bank was not insisting on exchange guarantee\t but
\nthat  it would be sufficient if a certificate was issued  by
\nthe  Portuguese\t authority that the rice  was  required\t for
\nreplenishing the ration shops in Goa.  A similar letter\t was
\nalso  written  by  the\tappellant  on  August  14,  to\t the
\ncomplainant.\tThereupon  the\tcomplainant  and   Jasawalla
\napproached  the\t concerned authority at Goa, viz.,  one\t Mr.
\nCampos,\t the Trade Agent to the Portuguese Government.\t Mr.
\nCampos\tthereupon sent telegrams on August 16, to the  State
\nBank  of Pakistan, to the Pro-Consul, Mr. Alphonso,  and  to
\nthe   appellant\t certifying  that  rice\t was  required\t for
\nreplenishing the ration shops in Goa.\n<\/p>\n
After  this  there was a further change of  tactics  by\t the
\nappellant.   By\t a  telegram  dated  August  20,  1951,\t the
\nappellant  informed the complainant that the  papers  before
\nthe Government were ready and that he had done his best\t but
\nthat payment must be made.  In reply the complainant sent  a
\ntelegram  to the appellant on the same date stating that  he
\ndid not understand the contents of his telegram and promised
\nto  send  the  balance on  loading.   The  complainant\talso
\ninformed Jasawalla about these telegrams exchanged.  between
\nhim and the appellant.\tThis was followed up by some further
\ncorrespondence\tbetween\t the  parties  on  August  22.\t The
\nappellant  sent\t telegrams both to the\tcomplainant  and  to
\nJasawalla demanding 90% deposit as advance and threatened to
\nbreak off if it was not complied with.\tThereupon  Jasawalla
\nsent  a telegram; on the 22nd to the complainant to come  to
\nBombay.’ He informed the appellant the same day that the
\n338<\/span>
\ncomplainant  was coming down to Bombay to arrange  ‘for\t 50%
\ndeposit\t and asked the appellant to start loading.   On\t the
\n24th  he wrote also a letter to the appellant to the  effect
\nthat the complainant would pay 50% advance minus the  amount
\nalready paid and informed him that the complainant would fly
\nto   Karachi  to  supervise  the  loading.   The   appellant
\nthereupon sent a telegram dated the 25th informing Jasawalla
\nthat everything was ready but hinted about the opening of  a
\nletter of credit.  Again on August 27, the appellant sent  a
\ntelegram  to  Jasawalla that stocks could  not\tbe  released
\nunless\tthe arrangement was fulfilled, i.e., 90% amount\t was
\npaid.\tThe  complainant  came to  Bombay  with\t drafts\t and
\ncheques\t to  the tune of about Rs.  4,75,000  and  contacted
\nJasawalla.   He contacted also the appellant on\t phone.\t  He
\npaid  the  sum\tof  Rs. 2,30,000  on  August  28,  1951,  to
\nJasawalla who passed a receipt, Ex.  F, therefor, on  behalf
\nof  the\t appellant.   On August\t 29,  the  complainant\tpaid
\nanother\t sum  of  Rs. 2,36,900 to Jasawalla  who  passed  a,
\nreceipt,  Ex.  G, therefor, on behalf of the appellant.\t  It
\nis  the\t case of the prosecution that both these  were\talso
\npassed\ton  to\tthe second accused and through\thim  to\t the
\nappellant  and\tthat the appellant acknowledged\t receipt  of
\nthese  amounts in his correspondence and that case has\tbeen
\nalso  accepted.\t  On the 29th itself. the appellant  sent  a
\ntelegram to Jasawalla as follows:\n<\/p>\n
“Part consignment received, rest tomorrow, Pentakota for the
\n1st  certain goods required alongside.\t”\n<\/p>\n
 on  receiving\tthis telegram Jasawalla informed  him  by  a
\ntelegram dated August 31, that he was shocked that no  space
\nwas  reserved, though everything had been done on his  side.
\nThe  appellant sent a reply by telegram dated  September  1,
\n1951,  protesting against the language used by Jasawalla  in
\nthe  telegram and informed him that space was  reserved\t but
\nthe  Company  could  not  wait as the  goods  could  not  be
\nshipped.   On September 5, the appellant informed  Jasawalla
\nby  a letter that space was reserved by S.S.  Pentakota\t and
\nthat  everything  was  ready for  shipment.   Meanwhile\t the
\ncomplainant  feeling  very  nervous and\t anxious  about\t the
\nfulfilment of the transaction proceeded in
\n339<\/span>
\nperson\t to  Karachi  on  September  4.\t According  to\t the
\ncomplainant  he stayed at Karachi for about two\t weeks.\t  He
\nwas shown some godowns containing rice bags suggesting\tthat
\nthey belonged to the appellant and were ready for  shipments
\nBut  he was not afforded any opportunity for verifying\tthat
\nthe  stock  was\t intended for shipment\tin  respect  of\t his
\ntransaction.  The complainant went to Karachi on a Visa\t for
\nthree  months.\tBut after a stay of less than two  weeks  he
\nwas served with a quit-order from the Pakistan Government on
\nSeptember  18,\tand was bundled out of Karachi.\t It  is\t the
\ncomplainant’s  impression  that this was manoeuvred  by\t the
\nappellant.   On\t his return back, correspondence  was  again
\nresumed\t between  the appellant and the complainant.   By  a
\nletter\tdated September 21, the appellant promised  to\tship
\nthe  goods  by S.S. Ismalia which would not  be\t sailing  in
\nSeptember but would leave on October 3. On September 23, the
\nappellant sent another letter stating that S.S. Ismalia\t was
\narriving-on  October 3 and not on September 26.\t On  October
\n3,  the\t appellant wrote another letter to  the\t complainant
\ninforming  him\tthat S.S. Ismalia was  not  available.\t The
\ncomplainant  thereafter\t sent a telegram  to  the  appellant
\ndated  September 29, calling upon him to ship the  goods  by
\nS.S.  Shahjehan\t if  S.S. Ismalia was  not  available.\t The
\ncomplainant by a further letter dated October 1, called upon
\nthe appellant to ship the rice at once.\t By a telegram dated
\nOctober 2, the appellant informed the complainant that\tS.S.
\nShahjeban was arriving the, next day and that he would\twire
\nthe  position.\tBy his telegram dated the 3rd,\the  informed
\nthe complainant that the loading had commenced.\t On  October
\n6,  the\t complainant  received\tanother\t telegram  from\t the
\nappellant  that he would not ship per S.S.  Shahjehan  until
\ndemands in his letter dated September 29 are complied  with.
\nIt  is the complainant’s case that no such letter  was\tever
\nreceived by him., Jasawalla also informed the appellant that
\nno  letter  dated September 29 was  received.\tBy  telegram
\ndated  October 8, 1951, Jasawalla called upon the  appellant
\nto refund the money and cancel the contract.  On October 12,
\nthe appellant sent a telegram 44
\n340<\/span>
\nwhich conveyed a suggestion that he would ship rice by\tS.S.
\nShahjehan  arriving  on October 19, instead  of\t October  9.
\nThere  were  some further telegrams exchanged.\tFinally\t the
\ncomplainant sent a telegram on October 26, calling upon\t the
\nappellant  to  ship rice immediately or\t refund\t the  money.
\nThis  was  followed by further\texchange  of  correspondence
\nwhich  ultimately resulted in a letter by the  appellant  to
\nthe   complainant  dated  November  17,\t denying   all\t the
\nallegations made against him.\n<\/p>\n
The above facts were held to have been proved by the  courts
\nbelow on the basis of a good. deal of correspondence between
\nthe   parties  consisting  of  telegrams  and  letters\t and
\nsupported  by  the oral evidence mainly\t of  three  persons,
\nviz.,  (1)  the complainant, (2) Jasawalla, and (3)  an\t ex-
\nemployee of the appellant at Karachi by name Sequeria.\t All
\nthis  evidence has been accepted by the courts\tbelow  after
\nfull  consideration of the various comments  and  criticisms
\nagainst acceptability of the same.\n<\/p>\n
In  a  case of this kind a question may well  arise  at\t the
\noutset whether the evidence discloses only a breach of civil
\nliability  or  a  criminal offence.  That  of  course  would
\ndepend\tupon  whether the complainant in  parting  with\t his
\nmoney  to  the tune of about Rs. 5 1\/2 lakhs  acted  on\t the
\nrepresentations of the appellant and in belief of the  truth
\nthereof and whether those representations, when made were in
\nfact false to the knowledge of the appellant and whether the
\nappellant  had a dishonest intention from the outset.\tBoth
\nthe courts below have found these facts specifically against
\nthe  appellant in categorical terms.  These being  questions
\nof fact are no longer open to challenge in this Court before
\nus in an appeal on special leave.\n<\/p>\n
Learned counsel for the appellant accordingly raised  before
\nus the following contentions:\n<\/p>\n
1.The  appellant  is a Pakistani national, who,\t during\t the
\nentire period of the commission of the offence never stepped
\ninto  India and was only at Karachi.  Hence he committed  no
\noffence punishable under the Indian Penal Code and cannot be
\ntried by an Indian Court.\n<\/p>\n
341<\/span><\/p>\n
2.The  appellant  was brought over from\t England,  where  he
\nhappened  to  be, by virtue of\textradition  proceedings  in
\nconnection  with another offence, the’ trial for  which\t was
\nthen pending in the Sessions Court at Bombay and accordingly
\nhe could not be validly tried and convicted for a  different
\noffence like the present.\n<\/p>\n
3.   The various telegrams and letters relied upon by the
\nprosecution were held to have been proved on legally
\ninadmissible material.\n<\/p>\n
4.   The  charge being under s. 420 read with s. 34  of\t the
\nIndian Penal Code for alleged conjoint acts of the appellant
\nalong with the persons designated as accused 2, 3 and 4,  in
\nthe  complaint and the said three accused not  being  before
\nthe Court and the appellant not having been in Bombay at the
\ntime, the conviction is unsustainable.\n<\/p>\n
We  have heard elaborate arguments on all these matters\t but
\nhave   felt  satisfied\tthat  there  is\t no   substance\t  in
\ncontentions  2, 3 and 4 above.\tAccordingly we did not\tcall
\nupon the counsel for the State to reply to the same.  It is,
\ntherefore,  unnecessary\t to deal with them  at\tany  length.
\nThey will be disposed of in the first instance.
\nTo  understand\tcontention 3, it is convenient to  take\t the
\nletters\t and telegrams separately.  The letters\t which\thave
\nbeen relied on for the prosecution fall under the  following
\ncategories.\n<\/p>\n
1.   Letters  from the appellant either to Jasawalla  or  to
\nthe complainant.\n<\/p>\n
2.   Letters   to  the\tappellant  from\t Jasawalla  or\t the
\ncomplainant.\n<\/p>\n
Most of the letters from the appellant relied upon bear what
\npurport to be his signatures.  A few of them are admitted by
\nthe  appellant.\t  There\t are  also  a  few  letters  without
\nsignatures.  Both the complainant and Jasawalla speak to the
\nsignatures  on\tthe  other letters.  The  objection  of\t the
\nlearned\t counsel for the appellant is that neither  of\tthem
\nhas actually seen the appellant write any of the letters nor
\nare  they shown to have such intimate acquaintance with\t his
\ncorrespondence,
\n342<\/span>
\nas  to\tenable\tthem to speak to the  genuineness  of  these
\nsignatures.   Learned  trial Judge as well  as\tthe  learned
\nJudges\tof  the\t High  Court  have  found  that\t there\twere
\nsufficient number of admitted or proved letters which  might
\nwell  enable Jasawalla and the complainant to  identify\t the
\nsignatures  of the appellant in the disputed letters.\tThey
\nalso  laid  stress  substantially on  the  contents  of\t the
\nvarious\t letters,  in the context of the other\tletters\t and
\ntelegrams to which they purport to be replies and which form
\nthe chain of correspondence as indicating the genuineness of
\nthe  disputed  letters.\t Learned counsel  objected  to\tthis
\napproach on a question of proof.  We are, however, unable to
\nsee  any  objection.   The proof of  the  genuineness  of  a
\ndocument  is proof of the authorship of the document and  is
\nproof  of a fact like that of any other fact.  The  evidence
\nrelating  thereto may be direct or circumstantial.   It\t may
\nconsist of direct evidence of a person who saw the  document
\nbeing  written\tor the signature being affixed.\t It  may  be
\nproof  of  the\thandwriting  of\t the  contents,\t or  of\t the
\nsignature, by one of the modes provided in ss. 45 and 47  of
\nthe Indian Evidence Act.  It may also be proved by  internal
\nevidence  afforded  by the contents of the  document.\tThis
\nlast  mode of proof by the contents may be  of\tconsiderable
\nvalue where the disputed document purports to be a link in a
\nchain  of correspondence, some links in which are proved  to
\nthe  satisfaction  of the court.  In such  a  situation\t the
\nperson who is the recipient of the document, be it either  a
\nletter or a telegram, would be in a reasonably good position
\nboth with reference to his prior knowledge of the writing or
\nthe  signature of the alleged sender, limited though it\t may
\nbe, as also his knowledge of the subject matter of the chain
\nof  correspondence,  to\t speak to  its\tauthorship.   In  an
\nappropriate  case  the court may also be in  a\tposition  to
\njudge whether the document constitutes a genuine link in the
\nchain\tof   correspondence  and  thus\tto   determine\t its
\nauthorship.   We  are  unable, therefore, to  say  that\t the
\napproach  adopted  by the courts below in  arriving  at\t the
\nconclusion  that  the  letters are genuine is  open  to\t any
\nserious legal objection.  The question, if any, can
\n343<\/span>
\nonly  be  as to the adequacy of the material  on  which\t the
\nconclusion  as to the genuineness of the letters is  arrived
\nat.   That however is a matter which we cannot permit to  be
\ncanvassed before us.\n<\/p>\n
A  few\tof the letters said to have been received  from\t the
\nappellant,  as\tstated above, do not  bear  his\t signatures.
\nThese were held to have been proved by the,,  circumstantial
\nevidence as pointed out and we see no objection thereto.
\nThe  next objection is as regards the letters said  to\thave
\nbeen sent by Jasawalla and the complainant to the appellant.
\nJasawalla  and the complainant have produced copies  of\t the
\noriginals.   It\t has been contended that  these\t copies\t are
\ninadmissible.  But such a contention is obviously untenable.
\nThe  appellant cannot be expected to produce them, if  true,
\nsince  be disputes them.  There is also the evidence of\t his
\nex-employee, Sequeria, that the originals were received\t but
\ntaken  away by his son.\t The main contention in\t respect  of
\nthese  letters\tis  that there is no proof  that  they\twere
\nreceived by the appellant at Karachi.  It is contended\tthat
\nevidence  given by either Jasawalla or the complainant\tthat
\nthe  originals\twere written and posted is not\trelevant  to
\nshow that the same have been received.\tIt is urged that the
\nproof  of  mere\t posting  of a\tletter\tis  not\t presumptive
\nevidence  of  the receipt thereof by  the  addressee  unless
\nthere is also proof that the original has not been  returned
\nfrom  the Dead Letter Office.  Illustration (b) to s. 16  of
\nthe Indian Evidence Act, 1872, is relied on for the  purpose
\nand  it\t is  urged that a combination of the  two  facts  is
\nrequired  to raise such a presumption.\tWe are\tquite  clear
\nthat  the  illustration only means that each  one  of  these
\nfacts  is  relevant.  It cannot be read as  indicating\tthat
\nwithout\t a  combination of these facts\tno  presumption\t can
\narise.\t‘Indeed that section with the illustrations  thereto
\nhas nothing to do with presumptions but only with relevance.
\nSome  cases relating to this have been cited before us.\t  We
\nhave considered the same but it is unnecessary to deal\twith
\nthem.\n<\/p>\n
Next  taking  the question relating to\ttelegrams  the\tmain
\nobjection is as to the proof of the genuineness of
\n344<\/span>
\nthe  various telegrams said to have been received  from\t the
\nappellant.  In this case since we are largely concerned with
\nthe nature and contents of the representations said to\thave
\nbeen made by the accused to the complainant or to Jasawalla,
\nit  is obvious that what are relevant or important  are\t the
\ntelegraphic   messages\tdelivered  to  the  complainant\t  or
\nJasawalla  provided the authorship of the original  is\tmade
\nout.   These  messages\thave been proved  by  producing\t the
\nmessages actually handed over. to either of these persons or
\nthe  transit  copies  of  the  originals  recorded  at\t the
\nreceiving  end.\t The real objection, however, appears to  be
\nthat  there is no proof as to the appellant having been\t the
\nauthor\tof these messages.  It is true that under s.  88  of
\nthe  Evidence  Act  there is a\tpresumption  only  that\t the
\nmessage\t received  by  the addressee  corresponds  with\t the
\nmessage delivered for transmission at the office of  origin.
\nThere is no presumption as to the person who delivered\tsuch
\na  message  for\t transmission.\t But  here  again  proof  of
\nauthorship  of\tthe message need not be direct\tand  may  be
\ncircumstantial\tas has been explained above in the  case  of
\nletters.   The\tcontents of the messages  received,  in\t the
\ncontext\t of  the chain of correspondence  may  well  furnish
\nproof  of the authorship of the messages at the\t dispatching
\nend.   A  number of other minor objections  have  been\talso
\nraised\t before\t us  connected\twith  the  proof  of   these
\ntelegrams.   They have all been fully dealt with by  one  of
\nthe  learned  Judges  of  the High  Court.   Most  of  these
\nobjections ate unsubstantial and it is enough to say that we
\nare  in general agreement with the conclusions of  the\tHigh
\nCourt in this matter.\n<\/p>\n
As  regards both the letters and the telegrams\tconsiderable
\nargument  was  attempted before us as to the mode  in  which
\nthey were let in for proof in the course of the\t examination
\nof  the\t witnesses.   But  in  the  absence  of\t any   clear
\nindication  on the record that any objection in that  behalf
\nwas  seriously taken, we could not permit any  challenge  in
\nthis behalf.\n<\/p>\n
We  may\t add  that as regards the  main\t objection  both  in
\nrespect\t of letters as well as telegrams, viz., the  use  of
\nthe contents of the disputed documents, for proof
\n345<\/span>
\nthereof\t there is this that could be said, viz., in view  of
\nthe fact that quite a large number of the documents are\t not
\nadmitted  and only a few have been held to be’\tadmitted  or
\nindubitably  proved it may have been a question open  before
\nthe  Court  of\tappeal whether the  internal  evidence\twith
\nreference to such a large mass of correspondence  subtantial
\nportion\t of  which is disputed was adequate to arrive  at  a
\nsatisfactory  conclusion  as  to the  genuineness  of  these
\ndocuments.   That question is not open before us.  But\teven
\nif we were inclined to go into this, it was well nigh impos-
\nsible, having regard to the fact that most of the  documents
\nrelied\tupon  by the trial court as well  as  the  appellate
\ncourt  have  not  been\tprinted in  the\t record\t before\t us.
\nHowever, there is no reason to think that the learned Judges
\nwho  have  considered the matter very elaborately  have\t not
\ncome  to  a satisfactory conclusion.  They  have  acted\t not
\nmerely on the internal evidence of the documents but also on
\nthe  oral evidence of three main witnesses, viz.,  the\tcom-
\nplainant,  Jasawalla  and  Sequeria, each  set\tof  evidence
\nhaving\tbeen considered as affirmative of the other  and  in
\nthe  aggregate\tas proving the authorship  of  the  disputed
\ndocuments.\n<\/p>\n
The  fourth  contention raised by  the\tappellant’s  counsel
\nrelates to the validity of the conviction under s. 420\/34 of
\nthe Indian Penal Code.\tLearned counsel argued that  persons
\ndesignated as accused 2, 3 and 4 in the complaint, were\t all
\nin Bombay and the appellant in Karachi and that therefore no
\nconjoint offence could be committed by them within the mean-
\ning  of s. 34 of the Indian Penal Code.\t He relies upon\t the
\ndictum\tin  Shreekantiah Ramayya Munipalli v. The  State  of
\nBombay<\/a>\t(1)  to\t the effect that it is\tessential  that\t the
\naccused\t should join in the ” actual doing ” of the act\t and
\nnot  merely in planning its perpetration.  We do  not  think
\nthat case or the dictum therein relied on, have any  bearing
\non  the facts of the present case.  It is also necessary  to
\nobserve that what in fact has been found in this case is the
\ncommission of the offence by the appellant himself.   Though
\nthe  trial Magistrate and one of the learned Judges  of\t the
\nHigh
\n(1)  [1955] 1 S.C.R. 177, 1188.\n<\/p>\n
346<\/span><\/p>\n
Court  referred to the conviction as a conviction  under  s.
\n420\/34 of the Indian Penal Code, the actual findings support
\na  conviction of the appellant under s. 420 itself.  Such  a
\nconviction would be valid though the charge is under s.\t 420
\nread  with  s.\t34 of the Indian  Penal\t Code,\t(See  Willie
\n(William) Slaney v. The State of Madhya Pradesh<\/a> (1),  unless
\nprejudice is shown to have occurred.\n<\/p>\n
Thus there is no substance in contentions 3 and 4.
\nContention  No. 2 arises under the following  circumstances.
\nIt  appears  that the appellant\t was  previously  undergoing
\ntrial  in the Court of the Sessions Judge at Bombay for\t the
\noffences of forgery and fraud and was on bail in  connection
\nwith  that trial.  While thus on bail he fled away first  to
\nPakistan and from there to England.  The Indian\t authorities
\nmade  an  application to the  Metropolitan  Magistrate,\t Bow
\nStreet,\t under\tthe Fugitive Offenders Act,  for  his  being
\narrested  and surrendered.  That application was granted  by
\nthe  Magistrate.  Thereupon the appellant moved\t the  Queens
\nBench  Division of the High Court in England for a  writ  of
\nhabeas\tcorpus\tchallenging the validity of his\t arrest\t and
\nsurrender  to  the  Indian authorities.\t  Judgment  of\tLord
\nGoddard\t C. J. dealing with this matter is reported  as\t Re.
\nGovernment  of\tIndia  and  Mubarak  Ali  Ahmed\t (2).\t The
\napplication  was dismissed and the order for surrender\tmade
\nunder  the  Fugitive Offenders Act was upheld.\t It  appears
\nthat  when  he was brought back to Bombay and  was  in\tjail
\ncustody\t with reference to the resumed sessions\t trial,\t the
\ncomplainant got to know about it and filed his complaint  on
\nJune  30., 1952.  The Presidency Magistrate took it  on\t his
\nfile  and  issued warrant against the accused  and  had\t him
\nbrought\t up  before  his  court\t in  due  course  for  trial
\n(presumably  after the sessions trial was  completed).\t The
\nobjection raised before us is that the appellant having been
\nsurrendered by the order of the Metropolitan Magistrate only
\nfor  the  sessions trial which was pending  against  him  in
\nBombay, he could not be tried for any other offence said  to
\nhave been committed by him in India.\n<\/p>\n
(1) [1955] 2 S.C.R. 1140.\n<\/p>\n
(2) [1952] 1 All E.R. 1060.\n<\/p>\n
347<\/span><\/p>\n
Learned\t counsel relies on s. 3(2) of the  English  Extradi-
\ntion Act, 1870 (33 & 34 Vict. c. 52) which shows that, it is
\ncontemplated thereby that a fugitive criminal’ who has\tbeen
\nsurrendered  under  the\t Extradition Act  in  respect  of  a
\nparticular offence should not be tried for any other offence
\nuntil he has been restored or has been given an\t opportunity
\nof returning.  This section, however, has no bearing in\t the
\npresent\t case, since, as already stated, the  appellant\t was
\nsurrendered under the Fugitive Offenders Act which  contains
\nno analogous provision.\t Section 8 of the Fugitive Offenders
\nAct  only  provides  for an  optional  repatriation  of\t the
\nsurrendered person at his request if he is acquitted of\t the
\noffence for which he is surrendered.  Learned counsel  urges
\nthat  the  principle  underlying  s.  3(2)  of\tthe  English
\nExtradition  Act  is  a general one and that  it  should  be
\napplied\t by analogy also to a surrender under  the  Fugitive
\nOffenders Act.\tWe are unable to accede to that\t contention.
\nIt  may also be mentioned that even if his arrest  in  India
\nfor the purpose of a trial in respect of a fresh offence  is
\nconsidered  not\t to  be justified,  this  by  itself  cannot
\nvitiate\t the conviction following upon his trial.   This  is
\nnow  well-settled  by  a series of  cases.  (See  Parbhu  v.
\nEmperor(1)  ; Lumbhardar Zutshi v. The King (2) ; and H.  N.
\nRishbud\t v.  The State of Delhi (3 ). This  contention\tmust
\naccordingly be overruled.\n<\/p>\n
We are left, therefore, with the first contention raised  by
\nthe  learned  counsel for the appellant which  is  the\tonly
\nsubstantial   question\tthat  has  been\t raised\t before\t  us
\nrequiring careful consideration.\n<\/p>\n
The  first contention is raised on the assumption  that\t the
\nappellant is a Pakistani national.  At the outset, it may be
\nstated that it is doubtful whether in fact the appellant  at
\nthe  time  of the offence could be  considered\ta  Pakistani
\nnational.   The complainant asserted in his complaint,\tthat
\nhe  came to know the appellant to be an Indian\tcitizen\t and
\ndescribed  him\tas hailing from Hyderabad  (Deccan)  and  as
\nhaving absconded to Pakistan and from there to England.\t In
\n(1)  A.I.R. (1944) P.C. 73.\n<\/p>\n
(2)  A.I.R. (1950) P.C. 26
\n45<\/span>
\n(3) (1955) 1 S.C R. 1150, 1 163.\n<\/p>\n
348<\/span><\/p>\n
a long written-statement filed after the prosecution  closed
\nits case, the appellant himself gave details of his previous
\nhistory\t from  the year 1928.  He stated that  he  became  a
\nGraduate  with Honours from the Punjab University  in  1928,
\nthat  he  joined the Indian Finance Service  and  served  in
\nvarious capacities and at various places, that he ultimately
\nresigned  from the Government service in 1943 and joined  an
\nindustrial concern at Hyderabad (Deccan), that he did a\t lot
\nof business there and that he entered into a large  business
\ncontract with the Government of Hyderabad, which was revived
\nby  the\t Military Government after the\tPolice\tAction.\t  He
\nwinds  up  the narration of his previous  history  with\t the
\nfollowing significant statement.\n<\/p>\n
”  The\tcontract was satisfactorily fulfilled  prior  to  my
\nmigration to Pakistan in July, 1950.  ”\n<\/p>\n
This  is  a categorical statement of the  appellant  himself
\nwhich shows that he continued to be in India till July 1950.
\nIf  so, it appears _prima facie that by virtue of Art. 5  of
\nthe Constitution read with Art. 7 thereof, he was a  citizen
\nof India on the date of the Constitution and continued to be
\nso  at the date of the offence in July-August, 1951,  unless
\nhe  shows  that\t under\tArt.  9\t of  the  Constitution,\t  he
\nvoluntarily  acquired  the citizenship of a  foreign  State.
\nPrima facie mere migration to Pakistan is not enough to show
\nthat he bad lost Indian citizenship.  This question has\t not
\nbeen considered or dealt with in the courts below,  probably
\nbecause\t it  was not properly raised at\t the  early  stages.
\nBeing  a fundamental objection to jurisdiction\tthis  should
\nhave been raised at the trial by the appellant (accused), at
\nany  rate, soon after the charge was framed.  We might\twell
\nhave   declined,  therefore,  to  permit  the  question\t  of
\njurisdiction  in this specific form to be argued before\t us.
\nBut the learned Judges of the High Court have entertained it
\nand  dealt  with  it  on  the  stated  assumption  that\t the
\nappellant   is\ta  Pakistani  national.\t  To  overrule\t the
\nobjection at this stage without finally deciding whether the
\nappellant continues to be an Indian citizen (after remanding
\nfor  additional finding, if need be,) would not be  fair  or
\nsatisfactory.  In the circumstances we have felt it
\n349<\/span>
\ndesirable  to  allow  arguments\t to  proceed  on  the\tsame
\nassumption  which the High Court has made.   We,  therefore,
\nproceed to deal with it.\n<\/p>\n
The  learned  Judges of the High Court decided\tagainst\t the
\nobjection  of  the appellant as to the jurisdiction  of\t the
\ncourt to try him for the alleged offence relying on s. 179
\nof the Code of Criminal Procedure which provides as follows:
\n” When a person is accused of the commission of any  offence
\nby  reason  of\tanything which has been\t done,\tand  of\t any
\nconsequence  which has ensued, such offence may be  inquired
\ninto  or tried by a Court within the local limits  of  whose
\njurisdiction  any  such\t thing has been done,  or  any\tsuch
\nconsequence has ensued.” In view of the above provision, the
\nlearned Judges say as follows :\n<\/p>\n
” Even upon the footing that the representations were  made,
\nor  the deception was practised by the appellant,  while  he
\nwas  in Pakistan, the consequence of the deception,  namely,
\nthe delivery of the property, took place in Bombay.  ”
\nThey  held that the appellant could, therefore, be tried  in
\nBombay\tin respect of the delivery of the money\t in  Bombay.
\nThe  argument  of the learned counsel for the  appellant  is
\nthat  s. 179 of the Code of Criminal Procedure\tproceeds  on
\nthe assumption that the person to be tried is  substantively
\nliable\tfor an offence under the Indian Penal Code and\tthat
\ns. 179 prescribes the place of trial but does not create the
\nliability.  He urges that since the appellant is a Pakistani
\nnational  who  was not physically present at Bombay  at\t any
\nstage  of  the commission of the offence, the  Indian  Penal
\nCode has no application to him.\t He is therefore not  liable
\nfor an offence under the Penal Code and hence is not triable
\nunder s. 179 of the Code of Criminal Procedure.\t It  appears
\nfrom  s.  5(1) of the Code of Criminal\tProcedure  that\t the
\nprovisions  of the said Code relating to the place of  trial
\nassume\tthe  existence of substantive  liability  under\t the
\nIndian Penal Code or under any other law.  Section 5(1) says
\nthat  ”\t all offences under the Indian Penal Code  shall  be
\ninvestigated, inquired into, tried and otherwise dealt
\n\t\t\t    350<\/span>
\nwith according to the provisions hereinafter contained.” Now
\nthe  point raised by the learned counsel is that to  hold  a
\nperson in the position of appellant substantively liable for
\nthe offence charged against him in the circumstances of this
\ncase,  would  be to give extraterritorial operation  to\t the
\nprovisions of the Indian Penal Code.  He contends that\tsuch
\nextra-territorial  operation  can  only\t be  by\t reason\t  of
\nspecific legislation in this behalf and does not arise\tfrom
\nany general provisions of the Indian Penal Code.
\nTo deal with this contention, it is necessary to  appreciate
\nclearly the basic facts found in this case.  The offence  of
\ncheating under s. 420 of the Penal Code as defined in s. 415
\nof the Code has two essential ingredients, viz., (1) deceit,
\ni.e., dishonest or fraudulent misrepresentation to a person,
\nand  (2)  the  inducing of that person\tthereby\t to  deliver
\nproperty.   In the present case the volume of  evidence\t set
\nout  above  and\t the facts found to be true  show  that\t the
\nappellant  though at Karachi was making\t representations  to
\nthe  complainant  through letters, telegrams  and  telephone
\ntalks, some times directly to the complainant and some times
\nthrough Jasawalla, that he had ready stock of rice, that  he
\nhad reserved shipping space and that on receipt of money  he
\nwould  be in a position to ship the rice  forthwith.   These
\nrepresentations\t were  made to the  complainant\t at  Bombay,
\nnotwithstanding\t  that\t the  appellant\t  was\tmaking\t the
\nrepresentations\t from Karachi.\tThe position is quite  clear
\nwhere the representations were made through the trunk phone.
\nThe  statement\tof the appellant at the Karachi-end  of\t the
\ntelephone  becomes a representation to the complainant\tonly
\nwhen it reaches cognition of the complainant at the  Bombay-
\nend.   This  indeed  has not been  disputed.   It  makes  no
\ndifference in principle if the representations have in\tsome
\nstages\tbeen  conveyed\tby telegrams or by  letters  to\t the
\ncomplainant  directly  or  to some one\tof  the\t appellant’s
\nagents, including Jasawalla in that category.  There is also
\nno question that it is as a result of these  representations
\nthat  the complainant’ parted with his money to the tune  of
\nabout Rs. 5 1\/2 lakhs on three different dates.\t It has been
\nfound that the
\n351<\/span>
\nrepresentations\t were  made without being supported  by\t the
\nrequisite facts and that this was so to the knowledge of the
\nappellant and that the representations were so made with  an
\ninitial\t dishonest  intention.\tOn these facts it  is  clear
\nthat  all the ingredients necessary for finding the  offence
\nof  cheating under s. 420 read with s. 415 have occurred  at
\nBombay.\t  In that sense the entire offence was committed  at
\nBombay\tand  not merely the consequence, viz.,\tdelivery  of
\nmoney,\twhich  was one of the ingredients  of  the  offence.
\nLearned\t  counsel  for\tthe  appellant\thas  not   seriously
\ncontested  this\t position.  But he urges that  even  so\t the
\nappellant  who was not corporeally present in India  at\t the
\nrelevant time does not fall within the purview of the Indian
\nPenal Code.  Now there can be no doubt that prima facie\t the
\nIndian Penal Code is intended to deal with all unlawful acts
\nand  omissions defined to be offences and  committed  within
\nIndia  and  to\tprovide for the punishment  thereof  of\t the
\nperson\tor persons found guilty therefor.  This is  implicit
\nin the preamble and s. 2 of the Indian Penal Code.  What is,
\ntherefore,  to\tbe seen is whether there is  any  reason  to
\nthink  that a foreigner not corporeally present at the\ttime
\nof  the commission of the offence does not fall\t within\t the
\nrange  of  persons punishable therefor under the  Code.\t  It
\nappears to us that the answer must be in the negative unless
\nthere  is  any\trecognised legal  principle  on\t which\tsuch
\nexclusion can be founded or the language of the Code compels
\nsuch  a\t construction.\t It is\tstrenuously  urged  that  to
\nconsider  a  foreigner guilty under the Penal  Code  for  an
\noffence committed in India though attributable to him and to
\npunish\thim therefor in a case where he is  not\t corporeally
\npresent in India for the commission of the offence, would be
\nto give extraterritorial operation to the Indian Penal\tCode
\nand   that  an\tinterpretation\twhich  brings  such   extra-
\nterritorial  operation\tmust be avoided.  The  case  of\t the
\nPrivy  Council in Macleod v. Attorney-General for New  South
\nWales(1)  is relied upon.  But this argument is based  on  a
\nmisconception.\t The  fastening of criminal liability  on  a
\nforeigner in respect of culpable acts or omissions
\n(1)  (1891) A.C. 455.\n<\/p>\n
352<\/span><\/p>\n
in   India  which  are\tjuridically  attributable   to\t him
\nnotwithstanding that he is corporeally present outside India
\nat the time, is not to give any extra-territorial  operation
\nto  the\t law;  for it is in respect  of\t an  offence,  whose
\nlocality is in India, that the liability is fastened on\t the
\nperson\tand  the punishment is awarded by the  law,  if\t his
\npresence  in India for the trial can be secured.  That\tthis
\nis part of the ordinary jurisdiction of a Municipal Court is
\nwell recognised in the common law of England as appears from
\nHalsbury’s Laws of England (Third Edition) Vol. 10, p.\t318.
\nParagraph  580 therein shows that the exercise\tof  criminal
\njurisdiction  at common law is limited to  crimes  committed
\nwithin\tthe  territorial  limits of England  and  para.\t 581
\nstates\tthe jurisdiction in respect of acts outside  English
\nterritory as follows:\n<\/p>\n
”  For the purposes of criminal jurisdiction, an act may  be
\nregarded  as  done within English  territory,  although\t the
\nperson\twho  did the act may be outside the  territory;\t for
\ninstance,  a person who, being abroad procures\tan  innocent
\nagent  or uses the post office to commit a crime in  England
\nis  deemed to commit an act in England.\t If a person,  being
\noutside England, initiates an offence, part of the essential
\nelements of which take effect in England, he is amenable  to
\nEnglish\t jurisdiction.\t It  appears that  even\t though\t the
\nperson who has initiated such an offence is a foreigner,  he
\ncan be tried if he subsequently comes to England.  ”
\nThus  the  exercise of criminal jurisdiction in\t such  cases
\nunder  the common law is exercise of municipal\tjurisdiction
\nand  much more so in a case like the present, where all\t the
\ningredients  of\t the  offence  occur  within  the  municipal
\nterritory.\n<\/p>\n
It  would be desirable at this stage to notice certain\twell
\nrecognised  concepts of International Law bearing on such  a
\nsituation.  Wheaton in his book on Elements of International
\nLaw  (Fourth  Edition)\tat p.  183,  dealing  with  criminal
\njurisdiction states as follows:\n<\/p>\n
By  the\t Common Law of England, which has been\tadopted,  in
\nthis  respect, in the United States, criminal  offences\t are
\nconsidered as altogether local, and are
\n353<\/span>
\njusticiable  only  by the courts of that country  where\t the
\noffence is committed.  ”\n<\/p>\n
At p. 182 thereof it is stated as follows:\n<\/p>\n
”  The\tjudicial power of every independent  State,  extends
\n(with\tthe   qualifications  mentioned\t earlier)   to\t the
\npunishment of all offences against the municipal laws of the
\nState, by whomsoever committed, within the territory.  ”
\nIn  Hackworth’s Digest of International Law (1941  Edition),
\nVol. 11, at p. 188 there is reference to opinions of certain
\neminent\t American  Judges.   It\t is  enough  to\t quote\t the
\nfollowing dictum of Holmes J. noticed therein :
\n“Acts  done outside a jurisdiction, but intended to  produce
\nand producing detrimental effects within it, justify a State
\nin punishing the cause of the harm as if he had been present
\nat  the effect, if the State should succeed in\tgetting\t him
\nwithin its power.  ”\n<\/p>\n
In Hyde’s International Law (Second Edition), Vol. 1, at  p.
\n798,  the  following  quotation from  the  judgment  of\t the
\npermanent Court of International Justice dated September  7,
\n1927,  in  the\tcase  relating\tto  S.\tS.  Lotus  is\tvery
\ninstructive:\n<\/p>\n
”  It is certain that the courts of many countries, even  of
\ncountries  which  have given their  criminal  legislation  a
\nstrictly  territorial character, interpret criminal  law  in
\nthe sense that offences, the authors of which at the  moment
\nof  commission\tare in the territory of another\t State,\t are
\nnevertheless to be regarded as having been committed in\t the
\nnational  territory, if one of the constituent\telements  of
\nthe  offence,  and more especially its effects,\t have  taken
\nplace there.  ”\n<\/p>\n
This  quotation is also noticed in Openheim’s  International
\nLaw (Eighth Ed.),   Vol.   1 at p. 332 in the footnote.\t  In
\nnoticing the provisions of International Law in this context
\nwe  are\t conscious  that what we have to deal  with  in\t the
\npresent\t case is a question merely of municipal law and\t not
\nof  any\t International\tLaw.   But as  is  seen\t above,\t the
\nprinciples recognised in
\n(1) Publications, Permanent Court of International  justice,
\nSeries A,
\nNos. 10, 23.\n<\/p>\n
354<\/span><\/p>\n
International Law in this behalf are virtually based on\t the
\nrecognition  of\t those principles in the  municipal  law  of
\nvarious\t countries  and\t is  really  part  of  the   general
\njurisprudence  relating\t to  criminal  responsibility  under
\nmunicipal  law.\t  No  doubt some of  the  above\t dicta\thave
\nreference  to offences actually committed outside the  State
\nby  foreigners and treated as offences committed within\t the
\nState  by specific legislation.\t But the principle  emerging
\ntherefrom  is  clear that once it is  treated  as  committed
\nwithin the State the fact that he is a foreigner corporeally
\npresent\t outside  at  the  time of  such  commission  is  no
\nobjection  to the exercise of municipal\t jurisdiction  under
\nthe  municipal\tlaw.   This emphasizes\tthe  principle\tthat
\nexercise of criminal jurisdiction depends on the locality of
\nthe  offence  and  not on the  nationality  of\tthe  alleged
\noffender   (except  in\ta  few\tspecified  cases   such\t  as
\nambassadors, Princes etc.).\n<\/p>\n
Learned\t counsel  for the appellant has\t relied\t on  various
\npassages in the judgment of Cockburn C.J. in the  well-known
\ncase  The  Queen v. Keyn (Franconia’s case)  (1).   Fourteen
\nlearned\t Judges\t participated  in that\tcase  and  the\tcase
\nappears to have been argued twice.  Eight of them  including
\nCockburn  C.J. formed the majority.  Undoubtedly  there\t are
\nvarious\t passages  in the judgment of  Cockburn\t C.J.  which
\n_prima\tfacie seem capable of being urged in favour  of\t the
\nappellant’s contention.\t In particular the following passage
\nat p. 235 may be noticed:\n<\/p>\n
“The  question\tis not whether the death  of  the  deceased,
\nwhich no doubt took place in a British ship, was the act  of
\nthe  defendant in such ship, but whether the  defendant,  at
\nthe  time  the\tact was done,  was  himself  within  British
\njurisdiction.”\n<\/p>\n
The  learned  Chief Justice, however, recognised at  p.\t 237
\nthat there were certain American decisions to the  contrary.
\nNow  the main debate in that case was whether the sea up  to
\nthree mile limit from the shore is part of British territory
\nor whether in respect of such three mile limit only  limited
\nand defined extra territorial British jurisdiction  extended
\nwhich did not
\n(1)  (1876) 2 Ex.D. 63.\n<\/p>\n
355<\/span><\/p>\n
include\t the  particular criminal  jurisdiction\t under\tcon-
\nsideration.  In respect of this question, as a result of the
\njudgment, the Parliament had to enact the Territorial Waters
\nJurisdiction  Act,  1878  (41 & 42 Vict., c.  73)  which  in
\nsubstance  overruled  the view of the majority\tand  of\t the
\nlearned Chief Justice on this point.  The main principle  of
\ncriminal jurisdiction, however, relevant for our purpose was
\nenunciated  in the minority judgment of Amphlett, J. A.,  at
\np.  118,  that\t“it  is the locality  of  the  offence\tthat
\ndetermines’ the jurisdiction ” implying by contrast that  it
\nis not the nationality of the offender.\n<\/p>\n
The question, however, that still remains for  consideration
\nis whether there is anything in the language of the sections
\nof  the Indian Penal Code relating to the general scheme  of
\nthe  Code  which compels the construction that\tthe  various
\nsections  of the Penal Code are not intended to apply  to  a
\nforeigner  who has committed an offence in India  while\t not
\nbeing  corporeally  present therein at the time.   For\tthis
\npurpose\t we are not concerned with such of the\tsections  of
\nthe  Penal Code, if any, which indicate the actual  presence
\nof the culprit as a necessary ingredient of the offence.  Of
\ncourse,\t for  such  offences a foreigner  ex  hypothesi\t not
\npresent\t at  the time in India cannot be guilty.   The\tonly
\ngeneral sections of the Indian Penal Code which indicate its
\nscheme\tin this behalf are ss. 2,3, and 4 and as they  stand
\nat present, they are as follows:\n<\/p>\n
”  2. Every person shall be liable to punishment under\tthis
\nCode and not otherwise for every act or omission contrary to
\nthe  provisions thereof, of which he shall be guilty  within
\nIndia.\n<\/p>\n
3.   Any  person liable, by any Indian law, to be tried\t for
\nan  offence  committed\tbeyond India  shall  be\t dealt\twith
\naccording  to  the  provisions\tof this\t Code  for  any\t act
\ncommitted beyond India in the same manner as if such act had
\nbeen committed within India.\n<\/p>\n
4.   The  provisions of this Code apply also to any  offence
\ncommitted by-\n<\/p>\n
(1)  any  citizen of India in any place without\t and  beyond
\nIndia;\n<\/p>\n
46<\/span>
\n356<\/span><\/p>\n
(2)  any person on any ship or aircraft registered in  India
\nwherever it may be.\n<\/p>\n
Explanation:-In\t this  section the word\t ‘offence’  includes
\nevery  act  committed outside India which, if  committed  in
\nIndia, would be punishable under this Code.”
\nSections  3  and 4 deal with offences committed\t beyond\t the
\nterritorial  limits  of\t India and s.  2  obviously  and  by
\ncontrast  refers  to offences committed\t within\t India.\t  It
\nappears\t clear\tthat  it is s. 2 that has to  be  looked  to
\ndetermine  the liability and punishment of persons who\thave
\ncommitted  offences  within  India.   The  section   asserts
\ncategorically\tthat  every  person  shall  be\t liable\t  to
\npunishment under the Code for every act or omission contrary
\nto  the\t provisions  of the Code and of which  he  shall  be
\nguilty within India.  This recognises the general  principle
\nof criminal jurisdiction over persons with reference to\t the
\nlocality  of  the offence committed by\tthem,  being  within
\nIndia.\t The use of the phrase ” every person ” in s.  2  as
\ncontrasted with the use of the phrase “any person ” in s.  3
\nas  well as s. 4 (2) of the Code is indicative of  the\tidea
\nthat  to the extent that the guilt for an offence  committed
\nwithin\tIndia  can  be attributed to a\tperson,\t every\tsuch
\nperson without exception is liable for punishment under\t the
\nCode.\tLearned counsel for the appellant suggests that\t the
\nphrase ” within India ” towards the end of s. 2 must be read
\nwith the phrase ” every person ” at the commencement thereof
\nBut this is far-fetched and untenable.\tThe plain meaning of
\nthe  phrase  ”\tevery person ” is that\tit  comprehends\t all
\npersons without limitation and irrespective of\tnationality,
\nallegiance,  rank,  status, caste, colour  or  creed.\tThis
\nsection\t must  be understood as comprehending  every  person
\nwithout\t exception barring such as may be  specially  exempt
\nfrom criminal proceedings or punishment thereunder by virtue
\nof  the Constitution (See Art. 361 (2) of the  Constitution)
\nor any statutory provisions or some wellrecognised principle
\nof   international   law,  such\t  as   foreign\t sovereigns,
\nambassadors, diplomatic agents and so forth, accepted in the
\nmunicipal law.\n<\/p>\n
357<\/span><\/p>\n
Learned\t counsel drew our attention to a number of  sections
\nin the Penal Code, viz., ss. 108A, 177, 203, 212, 216,\t216A
\nand 236.  The argument based on reference to these  sections
\nis  that wherever the legislature in framing the Penal\tCode
\nwanted\tto  legislate about anything that has  reference  to
\nsomething done outside India it has specifically said so and
\nthat  therefore it may be expected that if it  was  intended
\nthat the Penal Code would refer to a person actually present
\noutside India at the time of the commission of the  offence,
\nit would have specifically said so.  We are unable to accept
\nthis argument.\tThese sections have reference to  particular
\ndifficulties  which  arose  with reference to  what  may  be
\ncalled,\t a related offence being committed in India  in\t the
\ncontext\t  of  the  principal  offence  itself  having\tbeen
\ncommitted  outside  India-that is  for\tinstance,  abetment,
\ngiving\tfalse  information and harbouring  within  India  in
\nrespect of offences outside India.  Questions arose in\tsuch
\ncases as to whether any criminal liability would arise\twith
\nreference  to  the related offence,  the  principal  offence
\nitself not being punishable in India and these sections were
\nintended  to  rectify  the lacunas.  On the  other  hand,  a
\nreference  to s. 3 of the Code clearly indicates that it  is
\nimplicit  therein  that a foreigner who commits\t an  offence
\nwithin\tIndia is guilty and can be punished as such  without
\nany limitation as to his corporeal presence in India at\t the
\ntime.  For if it were not so, the legal fiction implicit  in
\nthe phrase “as if such act had been committed within  India”
\nin s. 3 would not have been limited to the supposition\tthat
\nsuch  act  had been committed within India, but\t would\thave
\nextended  also to a fiction as to his physical\tpresence  at
\nthe time in India.\n<\/p>\n
In the argument before us, there has been some debate as  to
\nwhat exactly is the implication of the clause ” of which  he
\nshall  be guilty within India ” in s. 2 of the Code.  It  is
\nunnecessary  to come to any definite conclusion\t in  respect
\nthereto.   But\tit  is clear that it does  not\tsupport\t the
\ncontention of the appellant’s counsel.\tWe have,  therefore,
\nno doubt that on a plain reading of s. 2 of the Penal  Code,
\nthe Code does
\n358<\/span>
\napply  to  a foreigner who has committed an  offence  within
\nIndia  notwithstanding\tthat  he  was  corporeally   present
\noutside.\n<\/p>\n
It  has\t next  been urged before us  that  the\texercise  of
\njurisdiction over a foreigner by municipal courts depends on
\nthe theory of temporary allegiance to the State by reason of
\nhis  entry  into  the  State,  which  carries  with  it\t the
\nprotection of its laws and therefore his submission thereto.
\nDicta from some of the decided cases have been cited  before
\nus.  It is unnecessary to deal with any of those cases.\t  On
\nan  examination\t of  those  cases  it  will  be\t found\tthat
\nallegiance,  temporary or otherwise, has not been laid\tdown
\nanywhere  as  a limiting principle in  respect\tof  criminal
\njurisdiction, which is primarily concerned with questions of
\nsecurity of the State and of the citizens of the State.
\nA  number  of early cases of the High Courts in\t India\thave
\nbeen  brought lo our notice as bearing on the  question\t now
\nunder  consideration. (See Reg. v. Elmstone, Whitwell (1)  ;
\nReg. v. Pirtai (2) ; Mussummat Kishen Kour v. The Crown\t (3)
\n; and Gokaldas Amarsee v. Emperor (4).\tAs against them\t may
\nbe  noticed the case in Emperor v. Chhotalal Babar (5).\t  It
\nis unnecessary to consider them at any length.\t Undoubtedly
\nsome  of them seem to support the view pressed before us  on
\nbehalf\tof the appellant that criminal\tjurisdiction  cannot
\nextend to foreigners outside the State.\t These, however, are
\ndecisions  rendered  at a time when the\t competence  of\t the
\nIndian\tLegislature was considered somewhat  limited,  under
\nthe  influence\tof  the decisions like\tthose  in  Macleod’s
\ncase(1)\t in  spite of the decision in Queen  v.\t Burah\t(1).
\nHowever\t that  may be these concepts are no  longer  tenable
\nafter India became a Dominion by the Indian Independence Act
\nof  1947 and after it became an independent  free  sovereign
\nrepublic  under the present Constitution.  It is  enough  to
\nrefer to the case of Croft v. Dunphy(1) and to the  decision
\nof Spens, C.J., in Governor-General v. Raleigh
\n(1)  (1870)  7 Bom. H.C.R. 89 (Cr.  Ca.).(5)  (1912)  I.L.R.
\n36 Bom. 524.\n<\/p>\n
(2) (1873) 10 Bom. H.C.R. 356.\t   (6) (1891) A.C. 455.
\n(3) (1878) 13 P.R. 49\t (7) (1878) 3 A.C. 889.\n<\/p>\n
(Criminal judgments).\t (8) (1933) A.C. 156.
\n(4)  (1934) 35 Cr.L.J. 585.\n<\/p>\n
359<\/span><\/p>\n
Investment (1).\t In the latter case Spens, C.J.,  indicates.
\nthat  there has been considerable change in the\t concept  of
\nthe doctrine of extra-territorial legislation, subsequent to
\nMacleod’s  case (2) and the criticism of Macleod’s case\t (2)
\nin  certain  Canadian  decisions and of\t the  Privy  Council
\nitself has been adverted to.\n<\/p>\n
Learned counsel invited our attention to a passage from\t the
\nreport\tof the Indian Law Commissioners quoted at p. 274  of
\nRatanlal’s  Law of Crimes (Eighteenth Ed.). It is enough  to
\nsay  that though this quotation may be valuable as a  matter
\nof  history,  it  cannot  be  a\t legitimate  guide  for\t the
\nconstruction  of  the section.\tThat  construction  must  be
\nbased  on  the\tmeaning of the words used,  to\tbe  gathered
\naccording  to  the ordinary rules of interpretation  and  in
\nconsonance   with  the\tgenerally  accepted  principles\t  of
\nexercise of criminal jurisdiction.  It is not necessary\t and
\nindeed not permissible to construe the Indian Penal Code  at
\nthe  present day in accordance with the notions of  criminal
\njurisdiction  prevailing  at  the time\twhen  the  Code\t was
\nenacted.   The\tnotions relating to this  matter  have\tvery
\nconsiderably  changed between then and now during  nearly  a
\ncentury that has elapsed.  It is legitimate to construe\t the
\nCode  with reference to the modern needs, wherever  this  is
\npermissible, unless there is anything in the Code or in\t any
\nparticular section to indicate the contrary.
\nAfter  giving  our careful consideration  to  the  questions
\nraised before us, we are clearly of the opinion that even on
\nthe assumption that the appellant has ceased to be an Indian
\ncitizen\t and  was a Pakistani national at the  time  of\t the
\ncommission  of\tthe  offence, he must  be  held\t guilty\t and
\npunished under the Indian Penal Code notwithstanding his not
\nbeing corporeally present in India at the time.
\nWe have been asked to consider the question of sentence.  As
\nhas been stated ,it the outset the substantive sentences  of
\nimprisonment  are  two\tyears tinder  the  first  count\t and
\ntwenty-two  months  under the second.\tThe  sentences\twere
\nconcurrent on the second
\n(1) A.I.R. (1944) F.C. 51, 60,61.\n<\/p>\n
(2) (1891) A.C. 455.\n<\/p>\n
360<\/span><\/p>\n
and third counts.  As a result, the total imprisonment which
\nhas been awarded against the appellant would be a period  of
\nthree years and ten months.  We are not prepared to say that
\nthe discretion of the trial Court in awarding that  sentence
\nhas been wrongly exercised.\n<\/p>\n
The appeal is accordingly dismissed.\n<\/p>\n
Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mobarik Ali Ahmed vs The State Of Bombay on 6 September, 1957 Equivalent citations: 1957 AIR 857, 1958 SCR 328 Author: B Jagannadhadas Bench: Jagannadhadas, B. 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-70922","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMobarik Ali Ahmed vs The State Of Bombay on 6 September, 1957 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mobarik-ali-ahmed-vs-the-state-of-bombay-on-6-september-1957\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mobarik Ali Ahmed vs The State Of Bombay on 6 September, 1957 - 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