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PETITIONER: MOBARIK ALI AHMED

       Vs.

RESPONDENT: THE STATE OF BOMBAY

DATE OF JUDGMENT: 06/09/1957

BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. IMAM, SYED JAFFER MENON, P. GOVINDA

CITATION:  1957 AIR  857            1958 SCR  328

ACT: Criminal   Law-Foreigner-Resident   outside    India-Offence committed  in  lndia--Conviction by Indian Court  under  the lndian  Penal Code-Legality-Offendey extradited and  brought to India Arrest for a fresh offence and conviction-Validity- Charge under s.     420 read with s. 34 Of the Indian  Penal Code-Conviction under s. 420   alone-Legality’   Extradition Act, 1870 33 & 34 Vict. C. 52),s.  3(2)-Fugitive   Offenders Act,  1881, (44 & 45 Vict. c. 69). s. 8- Indian  Penal  Code (Act XLV of 1860), ss. 2, 34, 420.

HEADNOTE: The  appellant,  a  Pakistani  national  doing  business  in Karachi,  was convicted of the offence of cheating under  s. 420 Of the Indian Penal Code.  The prosecution case was that with a dishonest intention he made false representations  to the  complainant  at Bombay through letters,  telegrams  and telephone  talks, that he had ready stock of rice,  that  he had reserved shipping space and on receipt of money he would be  in a position to ship the rice forthwith, and  that  the complainant who was anxious to import rice urgently sent the amount   to   the   appellant  on   the   belief   of   such representations.   It was contended for the  appellant  that the conviction was bad on the grounds inter alia (1) that he was  a Pakistani national who, during the entire  period  of the commission of the offence, never stepped into India  and was  only  at Karachi and that he could not be tried  by  an Indian Court nor be punishable under the Indian Penal  Code, (2) that lie 329 was  brought over from England, where he happened to be,  by virtue of extradition proceedings in connection with another offence the trial for which was then pending in the Sessions Court at Bombay, and that he could not be validly tried  and convicted for a different offence like the present, and  (3) that  the charge being one under s. 42o read with s.  34  of the  Indian Penal Code for alleged conjoint acts of  himself along with three others and those three not being before the Court,  and himself not having been in Bombay at  the  time, the conviction was unsustainable. Held:     (1)  that,  on  the  facts,  all  the  ingredients

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constituting  the  offence of cheating under S. 420  Of  the Indian Penal Code having occurred in Bombay, the offence was committed  there  and  that, though the  appellant  was  not corporeally  present in India at the time of the  commission of  the offence, his conviction under the Indian Penal  Code was valid in view of the terms of s. 2 of the Code; (2)  that,  as the appellant was surrendered to  the  Indian authorities  under  the Fugitive Offenders  Act,  1881,  and there  was  no provision in that Act  preventing  arrest  in India  for  the  purpose of a trial in respect  of  a  fresh offence, his conviction following upon his trial was valid. H.   N.  Rishbud  v. The State of Delhi, (1955)  1  S.C.  R. II50, relied on. (3)  that the conviction of the appellant of the offence of S.   420  was valid, though the charge was one under S.  420 read  with s. 34, as the actual findings in the  case  could support a conviction under S. 420 itself. Willie  (William  Slaney) v. The State  of  Madhya  Pradesh, (1955) 2 S.C.R. II40, relied on.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION   Criminal Appeal No. 200 of 1956. Appeal  by special leave from the judgment and  order  dated July  20, 1954, of the Bombay High Court in Criminal  Appeal No.  1596  of 1953, arising out of the  judgment  and  order dated  September  23, 1953, of the Court of  the  Additional Chief  Presidency Magistrate, 3rd Court, Esplanade,  Bombay, in Case No. 31/W of 1953. A.   P. Gandhi and J. B. Dadachanji, for the appellant. H.   J. Umrigar and R. H. Dhebar, for the respondent. 1957.  September 6. The following Judgment of the Court  was delivered by 330 JAGANNADHADAS  J.-This is an appeal by special  leave.   The appellant before us was convicted by the learned  Presidency Magistrate, Third Court, Esplanade, Bombay, for the  offence of cheating under s. 420 read with s. 34 of the Indian Penal Code  on three counts of cheating, viz., the first  relating to a sum of Rs. 81,000, the second relating to a sum of  Rs. 2,30,000,  and the third relating to a sum of Rs.  2,36,900. He  was  sentenced by-the learned Magistrate  to  two  years rigorous  imprisonment and a fine of Rs. 1,000 on the  first count, to twenty-two months rigorous imprisonment and a fine of  Rs. 1,000 on the second count, and two  months  rigorous imprisonment  on the third count.  It was directed that  the substantive  sentences only on the second and  third  counts are to run concurrently. The  prosecution was initiated on a private complaint  filed by  one  Louis Anton Cornea on June 30, 1952,  against  four persons of whom the appellant was designated therein as  the first accused and one Santram as the fourth accused and  two other  persons, A. A. Rowji and S. A. Rowji, as  second  and third  accused respectively.  Bailable warrants were  issued against  all  the  four by the  learned  Magistrate  but  it appears that warrants could not be executed against  accused 2, 3 and 4. They were reported as absconding.  The trial was accordingly separated as against them and proceeded only  as against  (the  first  accused) the  appellant  herein.   The convictions  and sentences have been confirmed on appeal  by the High Court at Bombay. The  complainant  is  a businessman from  Goa  and  was  the director  of a firm in Goa which was trading in the name  of

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Colonial  Limitada doing business in import and export.   At the relevant time there was severe scarcity of rice in  Goa. The  complainant  was  accordingly anxious  to  import  rice urgently  into Goa.  He got into touch with a friend of  his by name Rosario Carvalho in Bombay who was doing business as a  commission  agent.  Carvalho in his turn got  into  touch with one Jasawalla who was also doing business of commission agent at Bombay in the name of Universal Supply Corporation. This Jasawalla was previously 331 in correspondence with the appellant about business in rice. The  appellant  was  at the time in Karachi  and  was  doing business  in  the  name  of  Atlas  Industrial  and  Trading Corporation and also in the name of Ifthiar Ahmed & Co.  The telegraphic  address of the complainant was  Colodingco  and that of the appellant was Ifthy.  As a result of exchange of telegrams, letters and telephone messages between  Jasawalla and the appellant on one side, Jasawalla and the complainant on  the  other, followed up by direct contacts  between  the appellant  and the complainant through telephone,  telegrams and  letters, a contract was brought about for purchase,  by the complainant from the appellant, of 1,200 tons of rice at the rate of pound 51 per ton, to be shipped from Karachi  to Goa.   The  contract  appears originally to  have  been  for payment of the price in sterling at Karachi.  But it is  the prosecution case (which has been accepted by both the courts below) that a subsequent arrangement was arrived at  between the parties by which the payment was to be made in Bombay in Indian currency, in view of the difficulties experienced  in opening a letter of credit in a Bank at Karachi through  the Portuguese  Bank at Goa.  It is also the  prosecution  case, which has been accepted, that the understanding was that 25% of the price was to be paid as advance by the complainant to Jasawalla as the agent of the appellant for this purpose and that  on receiving intimation thereof the appellant  was  to ship the rice and that the balance of the purchase money was to  be paid on presentation of the shipping  documents.   It appears  that  at a later stage the quantity of rice  to  be supplied was raised to 2,000 tons and advance to be paid  to 50%  of  the  total  stipulated  price.   It  is  also   the prosecution  case that the appellant represented at  various stages  by  telephone  talks,  telegrams,  and  letters,  to Jasawalla as well as to the complainant directly that he had adequate  stock  of rice and that he had  reserved  shipping space in certain steamers which were about to leave for  Goa and  that  he was in a position to ship the  rice  on  being satisfied  that  the requisite advance was paid.  It  is  in evidence that on receiving such assurances, the complainant 43 332 paid  moneys  as  shown  below  to  Jasawalla  and  obtained receipts  from  him,  purporting  to be  the  agent  of  the appellant.      1. On July 23, 1951          ...Rs. 81,000      2. On August 28, 1951         ...Rs. 2,30,000      3. On August 29, 1951        ... Rs. 2,36,900      All these amounts are held to have been received by the appellant in due course.  It is admitted, however., that  no rice was in fact shipped to the complainant and the  amounts have not been returned back to the complainant.  The defence of the appellant is to the effect that the amounts were  not in fact paid to any person who was his agent and not in fact received by him at all and that he was unable to supply  the rice as the complainant did not comply with the terms of the contract by opening a letter of credit at Karachi or  paying

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him  in  Pakistani  currency.  This  defence  has  not  been accepted and the appellant has been found guilty as  charged by  the  courts  below.   He  was  therefore  convicted  and sentenced as above stated. It is necessary to set out somewhat in detail the  essential facts  held  to  have been proved by  the  courts  below  to appreciate the legal contentions that have been urged before us.   As previously stated, the complainant got  into  touch with  his friend Carvalho of Bombay to help him  in  getting rice  for consumption in Goa and Carvalho in turn  contacted Jasawalla for the purpose.  Before that time, Jasawalla,  in the course of his usual business, had received a letter, Ex. 0,  dated June 5, 1951, from the appellant offering that  he would  be  prepared to do business in rice if  a  letter  of credit  is  opened  or  cash payment  is  made  in  Karachi. Carvalho  came to know of this from Jasawalla  and  informed the  complainant.   Jasawalla  also wrote a  letter  to  the complainant.   The complainant sent a telegram  showing  his willingness  to open credit, if 1,200 tons of rice could  be shipped  to  Goa.  Jasawalla wrote a letter, Ex.   P,  dated June  6, 1951, to the appellant quoting the telegram of  the complainant  and asking for an offer.  The appellant by  his letter dated June 10 to Jasawalla, offered to supply as 333 much  rice  as he wanted and demanded 25%  cash  payment  as advance.    After   some  tripartite   correspondence,   the appellant  by  his letter dated June 26,  agreed  to  accept money in Bombay, at the price of  pound 51 per ton of  rice. Jasawalla  by  telegram  dated July 5,  1931,  informed  the appellant  that the Goa party accepted the 25%  arrangement. The  appellant by a letter dated July 7, accepted the  offer but  wanted  50%  deposit  and  gave  time  till  the  10th, suggesting  that since the rice was scarce the deal must  be finished   at  once.   Jasawalla  intimated  this   to   the complainant  and asked him to start at once with  money  and informed him that if there was delay the party at the  other end  would  claim damages.  The appellant did  not  get  any information for the next few days.  He accordingly sent  one Santram (accused 4 in the complaint) to Bombay as his  agent for discussing the matter in question and authorising him to fix the deal on the spot.  Santram appears to have fixed the bargain  for shipping 1,200 tons of rice on the  complainant paying  an  advance  sum of Rs. 1,50,000 at  Bombay  as  25% deposit  towards the price of the said 1,200 tons  of  rice. On receipt of this information the appellant wrote a  letter dated  July  12,  to  Jasawalla  wherein  he  confirmed  the arrangement arrived at by Santram.  Jasawalla was  thereupon taken by Santram to accused 2 and 3. They were introduced to him  as the agents of the appellant who were to receive  the moneys in this transaction on appellant’s behalf At the same time  the  appellant was also writing letters  to  Jasawalla which  seem  to  indicate that he was trying  to  shift  his position  by asking for 50% as advance deposit.  For  a  few days  thereafter the complainant did not turn up  at  Bombay with the funds and the appellant by his telegram dated  July 16,  asked  Jasawalla why there is  no  further  information about  the  transaction.  By a telegram dated  July  17,  he informed  Jasawalla that S. S. Olinda was sailing in  a  few days and that it would be too late to ship the rice and that the matter should be hurried up. On July 18, the complainant sent  a  telegram  to Jasawalla informing him  that  he  was coming with 334 funds and that if the rice was not shipped it may be shipped by  S.S.  Olinda which was about to start on July  21.   The

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appellant  also  sent a telegram to Jasawalla  on  July  18, asking  why  the  deal was not coming on  and  that  he  had already reserved space by the steamer of the 21st.  On  July 19  again Jasawalla received a telegram from  the  appellant informing  him  definitely that space was  reserved  in  the steamer.  The complainant also sent a telegram to  Jasawalla on the same day informing him that he was coming and that at least  500  tons must be shipped at once.   The  complainant -arrived  at  Bombay on July 20.  The indent,  Ex.   A,  was prepared in triplicate and signed by the complainant on  the same day.  The complainant brought cheques and drafts to the tune of Rs. 81,000.  It would appear that at this stage  the complainant  was asking that, he should be allowed (for  the time  being)  to deposit only Rs. 50,000 as  deposit  for  a shipment  of  500  tons.  But appellant  insisted  that  Rs. 1,50,000  should be paid as advance for 1,200 tons.   On  or about July 21, the appellant sent a letter to Jasawalla with a  pro-forma  receipt for Rs. 1,50,000 signed by him  to  be made  use  of  by Jasawalla in whatever  manner  he  thought proper  in connection with the transaction then  under  way. The said receipt was shown to the complainant who Was  shown also  the  other correspondence that was received  from  the appellant.   Jasawalla by his letter dated July 22,  to  the appellant  confirmed the shipment of the deal of 1,200  tons of  rice  and intimated that some portion of the  money  was immediately ready and some portion would be brought in a day or two, totalling over Rs. 80,000 and that the balance would be  paid after hearing about shipment of 1,200  tons.   This was  agreed  to  by the appellant.  On  July  23,  Jasawalla telephoned  to  the appellant that he was going to  pay  the money  to  accused 2 as directed by the  appellant.  In  the afternoon of that very day the parties went to the office of accused 2 and there was again a further conversation on  the phone  with  the appellant who, on the phone,  conveyed  the assurance  that  payment to accused 2 would be  as  good  as payment to himself. 335 The  complainant and Carvalho were hearing both the  morning and afternoon talks between the appellant and Jasawalla,  on a  second line.  Thereupon the complainant paid the  sum  of Rs.  81,000  to  Jasawalla who passed  a  receipt  (Ex.   B) therefor on behalf of the appellant and the said amount  was passed  on  to  accused  2. The fact  of  this  payment  was intimated  to  the appellant by telephone as well  as  by  a telegram.   A  letter  was also written on July  24  to  the appellant referring to the telephone calls and telegram  and informing  him that the amount was paid.  He was also  asked therein to ship the rice at once promising that the  balance will  be  paid in a week.  On July 23 itself  the  appellant sent a telegram saying that he had received the messages and was trying to book 1,000 tons.  According to the prosecution case the appellant having received the sum of Rs. 81,000  as above, changed his front from July 24, 1951.  The facts held to  have been proved in respect of this change of front  may now be stated. On July 24, 1951, the appellant sent to Jasawalla a telegram mentioning  difficulties created by the Exchange  Controller in shipping the goods.  When Jasawalla conveyed his  protest and  insisted  upon the shipping of the goods at  once,  the appellant sent a telegram on July 25, informing him that the difficulties  were of a minor character and that  the  space for shipping was already booked.  Jasawalla by his  telegram of the same date asked for confirmation of loading of  1,200 tons  by  S. S. Olinda and requested him that  if  the  full quantity  could  not be loaded, a portion thereof  might  be

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sent  immediately.  The appellant by his letter  dated  July 26,  acknowledged Jasawalla’s letter dated  23rd  (informing him about the payment of Rs. 81,000) and intimated that  the rice  would  be  shipped by the next steamer  S.  S.  Umaria sailing  for Malaya and that the said steamer can touch  Goa if  the  quantity of rice to be shipped is raised  to  2,000 tons.   By  a  letter dated  July  26,  Jasawalla  protested against  the new condition.  The complainant sent  a  letter dated  July  27, to Jasawalla asking whether  the  rice  was shipped by S. S. Olinda 336 or  not.   On  July 27, the appellant  sent  a  telegram  to Jasawalla   asking  for  bank-guarantee  (for   payment   of balance)..  It  does not appear that any question  of  bank- guarantee  was  raised  in the  correspondence  between  the parties, after Santram (accused 4) fixed up the deal on  the footing  of payment of advance of Rs. 1,50,000, in  cash  at Bombay  by  way of 25% deposit.  On  receiving  this  letter raising the question of bank-guarantee, Jasawalla wrote back on  the 27th to the appellant about the change of front  and charging  him with cheating and not fulfilling his  part  of the  contract after receiving the money.  By a letter  dated July  30 and also a telegram of the same date the  appellant replied to Jasawalla wherein he promised to send the rice by S.  S. Umaria and also threatened to break off  negotiations if  the  parties  bad  no  confidence  in  him.    Jasawalla thereupon asked the appellant by telegram to fix the sailing date  of S. S. Umaria and inform him.  The  appellant  wrote back  on  August  1,  admitting  receipt  of  letters   from Jasawalla  and attempting to pacify him.  Jasawalla  replied thanking him and asked for a clear date of the sailing of S. S.  Umaria.  By that time Jasawalla had made enquiries  with Mackinons  &  Mackenzie (shipping agents) and  was  informed that  no shipping space had been reserved by  the  appellant and  found the statement of the appellant in this behalf  to be  false.   Jasawalla sent copies  of  this  correspondence between  him  and the appellant to  the  complainant.   That correspondence indicated the appellant’s position to be that the  rice would be shipped by S. S. Umaria only if the  load could  be  increased to 2,000 tons and  that  the  appellant stated  that he got the sailing of S. S. Umaria  delayed  by two  days  for  the  purpose.   The  complainant   thereupon informed  Jasawalla that he was prepared to accept  the  new deal for 2,000 tons.  Jasawalla by his telegram dated August 2,  to the appellant confirmed this new arrangement  and  by another  telegram  dated August 3, asked  the  appellant  to hurry up with the shipment.  Thereafter the appellant raised a  fresh matter.  On August 6, the appellant sent  a  direct telegram to the complainant 337 and  asked  him  to request  the  portuguese  Pro-Consul  at Karachi to obtain exchange-guarantee.  Between August 7  and 12,  several  letters  and  telegrams  passed  between   the complainant and Jasawalla on the one hand and the  appellant on the other.  As a result of efforts made in this interval, it appears that the Pro.  Consul, Mr. Alphonso, was prepared to give the exchange-guarantee of the State Bank of Pakistan for payment in sterling of the price of rice.  The appellant then by his letter dated August 13, informed Jasawalla  that the  State Bank was not insisting on exchange guarantee  but that  it would be sufficient if a certificate was issued  by the  Portuguese  authority that the rice  was  required  for replenishing the ration shops in Goa.  A similar letter  was also  written  by  the  appellant  on  August  14,  to   the complainant.    Thereupon  the  complainant  and   Jasawalla

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approached  the  concerned authority at Goa, viz.,  one  Mr. Campos,  the Trade Agent to the Portuguese Government.   Mr. Campos  thereupon sent telegrams on August 16, to the  State Bank  of Pakistan, to the Pro-Consul, Mr. Alphonso,  and  to the   appellant  certifying  that  rice  was  required   for replenishing the ration shops in Goa. After  this  there was a further change of  tactics  by  the appellant.   By  a  telegram  dated  August  20,  1951,  the appellant  informed the complainant that the  papers  before the Government were ready and that he had done his best  but that payment must be made.  In reply the complainant sent  a telegram  to the appellant on the same date stating that  he did not understand the contents of his telegram and promised to  send  the  balance on  loading.   The  complainant  also informed Jasawalla about these telegrams exchanged.  between him and the appellant.  This was followed up by some further correspondence  between  the  parties  on  August  22.   The appellant  sent  telegrams both to the  complainant  and  to Jasawalla demanding 90% deposit as advance and threatened to break off if it was not complied with.  Thereupon  Jasawalla sent  a telegram; on the 22nd to the complainant to come  to Bombay.’ He informed the appellant the same day that the 338 complainant  was coming down to Bombay to arrange  ’for  50% deposit  and asked the appellant to start loading.   On  the 24th  he wrote also a letter to the appellant to the  effect that the complainant would pay 50% advance minus the  amount already paid and informed him that the complainant would fly to   Karachi  to  supervise  the  loading.   The   appellant thereupon sent a telegram dated the 25th informing Jasawalla that everything was ready but hinted about the opening of  a letter of credit.  Again on August 27, the appellant sent  a telegram  to  Jasawalla that stocks could  not  be  released unless  the arrangement was fulfilled, i.e., 90% amount  was paid.   The  complainant  came to  Bombay  with  drafts  and cheques  to  the tune of about Rs.  4,75,000  and  contacted Jasawalla.   He contacted also the appellant on  phone.   He paid  the  sum  of  Rs. 2,30,000  on  August  28,  1951,  to Jasawalla who passed a receipt, Ex.  F, therefor, on  behalf of  the  appellant.   On August  29,  the  complainant  paid another  sum  of  Rs. 2,36,900 to Jasawalla  who  passed  a, receipt,  Ex.  G, therefor, on behalf of the appellant.   It is  the  case of the prosecution that both these  were  also passed  on  to  the second accused and through  him  to  the appellant  and  that the appellant acknowledged  receipt  of these  amounts in his correspondence and that case has  been also  accepted.   On the 29th itself. the appellant  sent  a telegram to Jasawalla as follows: "Part consignment received, rest tomorrow, Pentakota for the 1st  certain goods required alongside.  "  on  receiving  this telegram Jasawalla informed  him  by  a telegram dated August 31, that he was shocked that no  space was  reserved, though everything had been done on his  side. The  appellant sent a reply by telegram dated  September  1, 1951,  protesting against the language used by Jasawalla  in the  telegram and informed him that space was  reserved  but the  Company  could  not  wait as the  goods  could  not  be shipped.   On September 5, the appellant informed  Jasawalla by  a letter that space was reserved by S.S.  Pentakota  and that  everything  was  ready for  shipment.   Meanwhile  the complainant  feeling  very  nervous and  anxious  about  the fulfilment of the transaction proceeded in 339 person   to  Karachi  on  September  4.  According  to   the complainant  he stayed at Karachi for about two  weeks.   He

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was shown some godowns containing rice bags suggesting  that they belonged to the appellant and were ready for  shipments But  he was not afforded any opportunity for verifying  that the  stock  was  intended for shipment  in  respect  of  his transaction.  The complainant went to Karachi on a Visa  for three  months.  But after a stay of less than two  weeks  he was served with a quit-order from the Pakistan Government on September  18,  and was bundled out of Karachi.  It  is  the complainant’s  impression  that this was manoeuvred  by  the appellant.   On  his return back, correspondence  was  again resumed  between  the appellant and the complainant.   By  a letter  dated September 21, the appellant promised  to  ship the  goods  by S.S. Ismalia which would not  be  sailing  in September but would leave on October 3. On September 23, the appellant sent another letter stating that S.S. Ismalia  was arriving-on  October 3 and not on September 26.  On  October 3,  the  appellant wrote another letter to  the  complainant informing  him  that S.S. Ismalia was  not  available.   The complainant  thereafter  sent a telegram  to  the  appellant dated  September 29, calling upon him to ship the  goods  by S.S.  Shahjehan  if  S.S. Ismalia was  not  available.   The complainant by a further letter dated October 1, called upon the appellant to ship the rice at once.  By a telegram dated October 2, the appellant informed the complainant that  S.S. Shahjeban was arriving the, next day and that he would  wire the  position.  By his telegram dated the 3rd,  he  informed the complainant that the loading had commenced.  On  October 6,  the  complainant  received  another  telegram  from  the appellant  that he would not ship per S.S.  Shahjehan  until demands in his letter dated September 29 are complied  with. It  is the complainant’s case that no such letter  was  ever received by him., Jasawalla also informed the appellant that no  letter  dated September 29 was  received.   By  telegram dated  October 8, 1951, Jasawalla called upon the  appellant to refund the money and cancel the contract.  On October 12, the appellant sent a telegram 44 340 which conveyed a suggestion that he would ship rice by  S.S. Shahjehan  arriving  on October 19, instead  of  October  9. There  were  some further telegrams exchanged.  Finally  the complainant sent a telegram on October 26, calling upon  the appellant  to  ship rice immediately or  refund  the  money. This  was  followed by further  exchange  of  correspondence which  ultimately resulted in a letter by the  appellant  to the   complainant  dated  November  17,  denying   all   the allegations made against him. The above facts were held to have been proved by the  courts below on the basis of a good. deal of correspondence between the   parties  consisting  of  telegrams  and  letters   and supported  by  the oral evidence mainly  of  three  persons, viz.,  (1)  the complainant, (2) Jasawalla, and (3)  an  ex- employee of the appellant at Karachi by name Sequeria.   All this  evidence has been accepted by the courts  below  after full  consideration of the various comments  and  criticisms against acceptability of the same. In  a  case of this kind a question may well  arise  at  the outset whether the evidence discloses only a breach of civil liability  or  a  criminal offence.  That  of  course  would depend  upon  whether the complainant in  parting  with  his money  to  the tune of about Rs. 5 1/2 lakhs  acted  on  the representations of the appellant and in belief of the  truth thereof and whether those representations, when made were in fact false to the knowledge of the appellant and whether the appellant  had a dishonest intention from the outset.   Both the courts below have found these facts specifically against

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the  appellant in categorical terms.  These being  questions of fact are no longer open to challenge in this Court before us in an appeal on special leave. Learned counsel for the appellant accordingly raised  before us the following contentions: 1.The  appellant  is a Pakistani national, who,  during  the entire period of the commission of the offence never stepped into  India and was only at Karachi.  Hence he committed  no offence punishable under the Indian Penal Code and cannot be tried by an Indian Court. 341 2.The  appellant  was brought over from  England,  where  he happened  to  be, by virtue of  extradition  proceedings  in connection  with another offence, the’ trial for  which  was then pending in the Sessions Court at Bombay and accordingly he could not be validly tried and convicted for a  different offence like the present. 3.   The various telegrams and letters relied upon by the prosecution were held to have been proved on legally inadmissible material. 4.   The  charge being under s. 420 read with s. 34  of  the Indian Penal Code for alleged conjoint acts of the appellant along with the persons designated as accused 2, 3 and 4,  in the  complaint and the said three accused not  being  before the Court and the appellant not having been in Bombay at the time, the conviction is unsustainable. We  have heard elaborate arguments on all these matters  but have   felt  satisfied  that  there  is  no   substance   in contentions  2, 3 and 4 above.  Accordingly we did not  call upon the counsel for the State to reply to the same.  It is, therefore,  unnecessary  to deal with them  at  any  length. They will be disposed of in the first instance. To  understand  contention 3, it is convenient to  take  the letters  and telegrams separately.  The letters  which  have been relied on for the prosecution fall under the  following categories. 1.   Letters  from the appellant either to Jasawalla  or  to the complainant. 2.   Letters   to  the  appellant  from  Jasawalla  or   the complainant. Most of the letters from the appellant relied upon bear what purport to be his signatures.  A few of them are admitted by the  appellant.   There  are  also  a  few  letters  without signatures.  Both the complainant and Jasawalla speak to the signatures  on  the  other letters.  The  objection  of  the learned  counsel for the appellant is that neither  of  them has actually seen the appellant write any of the letters nor are  they shown to have such intimate acquaintance with  his correspondence, 342 as  to  enable  them to speak to the  genuineness  of  these signatures.   Learned  trial Judge as well  as  the  learned Judges  of  the  High  Court  have  found  that  there  were sufficient number of admitted or proved letters which  might well  enable Jasawalla and the complainant to  identify  the signatures  of the appellant in the disputed letters.   They also  laid  stress  substantially on  the  contents  of  the various  letters,  in the context of the other  letters  and telegrams to which they purport to be replies and which form the chain of correspondence as indicating the genuineness of the  disputed  letters.  Learned counsel  objected  to  this approach on a question of proof.  We are, however, unable to see  any  objection.   The proof of  the  genuineness  of  a document  is proof of the authorship of the document and  is proof  of a fact like that of any other fact.  The  evidence

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relating  thereto may be direct or circumstantial.   It  may consist of direct evidence of a person who saw the  document being  written  or the signature being affixed.  It  may  be proof  of  the  handwriting  of  the  contents,  or  of  the signature, by one of the modes provided in ss. 45 and 47  of the Indian Evidence Act.  It may also be proved by  internal evidence  afforded  by the contents of the  document.   This last  mode of proof by the contents may be  of  considerable value where the disputed document purports to be a link in a chain  of correspondence, some links in which are proved  to the  satisfaction  of the court.  In such  a  situation  the person who is the recipient of the document, be it either  a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the  signature of the alleged sender, limited though it  may be, as also his knowledge of the subject matter of the chain of  correspondence,  to  speak to  its  authorship.   In  an appropriate  case  the court may also be in  a  position  to judge whether the document constitutes a genuine link in the chain   of   correspondence  and  thus  to   determine   its authorship.   We  are  unable, therefore, to  say  that  the approach  adopted  by the courts below in  arriving  at  the conclusion  that  the  letters are genuine is  open  to  any serious legal objection.  The question, if any, can 343 only  be  as to the adequacy of the material  on  which  the conclusion  as to the genuineness of the letters is  arrived at.   That however is a matter which we cannot permit to  be canvassed before us. A  few  of the letters said to have been received  from  the appellant,  as  stated above, do not  bear  his  signatures. These were held to have been proved by the,,  circumstantial evidence as pointed out and we see no objection thereto. The  next objection is as regards the letters said  to  have been sent by Jasawalla and the complainant to the appellant. Jasawalla  and the complainant have produced copies  of  the originals.   It  has been contended that  these  copies  are inadmissible.  But such a contention is obviously untenable. The  appellant cannot be expected to produce them, if  true, since  be disputes them.  There is also the evidence of  his ex-employee, Sequeria, that the originals were received  but taken  away by his son.  The main contention in  respect  of these  letters  is  that there is no proof  that  they  were received by the appellant at Karachi.  It is contended  that evidence  given by either Jasawalla or the complainant  that the  originals  were written and posted is not  relevant  to show that the same have been received.  It is urged that the proof  of  mere  posting  of a  letter  is  not  presumptive evidence  of  the receipt thereof by  the  addressee  unless there is also proof that the original has not been  returned from  the Dead Letter Office.  Illustration (b) to s. 16  of the Indian Evidence Act, 1872, is relied on for the  purpose and  it  is  urged that a combination of the  two  facts  is required  to raise such a presumption.  We are  quite  clear that  the  illustration only means that each  one  of  these facts  is  relevant.  It cannot be read as  indicating  that without  a  combination of these facts  no  presumption  can arise.  ’Indeed that section with the illustrations  thereto has nothing to do with presumptions but only with relevance. Some  cases relating to this have been cited before us.   We have considered the same but it is unnecessary to deal  with them. Next  taking  the question relating to  telegrams  the  main objection is as to the proof of the genuineness of 344

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the  various telegrams said to have been received  from  the appellant.  In this case since we are largely concerned with the nature and contents of the representations said to  have been made by the accused to the complainant or to Jasawalla, it  is obvious that what are relevant or important  are  the telegraphic   messages  delivered  to  the  complainant   or Jasawalla  provided the authorship of the original  is  made out.   These  messages  have been proved  by  producing  the messages actually handed over. to either of these persons or the  transit  copies  of  the  originals  recorded  at   the receiving  end.  The real objection, however, appears to  be that  there is no proof as to the appellant having been  the author  of these messages.  It is true that under s.  88  of the  Evidence  Act  there is a  presumption  only  that  the message  received  by  the addressee  corresponds  with  the message delivered for transmission at the office of  origin. There is no presumption as to the person who delivered  such a  message  for  transmission.   But  here  again  proof  of authorship  of  the message need not be direct  and  may  be circumstantial  as has been explained above in the  case  of letters.   The  contents of the messages  received,  in  the context  of  the chain of correspondence  may  well  furnish proof  of the authorship of the messages at the  dispatching end.   A  number of other minor objections  have  been  also raised   before  us  connected  with  the  proof  of   these telegrams.   They have all been fully dealt with by  one  of the  learned  Judges  of  the High  Court.   Most  of  these objections ate unsubstantial and it is enough to say that we are  in general agreement with the conclusions of  the  High Court in this matter. As  regards both the letters and the telegrams  considerable argument  was  attempted before us as to the mode  in  which they were let in for proof in the course of the  examination of  the  witnesses.   But  in  the  absence  of  any   clear indication  on the record that any objection in that  behalf was  seriously taken, we could not permit any  challenge  in this behalf. We  may  add  that as regards the  main  objection  both  in respect  of letters as well as telegrams, viz., the  use  of the contents of the disputed documents, for proof 345 thereof  there is this that could be said, viz., in view  of the fact that quite a large number of the documents are  not admitted  and only a few have been held to be’  admitted  or indubitably  proved it may have been a question open  before the  Court  of  appeal whether the  internal  evidence  with reference to such a large mass of correspondence  subtantial portion  of  which is disputed was adequate to arrive  at  a satisfactory  conclusion  as  to the  genuineness  of  these documents.   That question is not open before us.  But  even if we were inclined to go into this, it was well nigh impos- sible, having regard to the fact that most of the  documents relied  upon  by the trial court as well  as  the  appellate court  have  not  been  printed in  the  record  before  us. However, there is no reason to think that the learned Judges who  have  considered the matter very elaborately  have  not come  to  a satisfactory conclusion.  They  have  acted  not merely on the internal evidence of the documents but also on the  oral evidence of three main witnesses, viz.,  the  com- plainant,  Jasawalla  and  Sequeria, each  set  of  evidence having  been considered as affirmative of the other  and  in the  aggregate  as proving the authorship  of  the  disputed documents. The  fourth  contention raised by  the  appellant’s  counsel relates to the validity of the conviction under s. 420/34 of

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the Indian Penal Code.  Learned counsel argued that  persons designated as accused 2, 3 and 4 in the complaint, were  all in Bombay and the appellant in Karachi and that therefore no conjoint offence could be committed by them within the mean- ing  of s. 34 of the Indian Penal Code.  He relies upon  the dictum  in  Shreekantiah Ramayya Munipalli v. The  State  of Bombay  (1)  to  the effect that it is  essential  that  the accused  should join in the " actual doing " of the act  and not  merely in planning its perpetration.  We do  not  think that case or the dictum therein relied on, have any  bearing on  the facts of the present case.  It is also necessary  to observe that what in fact has been found in this case is the commission of the offence by the appellant himself.   Though the  trial Magistrate and one of the learned Judges  of  the High (1)  [1955] 1 S.C.R. 177, 1188. 346 Court  referred to the conviction as a conviction  under  s. 420/34 of the Indian Penal Code, the actual findings support a  conviction of the appellant under s. 420 itself.  Such  a conviction would be valid though the charge is under s.  420 read  with  s.  34 of the Indian  Penal  Code,  (See  Willie (William) Slaney v. The State of Madhya Pradesh (1),  unless prejudice is shown to have occurred. Thus there is no substance in contentions 3 and 4. Contention  No. 2 arises under the following  circumstances. It  appears  that the appellant  was  previously  undergoing trial  in the Court of the Sessions Judge at Bombay for  the offences of forgery and fraud and was on bail in  connection with  that trial.  While thus on bail he fled away first  to Pakistan and from there to England.  The Indian  authorities made  an  application to the  Metropolitan  Magistrate,  Bow Street,  under  the Fugitive Offenders Act,  for  his  being arrested  and surrendered.  That application was granted  by the  Magistrate.  Thereupon the appellant moved  the  Queens Bench  Division of the High Court in England for a  writ  of habeas  corpus  challenging the validity of his  arrest  and surrender  to  the  Indian authorities.   Judgment  of  Lord Goddard  C. J. dealing with this matter is reported  as  Re. Government  of  India  and  Mubarak  Ali  Ahmed  (2).    The application  was dismissed and the order for surrender  made under  the  Fugitive Offenders Act was upheld.   It  appears that  when  he was brought back to Bombay and  was  in  jail custody  with reference to the resumed sessions  trial,  the complainant got to know about it and filed his complaint  on June  30., 1952.  The Presidency Magistrate took it  on  his file  and  issued warrant against the accused  and  had  him brought  up  before  his  court  in  due  course  for  trial (presumably  after the sessions trial was  completed).   The objection raised before us is that the appellant having been surrendered by the order of the Metropolitan Magistrate only for  the  sessions trial which was pending  against  him  in Bombay, he could not be tried for any other offence said  to have been committed by him in India. (1) [1955] 2 S.C.R. 1140. (2) [1952] 1 All E.R. 1060. 347 Learned  counsel relies on s. 3(2) of the  English  Extradi- tion Act, 1870 (33 & 34 Vict. c. 52) which shows that, it is contemplated thereby that a fugitive criminal’ who has  been surrendered  under  the  Extradition Act  in  respect  of  a particular offence should not be tried for any other offence until he has been restored or has been given an  opportunity of returning.  This section, however, has no bearing in  the present  case, since, as already stated, the  appellant  was

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surrendered under the Fugitive Offenders Act which  contains no analogous provision.  Section 8 of the Fugitive Offenders Act  only  provides  for an  optional  repatriation  of  the surrendered person at his request if he is acquitted of  the offence for which he is surrendered.  Learned counsel  urges that  the  principle  underlying  s.  3(2)  of  the  English Extradition  Act  is  a general one and that  it  should  be applied  by analogy also to a surrender under  the  Fugitive Offenders Act.  We are unable to accede to that  contention. It  may also be mentioned that even if his arrest  in  India for the purpose of a trial in respect of a fresh offence  is considered  not  to  be justified,  this  by  itself  cannot vitiate  the conviction following upon his trial.   This  is now  well-settled  by  a series of  cases.  (See  Parbhu  v. Emperor(1)  ; Lumbhardar Zutshi v. The King (2) ; and H.  N. Rishbud  v.  The State of Delhi (3 ). This  contention  must accordingly be overruled. We are left, therefore, with the first contention raised  by the  learned  counsel for the appellant which  is  the  only substantial   question  that  has  been  raised  before   us requiring careful consideration. The  first contention is raised on the assumption  that  the appellant is a Pakistani national.  At the outset, it may be stated that it is doubtful whether in fact the appellant  at the  time  of the offence could be  considered  a  Pakistani national.   The complainant asserted in his complaint,  that he  came to know the appellant to be an Indian  citizen  and described  him  as hailing from Hyderabad  (Deccan)  and  as having absconded to Pakistan and from there to England.  In (1)  A.I.R. (1944) P.C. 73. (2)  A.I.R. (1950) P.C. 26 45 (3) (1955) 1 S.C R. 1150, 1 163. 348 a long written-statement filed after the prosecution  closed its case, the appellant himself gave details of his previous history  from  the year 1928.  He stated that  he  became  a Graduate  with Honours from the Punjab University  in  1928, that  he  joined the Indian Finance Service  and  served  in various capacities and at various places, that he ultimately resigned  from the Government service in 1943 and joined  an industrial concern at Hyderabad (Deccan), that he did a  lot of business there and that he entered into a large  business contract with the Government of Hyderabad, which was revived by  the  Military Government after the  Police  Action.   He winds  up  the narration of his previous  history  with  the following significant statement. "  The  contract was satisfactorily fulfilled  prior  to  my migration to Pakistan in July, 1950.  " This  is  a categorical statement of the  appellant  himself which shows that he continued to be in India till July 1950. If  so, it appears _prima facie that by virtue of Art. 5  of the Constitution read with Art. 7 thereof, he was a  citizen of India on the date of the Constitution and continued to be so  at the date of the offence in July-August, 1951,  unless he  shows  that  under  Art.  9  of  the  Constitution,   he voluntarily  acquired  the citizenship of a  foreign  State. Prima facie mere migration to Pakistan is not enough to show that he bad lost Indian citizenship.  This question has  not been considered or dealt with in the courts below,  probably because  it  was not properly raised at  the  early  stages. Being  a fundamental objection to jurisdiction  this  should have been raised at the trial by the appellant (accused), at any  rate, soon after the charge was framed.  We might  well have   declined,  therefore,  to  permit  the  question   of

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jurisdiction  in this specific form to be argued before  us. But the learned Judges of the High Court have entertained it and  dealt  with  it  on  the  stated  assumption  that  the appellant   is  a  Pakistani  national.   To  overrule   the objection at this stage without finally deciding whether the appellant continues to be an Indian citizen (after remanding for  additional finding, if need be,) would not be  fair  or satisfactory.  In the circumstances we have felt it 349 desirable  to  allow  arguments  to  proceed  on  the   same assumption  which the High Court has made.   We,  therefore, proceed to deal with it. The  learned  Judges of the High Court decided  against  the objection  of  the appellant as to the jurisdiction  of  the court to try him for the alleged offence relying on s. 179 of the Code of Criminal Procedure which provides as follows: " When a person is accused of the commission of any  offence by  reason  of  anything which has been  done,  and  of  any consequence  which has ensued, such offence may be  inquired into  or tried by a Court within the local limits  of  whose jurisdiction  any  such  thing has been done,  or  any  such consequence has ensued." In view of the above provision, the learned Judges say as follows : " Even upon the footing that the representations were  made, or  the deception was practised by the appellant,  while  he was  in Pakistan, the consequence of the deception,  namely, the delivery of the property, took place in Bombay.  " They  held that the appellant could, therefore, be tried  in Bombay  in respect of the delivery of the money  in  Bombay. The  argument  of the learned counsel for the  appellant  is that  s. 179 of the Code of Criminal Procedure  proceeds  on the assumption that the person to be tried is  substantively liable  for an offence under the Indian Penal Code and  that s. 179 prescribes the place of trial but does not create the liability.  He urges that since the appellant is a Pakistani national  who  was not physically present at Bombay  at  any stage  of  the commission of the offence, the  Indian  Penal Code has no application to him.  He is therefore not  liable for an offence under the Penal Code and hence is not triable under s. 179 of the Code of Criminal Procedure.  It  appears from  s.  5(1) of the Code of Criminal  Procedure  that  the provisions  of the said Code relating to the place of  trial assume  the  existence of substantive  liability  under  the Indian Penal Code or under any other law.  Section 5(1) says that  "  all offences under the Indian Penal Code  shall  be investigated, inquired into, tried and otherwise dealt                             350 with according to the provisions hereinafter contained." Now the  point raised by the learned counsel is that to  hold  a person in the position of appellant substantively liable for the offence charged against him in the circumstances of this case,  would  be to give extraterritorial operation  to  the provisions of the Indian Penal Code.  He contends that  such extra-territorial  operation  can  only  be  by  reason   of specific legislation in this behalf and does not arise  from any general provisions of the Indian Penal Code. To deal with this contention, it is necessary to  appreciate clearly the basic facts found in this case.  The offence  of cheating under s. 420 of the Penal Code as defined in s. 415 of the Code has two essential ingredients, viz., (1) deceit, i.e., dishonest or fraudulent misrepresentation to a person, and  (2)  the  inducing of that person  thereby  to  deliver property.   In the present case the volume of  evidence  set out  above  and  the facts found to be true  show  that  the appellant  though at Karachi was making  representations  to

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the  complainant  through letters, telegrams  and  telephone talks, some times directly to the complainant and some times through Jasawalla, that he had ready stock of rice, that  he had reserved shipping space and that on receipt of money  he would  be in a position to ship the rice  forthwith.   These representations  were  made to the  complainant  at  Bombay, notwithstanding   that   the  appellant   was   making   the representations  from Karachi.  The position is quite  clear where the representations were made through the trunk phone. The  statement  of the appellant at the Karachi-end  of  the telephone  becomes a representation to the complainant  only when it reaches cognition of the complainant at the  Bombay- end.   This  indeed  has not been  disputed.   It  makes  no difference in principle if the representations have in  some stages  been  conveyed  by telegrams or by  letters  to  the complainant  directly  or  to some one  of  the  appellant’s agents, including Jasawalla in that category.  There is also no question that it is as a result of these  representations that  the complainant’ parted with his money to the tune  of about Rs. 5 1/2 lakhs on three different dates.  It has been found that the 351 representations  were  made without being supported  by  the requisite facts and that this was so to the knowledge of the appellant and that the representations were so made with  an initial  dishonest  intention.  On these facts it  is  clear that  all the ingredients necessary for finding the  offence of  cheating under s. 420 read with s. 415 have occurred  at Bombay.   In that sense the entire offence was committed  at Bombay  and  not merely the consequence, viz.,  delivery  of money,  which  was one of the ingredients  of  the  offence. Learned   counsel  for  the  appellant  has  not   seriously contested  this  position.  But he urges that  even  so  the appellant  who was not corporeally present in India  at  the relevant time does not fall within the purview of the Indian Penal Code.  Now there can be no doubt that prima facie  the Indian Penal Code is intended to deal with all unlawful acts and  omissions defined to be offences and  committed  within India  and  to  provide for the punishment  thereof  of  the person  or persons found guilty therefor.  This is  implicit in the preamble and s. 2 of the Indian Penal Code.  What is, therefore,  to  be seen is whether there is  any  reason  to think  that a foreigner not corporeally present at the  time of  the commission of the offence does not fall  within  the range  of  persons punishable therefor under the  Code.   It appears to us that the answer must be in the negative unless there  is  any  recognised legal  principle  on  which  such exclusion can be founded or the language of the Code compels such  a  construction.   It is  strenuously  urged  that  to consider  a  foreigner guilty under the Penal  Code  for  an offence committed in India though attributable to him and to punish  him therefor in a case where he is  not  corporeally present in India for the commission of the offence, would be to give extraterritorial operation to the Indian Penal  Code and   that  an  interpretation  which  brings  such   extra- territorial  operation  must be avoided.  The  case  of  the Privy  Council in Macleod v. Attorney-General for New  South Wales(1)  is relied upon.  But this argument is based  on  a misconception.   The  fastening of criminal liability  on  a foreigner in respect of culpable acts or omissions (1)  (1891) A.C. 455. 352 in   India  which  are  juridically  attributable   to   him notwithstanding that he is corporeally present outside India at the time, is not to give any extra-territorial  operation

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to  the  law;  for it is in respect  of  an  offence,  whose locality is in India, that the liability is fastened on  the person  and  the punishment is awarded by the  law,  if  his presence  in India for the trial can be secured.  That  this is part of the ordinary jurisdiction of a Municipal Court is well recognised in the common law of England as appears from Halsbury’s Laws of England (Third Edition) Vol. 10, p.  318. Paragraph  580 therein shows that the exercise  of  criminal jurisdiction  at common law is limited to  crimes  committed within  the  territorial  limits of England  and  para.  581 states  the jurisdiction in respect of acts outside  English territory as follows: "  For the purposes of criminal jurisdiction, an act may  be regarded  as  done within English  territory,  although  the person  who  did the act may be outside the  territory;  for instance,  a person who, being abroad procures  an  innocent agent  or uses the post office to commit a crime in  England is  deemed to commit an act in England.  If a person,  being outside England, initiates an offence, part of the essential elements of which take effect in England, he is amenable  to English  jurisdiction.   It  appears that  even  though  the person who has initiated such an offence is a foreigner,  he can be tried if he subsequently comes to England.  " Thus  the  exercise of criminal jurisdiction in  such  cases under  the common law is exercise of municipal  jurisdiction and  much more so in a case like the present, where all  the ingredients  of  the  offence  occur  within  the  municipal territory. It  would be desirable at this stage to notice certain  well recognised  concepts of International Law bearing on such  a situation.  Wheaton in his book on Elements of International Law  (Fourth  Edition)  at p.  183,  dealing  with  criminal jurisdiction states as follows: By  the  Common Law of England, which has been  adopted,  in this  respect, in the United States, criminal  offences  are considered as altogether local, and are 353 justiciable  only  by the courts of that country  where  the offence is committed.  " At p. 182 thereof it is stated as follows: "  The  judicial power of every independent  State,  extends (with   the   qualifications  mentioned  earlier)   to   the punishment of all offences against the municipal laws of the State, by whomsoever committed, within the territory.  " In  Hackworth’s Digest of International Law (1941  Edition), Vol. 11, at p. 188 there is reference to opinions of certain eminent  American  Judges.   It  is  enough  to  quote   the following dictum of Holmes J. noticed therein : "Acts  done outside a jurisdiction, but intended to  produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at  the effect, if the State should succeed in  getting  him within its power.  " In Hyde’s International Law (Second Edition), Vol. 1, at  p. 798,  the  following  quotation from  the  judgment  of  the permanent Court of International Justice dated September  7, 1927,  in  the  case  relating  to  S.  S.  Lotus  is   very instructive: "  It is certain that the courts of many countries, even  of countries  which  have given their  criminal  legislation  a strictly  territorial character, interpret criminal  law  in the sense that offences, the authors of which at the  moment of  commission  are in the territory of another  State,  are nevertheless to be regarded as having been committed in  the national  territory, if one of the constituent  elements  of

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the  offence,  and more especially its effects,  have  taken place there.  " This  quotation is also noticed in Openheim’s  International Law (Eighth Ed.),   Vol.   1 at p. 332 in the footnote.   In noticing the provisions of International Law in this context we  are  conscious  that what we have to deal  with  in  the present  case is a question merely of municipal law and  not of  any  International  Law.   But as  is  seen  above,  the principles recognised in (1) Publications, Permanent Court of International  justice, Series A, Nos. 10, 23. 354 International Law in this behalf are virtually based on  the recognition  of  those principles in the  municipal  law  of various  countries  and  is  really  part  of  the   general jurisprudence  relating  to  criminal  responsibility  under municipal  law.   No  doubt some of  the  above  dicta  have reference  to offences actually committed outside the  State by  foreigners and treated as offences committed within  the State  by specific legislation.  But the principle  emerging therefrom  is  clear that once it is  treated  as  committed within the State the fact that he is a foreigner corporeally present  outside  at  the  time of  such  commission  is  no objection  to the exercise of municipal  jurisdiction  under the  municipal  law.   This emphasizes  the  principle  that exercise of criminal jurisdiction depends on the locality of the  offence  and  not on the  nationality  of  the  alleged offender   (except  in  a  few  specified  cases   such   as ambassadors, Princes etc.). Learned  counsel  for the appellant has  relied  on  various passages in the judgment of Cockburn C.J. in the  well-known case  The  Queen v. Keyn (Franconia’s case)  (1).   Fourteen learned  Judges  participated  in that  case  and  the  case appears to have been argued twice.  Eight of them  including Cockburn  C.J. formed the majority.  Undoubtedly  there  are various  passages  in the judgment of  Cockburn  C.J.  which _prima  facie seem capable of being urged in favour  of  the appellant’s contention.  In particular the following passage at p. 235 may be noticed: "The  question  is not whether the death  of  the  deceased, which no doubt took place in a British ship, was the act  of the  defendant in such ship, but whether the  defendant,  at the  time  the  act was done,  was  himself  within  British jurisdiction." The  learned  Chief Justice, however, recognised at  p.  237 that there were certain American decisions to the  contrary. Now  the main debate in that case was whether the sea up  to three mile limit from the shore is part of British territory or whether in respect of such three mile limit only  limited and defined extra territorial British jurisdiction  extended which did not (1)  (1876) 2 Ex.D. 63. 355 include  the  particular criminal  jurisdiction  under  con- sideration.  In respect of this question, as a result of the judgment, the Parliament had to enact the Territorial Waters Jurisdiction  Act,  1878  (41 & 42 Vict., c.  73)  which  in substance  overruled  the view of the majority  and  of  the learned Chief Justice on this point.  The main principle  of criminal jurisdiction, however, relevant for our purpose was enunciated  in the minority judgment of Amphlett, J. A.,  at p.  118,  that  "it  is the locality  of  the  offence  that determines’ the jurisdiction " implying by contrast that  it is not the nationality of the offender.

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The question, however, that still remains for  consideration is whether there is anything in the language of the sections of  the Indian Penal Code relating to the general scheme  of the  Code  which compels the construction that  the  various sections  of the Penal Code are not intended to apply  to  a foreigner  who has committed an offence in India  while  not being  corporeally  present therein at the time.   For  this purpose  we are not concerned with such of the  sections  of the  Penal Code, if any, which indicate the actual  presence of the culprit as a necessary ingredient of the offence.  Of course,  for  such  offences a foreigner  ex  hypothesi  not present  at  the time in India cannot be guilty.   The  only general sections of the Indian Penal Code which indicate its scheme  in this behalf are ss. 2,3, and 4 and as they  stand at present, they are as follows: "  2. Every person shall be liable to punishment under  this Code and not otherwise for every act or omission contrary to the  provisions thereof, of which he shall be guilty  within India. 3.   Any  person liable, by any Indian law, to be tried  for an  offence  committed  beyond India  shall  be  dealt  with according  to  the  provisions  of this  Code  for  any  act committed beyond India in the same manner as if such act had been committed within India. 4.   The  provisions of this Code apply also to any  offence committed by- (1)  any  citizen of India in any place without  and  beyond India; 46 356 (2)  any person on any ship or aircraft registered in  India wherever it may be. Explanation:-In  this  section the word  ’offence’  includes every  act  committed outside India which, if  committed  in India, would be punishable under this Code." Sections  3  and 4 deal with offences committed  beyond  the territorial  limits  of  India and s.  2  obviously  and  by contrast  refers  to offences committed  within  India.   It appears  clear  that  it is s. 2 that has to  be  looked  to determine  the liability and punishment of persons who  have committed  offences  within  India.   The  section   asserts categorically   that  every  person  shall  be   liable   to punishment under the Code for every act or omission contrary to  the  provisions  of the Code and of which  he  shall  be guilty within India.  This recognises the general  principle of criminal jurisdiction over persons with reference to  the locality  of  the offence committed by  them,  being  within India.   The use of the phrase " every person " in s.  2  as contrasted with the use of the phrase "any person " in s.  3 as  well as s. 4 (2) of the Code is indicative of  the  idea that  to the extent that the guilt for an offence  committed within  India  can  be attributed to a  person,  every  such person without exception is liable for punishment under  the Code.   Learned counsel for the appellant suggests that  the phrase " within India " towards the end of s. 2 must be read with the phrase " every person " at the commencement thereof But this is far-fetched and untenable.  The plain meaning of the  phrase  "  every person " is that  it  comprehends  all persons without limitation and irrespective of  nationality, allegiance,  rank,  status, caste, colour  or  creed.   This section  must  be understood as comprehending  every  person without  exception barring such as may be  specially  exempt from criminal proceedings or punishment thereunder by virtue of  the Constitution (See Art. 361 (2) of the  Constitution) or any statutory provisions or some wellrecognised principle

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of   international   law,  such   as   foreign   sovereigns, ambassadors, diplomatic agents and so forth, accepted in the municipal law. 357 Learned  counsel drew our attention to a number of  sections in the Penal Code, viz., ss. 108A, 177, 203, 212, 216,  216A and 236.  The argument based on reference to these  sections is  that wherever the legislature in framing the Penal  Code wanted  to  legislate about anything that has  reference  to something done outside India it has specifically said so and that  therefore it may be expected that if it  was  intended that the Penal Code would refer to a person actually present outside India at the time of the commission of the  offence, it would have specifically said so.  We are unable to accept this argument.  These sections have reference to  particular difficulties  which  arose  with reference to  what  may  be called,  a related offence being committed in India  in  the context   of  the  principal  offence  itself  having   been committed  outside  India-that is  for  instance,  abetment, giving  false  information and harbouring  within  India  in respect of offences outside India.  Questions arose in  such cases as to whether any criminal liability would arise  with reference  to  the related offence,  the  principal  offence itself not being punishable in India and these sections were intended  to  rectify  the lacunas.  On the  other  hand,  a reference  to s. 3 of the Code clearly indicates that it  is implicit  therein  that a foreigner who commits  an  offence within  India is guilty and can be punished as such  without any limitation as to his corporeal presence in India at  the time.  For if it were not so, the legal fiction implicit  in the phrase "as if such act had been committed within  India" in s. 3 would not have been limited to the supposition  that such  act  had been committed within India, but  would  have extended  also to a fiction as to his physical  presence  at the time in India. In the argument before us, there has been some debate as  to what exactly is the implication of the clause " of which  he shall  be guilty within India " in s. 2 of the Code.  It  is unnecessary  to come to any definite conclusion  in  respect thereto.   But  it  is clear that it does  not  support  the contention of the appellant’s counsel.  We have,  therefore, no doubt that on a plain reading of s. 2 of the Penal  Code, the Code does 358 apply  to  a foreigner who has committed an  offence  within India  notwithstanding  that  he  was  corporeally   present outside. It  has  next  been urged before us  that  the  exercise  of jurisdiction over a foreigner by municipal courts depends on the theory of temporary allegiance to the State by reason of his  entry  into  the  State,  which  carries  with  it  the protection of its laws and therefore his submission thereto. Dicta from some of the decided cases have been cited  before us.  It is unnecessary to deal with any of those cases.   On an  examination  of  those  cases  it  will  be  found  that allegiance,  temporary or otherwise, has not been laid  down anywhere  as  a limiting principle in  respect  of  criminal jurisdiction, which is primarily concerned with questions of security of the State and of the citizens of the State. A  number  of early cases of the High Courts in  India  have been  brought lo our notice as bearing on the  question  now under  consideration. (See Reg. v. Elmstone, Whitwell (1)  ; Reg. v. Pirtai (2) ; Mussummat Kishen Kour v. The Crown  (3) ; and Gokaldas Amarsee v. Emperor (4).  As against them  may be  noticed the case in Emperor v. Chhotalal Babar (5).   It

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is unnecessary to consider them at any length.   Undoubtedly some  of them seem to support the view pressed before us  on behalf  of the appellant that criminal  jurisdiction  cannot extend to foreigners outside the State.  These, however, are decisions  rendered  at a time when the  competence  of  the Indian  Legislature was considered somewhat  limited,  under the  influence  of  the decisions like  those  in  Macleod’s case(1)  in  spite of the decision in Queen  v.  Burah  (1). However  that  may be these concepts are no  longer  tenable after India became a Dominion by the Indian Independence Act of  1947 and after it became an independent  free  sovereign republic  under the present Constitution.  It is  enough  to refer to the case of Croft v. Dunphy(1) and to the  decision of Spens, C.J., in Governor-General v. Raleigh (1)  (1870)  7 Bom. H.C.R. 89 (Cr.  Ca.).(5)  (1912)  I.L.R. 36 Bom. 524. (2) (1873) 10 Bom. H.C.R. 356.     (6) (1891) A.C. 455. (3) (1878) 13 P.R. 49    (7) (1878) 3 A.C. 889. (Criminal judgments).    (8) (1933) A.C. 156. (4)  (1934) 35 Cr.L.J. 585. 359 Investment (1).  In the latter case Spens, C.J.,  indicates. that  there has been considerable change in the  concept  of the doctrine of extra-territorial legislation, subsequent to Macleod’s  case (2) and the criticism of Macleod’s case  (2) in  certain  Canadian  decisions and of  the  Privy  Council itself has been adverted to. Learned counsel invited our attention to a passage from  the report  of the Indian Law Commissioners quoted at p. 274  of Ratanlal’s  Law of Crimes (Eighteenth Ed.). It is enough  to say  that though this quotation may be valuable as a  matter of  history,  it  cannot  be  a  legitimate  guide  for  the construction  of  the section.  That  construction  must  be based  on  the  meaning of the words used,  to  be  gathered according  to  the ordinary rules of interpretation  and  in consonance   with  the  generally  accepted  principles   of exercise of criminal jurisdiction.  It is not necessary  and indeed not permissible to construe the Indian Penal Code  at the  present day in accordance with the notions of  criminal jurisdiction  prevailing  at  the time  when  the  Code  was enacted.   The  notions relating to this  matter  have  very considerably  changed between then and now during  nearly  a century that has elapsed.  It is legitimate to construe  the Code  with reference to the modern needs, wherever  this  is permissible, unless there is anything in the Code or in  any particular section to indicate the contrary. After  giving  our careful consideration  to  the  questions raised before us, we are clearly of the opinion that even on the assumption that the appellant has ceased to be an Indian citizen  and  was a Pakistani national at the  time  of  the commission  of  the  offence, he must  be  held  guilty  and punished under the Indian Penal Code notwithstanding his not being corporeally present in India at the time. We have been asked to consider the question of sentence.  As has been stated ,it the outset the substantive sentences  of imprisonment  are  two  years tinder  the  first  count  and twenty-two  months  under the second.   The  sentences  were concurrent on the second (1) A.I.R. (1944) F.C. 51, 60,61. (2) (1891) A.C. 455. 360 and third counts.  As a result, the total imprisonment which has been awarded against the appellant would be a period  of three years and ten months.  We are not prepared to say that the discretion of the trial Court in awarding that  sentence

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has been wrongly exercised. The appeal is accordingly dismissed. Appeal dismissed.