12 October 1954
Supreme Court


Case number: Appeal (crl.) 90 of 1952






DATE OF JUDGMENT: 12/10/1954


CITATION:  1955 AIR   36            1955 SCR  (1) 697  CITATOR INFO :  R          1966 SC1614  (7)  RF         1991 SC1886  (9)

ACT:      Offence committed by a person in Pakistan -Migration to India   and  acquiring  domicil  therein-Courts  in   India- Jurisdiction  Trial-Indian Penal Code (Act XLV of 1860),  s. 4-Criminal  Procedure Code (Act V of 1898), s.  188-Whether- apply under the circumstances-Domicil, definition of.

HEADNOTE:       A person accused of an offence under the Indian  Penal Code  and committed in a district which after the  partition of  India became part of Pakistan cannot be tried  for  that offence by a Criminal Court in India after his migration  to India  and acquiring thereafter the status of a  citizen  of India.      The  fact  that after the commission of  an  offence  a person  becomes  domiciled in another country,  or  acquires citizenship  of that State does not confer  jurisdiction  on the  Court  of  that  country  retrospectively  for   trying offences committed and completed at a time when that  person was  neither  the  national  of  that  country  nor  was  he domiciled there.     According  to section 4 ’of the Indian -Penal  Code  and section 188 of the Code of Criminal Procedure if at the time of the commission of the offence the person committing it is a  citizen  of India then even if the offence  is  committed outside, India he is subject to 698 the jurisdiction of the Courts in India, as qua citizens the jurisdiction of Courts is not lost by reason of the Venue of an  offence.  If, of however, at the time of the  commission of the offence the accused person is not a citizen of  India these sections have no application at all.     The  term  "domicil"  does  not  admit  of  an  absolute definition.   The simplest. definition of domicil  is:  That place  is  properly  the domicil of a person  in  which  his habitation  is  fixed  without  any  present  intention   of



removing  therefrom.  The fact is that the term domicil  can be illustrated but cannot be defined.    Craignish  v. Craignish ([1892] 3 Ch. 180, 192)  referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 90  of 1952.     Appeal  under article 134(1) (c) of the Constitution  of India  from  the Judgment and Order,  dated  28th  November, 1954, of the Punjab High Court in Criminal Revision No.  865 of  1951,  arising out of the Judgment,  dated  2nd  August, 1951,  of  the Court of Additional Sessions  Judge,  Rohtak, Gurgaon, in Criminal Revision No. 4 of 1951.    M.     C. Setalvad, Attorney-General for India (Tek Chand and Rajinder Narain, with him) for the appellant.     Gopal Singh and K. L. Mehta for the respondent. S. M. Sikri, Advocate-General for the State of Punjab (Jinder  Lal and  P. G. Gokhale, with him) for the Intervener (The  State of Punjab). 1954.  October 12.  The Judgment of the Court was  delivered by MEHR  CHAND MAHAJAN C.J.-This appeal, by leave of  the  High Court of Judicature at Simla, raises a novel and interesting question  of  law,  viz., whether a  person  accused  of  an offence  under  the  Indian Penal Code and  committed  in  a district which after the partition of India became Pakistan, could be tried for that offence by a Criminal Court in India after   his  migration  to  that  country,  and   thereafter acquiring the status of a citizen.     The  material facts relevant to this enquiry are  these: The  respondent, Ram Narain, acting on behalf of  his  firm, Ram Narain Joginder Nath, carrying on business at Mailsi  in Multan  District, was allowed a cash credit limit of  rupees three  lakhs  by the Mailsi branch of the  Central  Bank  of India Ltd. (the appellant) on the 23rd 699 December,  1946,  shortly before the  partition  of  British India.  The account was secured against stocks which were to remain in possession of the borrowers as trustees on  behalf of  the bank.  On 15th August, 1947, when British India  was split  into two Dominions, the amount due to the  bank  from Ram  Narain  was over Rs. 1,40,000, exclusive  of  interest, while  the value of the goods pledged under the cash  credit agreement was approximately in the sum of Rs. 1,90,000.   On account of the disturbances that followed in the wake of the partition of the country, the bank’s godown-keeper at Mailsi left  Mailsi some time in September, 1947, and the  cashier, who was left in charge, also was forced to leave that  place in October, 1947, and thus no one was in Mailsi to safeguard the  bank’s godowns after that date.  It is alleged that  in January,  1948, when, Mr. D. P. Patel, Agent of  the  Multan branch of the appellant bank, visited Mailsi, he  discovered that  stocks pledged by Messrs.  Ram Narain  Joginder  Nath, against  the  cash  credit agreement  had  disappeared.   On inquiry he found that 801 cotton bales pledged with the bank had been stolen, and booked by, Ram Narain to Karachi on the 9th  November, 1947, and that he had recovered a sum of  Rs. 1,98,702-12-9  as price of these bales from one Durgadas  D. Punjabi.   The bank claimed this amount from Ram Narain  but with no result.  It then applied under section 188, Criminal Procedure  Code, to the East Punjab Government for  sanction for the prosecution of Ram Narain for the offences committed



in Pakistan in November, 1947, when he was there, in respect of  these bales.  The East Punjab Government, by  its  order dated  23rd  February,  1950,  accorded  sanction  for   the prosecution  of  Ram  Narain, under sections  380  and  454, Indian  Penal Code.  Ram Narain, at this time, was  residing in  Hodel,  District Gurgaon, and was carrying  on  business under  the name and style of Ram Narain Bhola  Nath,  Hodel. In pursuance of this sanction, on 18th April, 1950, the bank filed a complaint against Ram Narain under sections 380  and 454,  Indian Penal Code, and also under section 412  of  the Code before the District Magistrate of Gurgaon. 700 Ram Narain, when he appeared in Court, raised a  preliminary objection that at the time of the alleged occurrence he  was a  national  of  Pakistan  and  therefore  the  East  Punjab Government  was  not  competent to grant  sanction  for  his prosecution under section 188, Criminal Procedure Code, read with  section 4, Indian Penal Code.  This objection was  not decided  at that moment, but after evidence in the case  had been  taken  at the request of both sides  the  Court  heard arguments  on the preliminary point and overruled it on  the finding  that Ram Narain could not be said to have  acquired Pakistan  nationality by merely staying on there  from  15th August, till 10th November, 1947, and that all this time  be had the desire and intention to revert to Indian nationality because  he sent his family out to India in  October,  1947, wound up his business there and after his migration to India in  November, 1947, he did not return to Pakistan.   It  was also said that in those days Hindus and Sikhs were not  safe in  Pakistan and they were bound to come to India under  the inevitable pressure of circumstances over which they had  no control.  Ram Narain applied to the Sessions Judge, Gurgaon, under  sections  435 and 439, Criminal Procedure  Code,  for setting aside this order and for quashing the charges framed against  him.  The Additional Sessions Judge dismissed  this petition and affirmed the decision of the trial  magistrate. Ram Narain then preferred an application in revision to  the High  Court, Punjab, at Simla, and with success.   The  High Court allowed the revision and quashed the charges and  held that the trial of respondent, Ram Narain, by a Magistrate in India was without jurisdiction.  It was held that until  Ram Narain actually left Pakistan and came to India he could not possibly  be said to have become a citizen of India,  though undoubtedly he never intended to remain in Pakistan for  any length  of time and wound up his business as quickly  as  he could  and came to India in November, 1947, and  settled  in Hodel.   It was further held that the Punjab Government  had no  power  in February, 1950, to  sanction  his  prosecution under section 188, Criminal Procedure Code, for acts                     701 committed  in  Pakistan in November, 1947.  The  High  Court also  repelled the further contention of the appellant  bank that  in any case Ram Narain could be tried at  Gurgaon  for the  possession  or retention by him at Hodel  of  the  sale proceeds  of the stolen cotton which  themselves  constitute stolen property.  Leave to appeal to this Court was  granted under article 134(1) (c) of the Constitution.      The  sole question for determination in the  appeal  is whether  on  a true construction of  section  188,  Criminal Procedure Code, and section 4 of the Indian Penal Code,  the East  Punjab Government had power to grant sanction for  the prosecution of Ram Narain for offences committed in Pakistan before his migration to India.     The  relevant portion of section 4, Indian  Penal  Code, before its amendment read thus:



  "The  provisions of this Code apply also to  any  offence committed by-    (1) any Native Indian subject of Her Majesty in any place without and beyond British India; Since 1950, the wording is:      "Any  citizen of India in any place without and  beyond India Section 188, Criminal Procedure Code, formerly read thus :    " When a Native Indian subject of Her Majesty commits  an offence  at  any  place without and  beyond  the  limits  of British  India  he  may be dealt with  in  respect  of  such offence  as  if it had been committed at  any  place  within British India at which he may be found.  "     These  wordings  were  subsequently  adapted  after  the formation  of  two Dominions and read as follows:--  When  a   British  subject domiciled in  India  commits  an offence  at any place without and beyond all the  limits  of the  provinces  he  may be dealt with  in  respect  of  such offence as if it had been committed at any place within  the Provinces at which he may be found."    After 1950, the adapted section reads as follows     " When an offence is committed by- 90 702 (a)any  citizen  of India in any place  without  and  beyond India...... he may be dealt with in respect of such  offence as  if  it had been committed at any place within  India  at which he may be found.  "     The  learned Attorney-General contended that Ram  Narain was, at the time when sanction for his prosecution was given by  the East Punjab Government, a citizen of India  residing in Hodel and that being so, he could be tried in India being a  citizen  of India at that moment,  and  having  committed offences  outside India, and that the provisions of  section 4,  Indian Penal Code, and section 188,  Criminal  Procedure Code,  were  fully attracted to the case.  In  our  opinion, this  contention is not well founded.  The language  of  the sections plainly means that if at the time of the commission of  the  offence, the person committing it is a  citizen  of India,  then even if the offence is committed outside  India he  is subject to the jurisdiction of the Courts  in  India. The rule enunciated in the section is based on the principle that qua citizens the jurisdiction of Courts is not lost  by reason  of  the venue of the offence.  If, however,  at  the time of the commission of the offence the accused person  is not  a  citizen  of  India, then  the  provisions  of  these sections  have no application whatsoever.  A  foreigner  was not liable to be dealt with in British India for an  offence committed  and  completed outside British  India  under  the provisions  of  the  sections  as  they  stood  before   the adaptations  made  in  them after the  partition  of  India. Illustration  (a) to section 4, Indian Penal Code,  delimits the  scope of the section.  It indicates the extent and  the ambit of this section.  I runs as follows:-     "(a) A, a coolie, who is a Native lndian subject commits a murder in Uganda.  He can be tried and convicted of murder in any place in British India in which he may be found.  "    In  the  illustration,  if (A) was not  a  Native  Indian subject  at  the time of the commission of the  murder,  the provisions of section 4, Indian Penal Code, could not  apply to his case.  The circumstance that after the commission  of the  offence a person becomes domiciled in another  country, or acquires citizenship of that 703 State’  cannot  confer jurisdiction on the  Courts  of  that



territory retrospectively for trying offences committed  and completed  at  a  time  when that  person  was  neither  the national of that country nor was he domiciled there.      The  question of nationality of Ram Narain really  does not  arise in the case.  The real question to be  determined here-is, whether Ram Narain had Indian domicile at the  time of  the  commission of the offence.   Persons  domiciled  in India  at the time of coming into force of our  Constitution were  given  the status of citizens and they  thus  acquired Indian  nationality.  If Ram Narain had Indian  domicile  at the  time  of  the  commission  of  the  offence,  he  would certainly  come within the ambit of section 4, Indian  Penal Code, and ,section 188, Criminal Procedure Code.  If, on the other  hand, he was not domiciled in India at  the  relevant moment,  those  sections would have no  application  to  his case.  Writers on Private International Law are agreed  that it  is  impossible  to lay down an  absolute  definition  of ’domicile’  The simplest definition of this  expression  has been  given  by  Chitty J.  in  Craignish  v.  Craignish(1), wherein the learned Judge said:     "  That  place is properly the domicil of  a  person  in which his habitation is fixed without any present  intention of removing therefrom.  "    But  even  this definition is not an absolute  one.   The truth  is that the term domicil’ lends itself  to  illustra- tions  but  not  to  definition.  Be that  as  it  may,  two constituent  elements that are necessary by English Law  for the  existence  of  domicil  are:  (1)  a  residence  of   a particular kind, and (2) an intention of a particular  kind. There must be the factum and there must be the animus.   The residence need not be continuous but it must be  indefinite, not  purely  fleeting.   The intention  must  be  a  present intention  to  reside  for ever in  the  country  where  the residence has been taken up.  It is also a well  established proposition that a person may have no home but he cannot  be without a domicil and the law may attribute to him a domicil in a country where in reality he has not.  A person may be a vagrant (1)  [1892] 3 Ch. 18o, 192. 704 as  when he lives in a yacht or wanderer from  one  European hotel to another, but nevertheless the law will  arbitrarily ascribe  to him a domicil in one particular  territory.   In order to make the rule that nobody can be without a  domicil effective,  the  law  assigns what is called  a  domicil  of origin to every person at his birth.  This prevails until  a new  domicil has been acquired, so that if a  person  leaves the  country  of his origin with an undoubted  intention  of never  returning  to it again, nevetheless  his  domicil  of origin  adheres  to him until he actually settles  with  the requisite intention in some other country.      It  has  been held by the High Court  that  Ram  Narain remained in Multan District of the West Punjab, where he and his  ancestors had lived till his migration to  India.   The contention that as no Hindu or Sikh could possibly remain in Pakistan  and  therefore every such person  must  have  been bound  upon making his way to India as quickly  as  possible and that merely by forming an intention to come to India  be became  an Indian subject and was never even for a moment  a subject  of  Pakistan, was negatived, and it was  said  that "though there is no doubt that so far as Punjab is concerned the vast majority of Hindus and Sikhs came to India but even in  the Punjab the exodus has not been complete and  in  the East  Bengal there are a considerable number of  non-Muslims who no doubt by now have become full citizens of  Pakistan."



In  view  of these findings it was concluded that  the  only possible  way by which a resident of the  territories  which became  Pakistan  could  become an  Indian  subject  was  by actually  coming  to  India and unless and  until  any  such person  did come to India he retained Pakistan domicil,  and was  not covered by the words "Native Indian subject of  Her Majesty" in the meaning which they automatically acquired as from  the 15th August, 1947, and he certainly could  not  be described  as  a  citizen of India in  November,  1947,  The learned  Attorney-General combated this view of the  learned Judge  and  laid  considerable  emphasis  on  his  following observations: 705 "  There  does  not seem to be any  doubt  in  the  evidence produced  that  Ram  Narain  never  intended  to  remain  in Pakistan  for any length of time.  In fact, he wound up  his business  as quickly as he could and came to India later  in November 1947 and settled in Hodel"      and he further emphasized the circumstance relied  upon by  the trial magistrate and Sessions Judge that Ram  Narain had sent his family to India in October, 1947.      In  our  opinion, none of these  circumstances  conclu- sively  indicate an intention in Ram Narain  of  permanently removing  himself from Pakistan and taking up  residence  in India.  It has to be remembered that in October or November, 1947, men’s minds were in a state of flux.  The partition of India  and  the  events that followed in its  wake  in  both Pakistan and India were unprecedented and it is difficult to cite any historical precedent for the situation that  arose. Minds  of  people affected by this partition  and  who  were living   in  those  parts  were  completely   unhinged   and unbalanced  and  there  was  hardly  any  occasion  to  form intentions  requisite for acquiring domicil in one place  or another.   People  vacillated and altered  their  programmes from day to day as events happened.  They went backward  and forward;  families were sent from one place to  another  for the  sake  of  safety.  Most of those  displaced  from  West Pakistan had no permanent homes in India where they could go and  take up abode.  They overnight became refugees,  living in  camps in Pakistan or in India.  No one, as a  matter  of fact,  at  the  moment  thought that  when  he  was  leaving Pakistan  for India or vice versa that he was doing  so  for ever  or  that be was for ever abandoning the place  of  his ancestors.   Later policies of the Pakistan Government  that prevented  people from going back to their homes  cannot  be taken into consideration in determining the intention of the people who migrated at the relevant moment.  Ram Narain  may well  have sent his family to India for safety.  As  pointed out  by the learned Judge below, he and his ancestors  lived in the Multan District.  He had considerable business there. 706 The  bank had given him a cash credit of rupees three  lakhs on the security of goods.  He had no doubt some business  in Hodel  also but that was comparatively small.  There  is  no evidence  that  he  had any home in India and  there  is  no reason  to go behind the finding of the learned Judge  below that  he  and his ancestors had been living in  Mailsi.   In these  circumstances,  if one may use  the  expression,  Ram Narain’s domicil of origin was in the district of Multan and when  the district of Multan fell by the partition of  India in Pakistan, Ram Narain had to be assigned Pakistan  domicil till  the  time he expressed his  unequivocal  intention  of giving up that domicil and acquiring Indian domicil and also took  up  his  residence in India.  His  domicil  cannot  be determined  by  his family coming to India and  without  any



finding that he had established a home for himself.  Even if the animus can be ascribed to him the factum of residence is wanting  in  his case; and in the absence of that  fact,  an Indian  domicil  cannot  be ascribed  to  Ram  Narain.   The subsequent  acquisition  by  Ram Narain  of  Indian  domicil cannot  affect  the question of jurisdiction of  Courts  for trying  him  for crimes committed by him while  he  did  not possess an Indian domicile The question in this case can  be posed  thus: Can it be said that Ram Narain at the  time  of the commission of the offence was domiciled in India ?  That question can only be answered in one way, viz., that he  was not  domiciled  in  India.  Admittedly, then he  was  not  a citizen  of  India  because that status  was  given  by  the Constitution that came into force in January, 1950.  He  had no residence or home in the Dominion of India.  He may  have had  the  animus to come to India but that animus  was  also indefinite, and uncertain.  There is no evidence at all that at  the moment he committed the offence he had finally  made up his mind to take up his permanent residence in India, and a  matter  of  this kind cannot be  decided  on  conjectural grounds.   It is impossible to read a man’s mind but  it  is even  more  than impossible to say how the minds  of  people worked during the great upheaval of 1947. 707     The learned Attorney-General argued that Ram Narain  was a  native  Indian  subject of Her Majesty  before  the  15th August, 1947, and that description continued to apply to him after  the 15th August, 1947, whether he was in India or  in Pakistan, but we think that the description ’Native  subject of  Her  Majesty’  after the 15th of  August,  1947,  became applicable  in the territory now constituted India  only  to residents  of provinces within the boundaries of India,  and in Pakistan to residents of provinces within the  boundaries of  Pakistan  and  till the time that  Ram  Narain  actually landed on the soil of India and took up permanent  residence therein  he cannot be described to be domiciled in India  or even  a  Native Indian subject of His Majesty  domiciled  in India.        For  the  reasons given above we are of  the  opinion that  the decision of the High Court that Ram  Narain  could not be tried in any Court in India for offences committed in Mailsi  in November, 1947, is right and that the  Provincial Government   had  no  power  under  section  188,   Criminal Procedure Code, to accord sanction to his prosecution.      The result is that the appeal fails and is dismissed.                            Appeal dismissed.