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Pheroze Jehangir Dastoor Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 432 of 1963
Judge
Reported inAIR1964Bom264; (1964)66BOMLR225
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 188; Goa, Daman and Diu (Laws) Regulation, 1962 - Sections 3, 3(1), 3(2) and 5; Indian Penal Code (IPC), 1860 - Sections 3, 4, 114, 120-B, 341, 403, 448 and 454; Constitution of India - Article 240
AppellantPheroze Jehangir Dastoor
RespondentThe State
Appellant AdvocateH.G. Advani and ;G.A. Merchant, Advs.
Respondent AdvocateT.N. Jungawala, ;Rustom S. Daruwala and ;A.N. Banatwala, Advs.;Y.S. Chitale, Hon. Asstt. Govt. Pleader
Excerpt:
.....committed in foreign territory in 1953--foreign territory merged in indian union in 1961 but indian penal code and criminal procedure code extended to such territory in 1963--whether magistrate has jurisdiction to entertain complaint.;the complainant lodged a complaint in the court of a presidency magistrate at bombay on november 5, 1962, alleging that the accused, who was an indian citizen, had committed an offence punishable under the indian penal code, 1860, in 1953 within the territorial limits of daman which was then a foreign territory. on the question whether the magistrate had jurisdiction to entertain the complaint, it was contended by the accused, who appeared before the magistrate, that as daman was included in the union territories with effect from december 20, 1961,..........a regulation (no. 12 of 1933) governing these territories, which was published in the gazette of india dated 22-11-1962. section 3(1) of the. regulation provides: 'the acts, as they sre generally in force in the territories to which they extend, shall extend to goa, daman and diu, subject to the modifications, if any, specified in the schedule'. section 3(2) provides:-'notwithstanding anything contained in sub-section (1) or in the relevant provision, if any, of each such act, for the commencement thereof, the provisions of each such act, shall come into force in goa, daman and diu on. such date as the lieutenant-governor may, by notification in the goa, daman and diu gazette, appoint.' the schedule begins from p. 365 of the gazette and men-lions both the indian penal code and code of.....
Judgment:
ORDER

1. This is an application in revision from the order of the Presidency Magistrate, 17th Court, Mazagaan, Bombay, dismissing the complaint on the ground that ho had no jurisdiction to entertain the same. The material facts may be briefly stated as follows: The complainant lodged a complaint in the Court of the Presidency Magistrate, 16th Court, Esplanade, Bombay, on 5-11-62 alleging that the three accused had committed offences under Sections 120-B, 403, 448, 341, 454 and 114 I. P. C. According to the complainant, these offences were committed in the year 1953 within the territorial limits of Daman, which was then a foreign territory, so far as India is concerned, and was Government hy the Portuguese Government. After the complaint was lodged, process was issued and the accused appeared before the Court on 14-3-1963. They raised the Question about the jurisdiction of tha Presidency Magistrate, Bombay, to entertain the complaint. Thereafter the case was adjourned to 9-5-63 for recording evidence. It was then transferred to the 17th Court, Mazagaon, Bombay. It was contended before the trial Magistrate that since Daman has been included in the Union Territories with effect from 20-12-1961, and since the complaint was lodged after that date, the offences could be tried at the place they were committed. The trial Magistrate held that the offences, which were alleged to have been committed at Daman, could not be inquired into at Bombay, after the merger of Daman with India. He, therefore, dismissed the complaint and discharged the accused, it is against that order that the complainant has come up in revision.

2. Mr. Advani, learned counsel for the complainant, pointed out that the Indian Penal Code and the Code of Criminal Procedure were originally intended lo be extend ed to Goa, Daman and Diu with effect from 1-10-1953, but they were actually extended on 1-11-1963. According io him, so long as these provisions are not extended to these territories, the matter would continue to be governed by the provision of Section 4, I. P. C. and Section 188, Cr. P. C.

3. In order to appreciate this line of reasoning, it is necessary to refer to a few more facts and the relevant provisions of the Constitution of India. The territories ot Goa, Daman and Diu came to be occupied with effect from 20-12-61. On 5-3-62 an Ordinance (No. 2 of 1962) was proclaimed. Section 4 of the Ordinance declared that all laws in force before the appointed day, which is the same as the date of occupation, shall remain in force. Thereafter, on 28-3-62 an Act (No. 1 of 1962) was passed, which was to be deemed to have come into force will effect from 5-3-62. Section 5 of the Act declared that the laws existing since before the appointed day would continue to remain in force. It is not necessary to refer to the other provisions of the Act. The 12th Amendment of the Constitution received the assent of the President on 27-3-62. Section 3 amended Article 240 of the Constitution and Section 2 amended the First Schedule of the Constitution by adding an eighth entry thereto. That takes me to the provisions of Article 240 of the Conslitution, which enables the President to make regulations for the peace, progress and good government of the Union Territory. Goa-Daman and Diu were declared to be Union territories. The First Schedule under the heading 'The Union Territories' mentioned seven territories as being included in that list. Goa, Daman and Diu came to be included as the eighth entry. Under Article 240, the President has got thet power of making reflections for the peace, progress and good government of these territories. The President, in pursuance of Article 240, made a Regulation (No. 12 of 1933) governing these territories, which was published in the Gazette of India dated 22-11-1962. Section 3(1) of the. Regulation provides:

'The Acts, as they sre Generally in force in the territories to which they extend, shall extend to Goa, Daman and Diu, subject to the modifications, if any, specified in the Schedule'.

Section 3(2) provides:-

'Notwithstanding anything contained in Sub-section (1) or in the relevant provision, if any, of each such Act, for the commencement thereof, the provisions of each such Act, shall come into force in Goa, Daman and Diu on. such date as the Lieutenant-Governor may, by notification in the Goa, Daman and Diu Gazette, appoint.'

The Schedule begins from p. 365 of the Gazette and men-lions both the Indian Penal Code and Code of Criminal Procedure. Mr. Jungalwalla, for the accused Nos. 1 and 2. contended that both these enactments must be deemed to have been extended to these territories with effect from the date of passing of the Regulation and for this again, he relied on Seo. '3(1} of the Regulation. All that Section 3[1) provides is that the Acts specified in the schedule shall extend to these territories. Sub-section(1) must be read in conjunction with Sub-section (2), which begins with the non-obstante clause viz.,

'Notwithstanding anything contained in sub-section (1) or in the relevant provision, if any, of each such Act for the commencement thereof. .....'

and proceeds to say that the provisions of each such Act shall come into force in Goa, Daman and Dm on such date as the Lieutenant-Governor may by notification in the Goa, Daman and Diu Gazette, appoint. It is thus clear that the Extension of any of the Acts depends upon a notification promulgated by the Lteutenant-Governor, who will also fix the date from which each of these Acts comes into operation. It is not, therefore', correct to say that merely because the Indian Penal Code and the Code of Criminal Procedure have been mentioned in the Schedule, they must be deemed to have come into operation from the date of the Regulation. Mr. Jungalwalla has been unable to show any notification issued by the Lieutenant-Governor saying that any of these Acts was extended to these territories. Wa find from the Government Gazette dated 20-7-63 that the Lieutenant-Governor issued a notification in exercise of the powers 'conferred by Section 3(2) of the Regulation, under which both the Indian Penal Code and the Code of Civil Procedure came to be extended to these territories with effect from 1-10-1983. It is on this footing that we have to consider the legal position relating to the Court which will have jurisdiction to entertain the complaint lodged on 5-11-1962. It is clear that on the date of the complaint, neither the Indian Penal Code nor the Code of Criminal Procedure was extended to these territories.

4. Section 3, I. P. C. provides:

'Any person liable, by any Indian law, to be tried for an off once 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.'

Section 4, I. P. C. is still more relevant and it runs thus :

'The provisions of this Code apply also to any off-, once committed by-

(1) any citizen of India in any place without andbeyond India;

(2) xxxxx.'

Then there is an explanation, which provides:

'In this section the word 'offence' includes every act committed outside India which, if committed in India,would be punishable under this Code.'

There is one illustration, which is as follows:

'A who is a citizen of India commits a murder inUganda. He can be tried and convicted of murder In any place in india in which he may be found.'

It will thus be seem that so far as an Indian Citizen is concerned he should be deemed to have committed an off once in India, even if he has committed the off once outside the limits of Indian territory and even if the act complained of does not constitute an off once under the law prevailing in the place in which the off once was committed. The illustration relates to the place of trial and in effect says :

'He can be tried and convicted of murder In any place in India in which 'he may be' found.'

Since the off once had been committed beyond the limits of Indian territory, it is obvious that none of the provisions of the Code of Criminal Procedure relating to the place of trial would be attracted to such a case and, herefore, a rule had to be laid down as a matter of conveni once providing that the offender would be tried In the place where he is found. This provision must be read in conjunction with the provisions of Section 188, Cr. P. C.,l which runs thus :

'When an off once is committed by -

(a) any citizen of India in any place without andbeyond India;

(b) xxxxx

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 provisions of Section 4, I. P. C. and Section 188, Cr. P. C. are complementary to one another. What is stated in the form of illustration in Section 4, I. P. C. has been provided for in the body of the statute in Section 188, Cr. P. C.

5. Although it is true that Goa, Daman and Diu came to be merged in the Indian Union with effect from 20-12-1961 and although from that date, they became Union territories, still an offender could not be tried in Daman territory by Daman Courts for an off once committed by him in 1953, when the offender was an Indian citizen and the off once falls within the purview of Sees. 3 and 4, I. P. C. It is the data of the offence, which would be determinative of the issue and on the date of the offence, the matter was governed by the provisions of Ss. 3 and 4, I. P. C. and Section 188, Cr. P. C. That position would continue unchanged till the extension of the provisions of the Indian Penal Code and the Code of Criminal Procedure to Goa, Daman and Diu territories. The trial Magistrate seems to have assumed that the Daman Court will have jurisdiction to try the offences by reason of the fact these territories became Union territories with effect from 20-12-1961. It may be that under the law prevailing in Daman territory, the acts complained of also constituted offences. But that is neither here nor there. The acts complained of constituted offences within the meaning of Ss. 3 and 4, I. P. C. snd could be tried at any place where the accused is found as laid down in Section 188, Cr. P. C. I will consider the meaning of the expression 'at any place within India at which he may be found' presently. For the time being, I will content myself with holding that in so far as the matter is governed by the provisions of Sections 3 and 4, I. P. C. and Section 188, Cr. P. C. the accused persons are liable to be tried in' the Indian Court of competent jurisdiction, and for this purpose, the date of the complaint viz., 5-11-1962 is relevant. It is necessary to note that after the complaint was lodged, process came to be issued which means that cognizance of the offences was taken by the Presidency Magistrate In Bombay.

6. The trial Magistrate has almost in a summary fashion held that the provisions of S, 188, Cr. P. C. do not apply to the present case by reason of the fact that these territories became Union territories with effect from 20-12-1961. This view Is wrong for the reasons mentioned above. In my view, the case is governed by the provisions of Section 188, Cr. P. C. In this connection we have to consider the effect of the first provision to Section 188, Cr. P. C., which in effect says:

'..... no charge as to any such offence shall be inquired into in India unless the Political Agent, If there is one, for the territory in which the off once is alleged to have been committed, certifies that, in his opinion, the charge ought to be inquired into in India; and where there is no political agent, the sanction of the State Government shall be required.'

It was contended by Jungalwalla that so long as no sanction, as laid down in the proviso, has been obtained from the appropriate authorities, the case cannot be deemed to have been initiated. On this point, we have clear ruling of this Court in In re, Rambharathi 1LR 47 Bem 907 : AIR 1924 Bom 51 and Emperor v. Sakharam Pandu 12 Bom LR 667. In Ramhharathi's case the Division Bench observes as follows : (Vide p. 911 (o! 1LR Bom) : (at page 52 of AIR).)

'If the only difficulty in the way of the applicant was the abs once of the certificate under Section 188, Cr. P. C. at the date of the complaints we should allow these applications as the certificate has been obtained subsequently.'

In 12 Bom LR 667 which is again a Division Bench decision, it has been held : (vide p. 668) -

'Per Curiam -- This Court does not find any illegality or irregularity in the proceedings of the trial Magis-trale. All he has done is to take some evid once for the complainant. Having taken that, he found that the off once complained of appeared to have been committed within the limits of a Native State and t therefore cognizable only under the conditions specified in the proviso to Section 188 of the Code of Criminal Procedure. That proviso requires that such an off once should not be inquired into without a certificate of the kind mentioned therein. There is nothing in the language of the proviso making illegal the obtaining of the certificate after the complaint has been filed and the inquiry has begun or been completed to the extent that has happened in this case. Section 532, on which the District Magistrate relies, applies only to a commitment to a Sessions Court. We must, therefore, decline to interfere and direct the trial Magistrate to deal with the case according to law.'

A similar view has been taken by the Nagpur High Court in Harnaryan v. Govindram . In that case, the learned Justice has considered the question as to what is meant by taking cognizance and he says that cognizance is taken 'as soon as a Magistrate applies his mind to the suspected commission of an offence.' According to him, it occurs as soon as he reads the complaint and even before he examines the complaint which he is bound to do. At page 247 the learned Judge, after referring to the case In re Rambharathi, ILR 47 Bom 907 : AIR 1924 Bom 51, observed :

'It was also conceded that the abs once of the certificate under Section 188 was not fatal if the certificate had been obtained subsequently.'

Mr. Advani argued that the proviso to Section 188, Cr. P. C. is not applicable to the present case after the merger of Goa, Daman and Diu territories, because that proviso presupposes two classes of territories, one where there is a political agent and the other where there is no political agent. Mr. Advani contended that Goa, Daman and Diu territories would not answer either of these descriptions from the date of the merger from which date these territories became Union territories. Mr. Jungalwalla for accused Nos. 1 and 2 and Mr. Chitale for the State, suggested that since this question was not argued in the trial Court, no final decision be recorded on that question. I have, therefore, left this question open for consideration by the trial Magistrate. But, my object in referring to the proviso to Section 188, Cr, P. C. was to point out the trial Magistrate's' action in taking cognizance of the complaint would not be vitiated merely for the abs once of sanction from the competent authority. If sanction Is necessary, it could be taken at a later stage and in any case before the charge is inquired into. It would be open to the complainant to secure sanction of the State Government. It would be equally open to him to urge-that no sanction is necessary under proviso to Section 188, Cr. P. C. and the trial Magistrate is free to decide the question on its own merits.

7. Turning to the question as to whether the accused could be said to have been found within, the limits of the City of Bombay, it is sufficient to refer to the commentary of Ramnath lyer on the Code of Criminal Procedure, Volume I, 1956 Edition, relating to Section 188, Cr. P. C at page 642 wherein the learned author says:

'The word 'found' in the group of words 'at which he may be found' used in Section 188, Cr. P. C. means found-by the Court at the time when the matter comes up for trial, that is to say, any Court which is otherwise competent to try the off once can take seisin the moment ihe accused appears in its presence. How he gets there is immaterial. It does not matter whether he comes voluntarily or in answer to a summons or under illegal arrestIt is not disputed that the accused in the present casa and appear before the trial Magistrate. Therefore, there is no difficulty for the Magistrate in inquiring into the charge levelled against the accused so far as the question as to whether thet accused were found in Bombay is concerned.

8. Mr. Banatwala, for accused No. 3, contends that accused No. 3 was not an Indian citizen on the date of the offence. According to him, on the date of the off once accused No. 3 was a foreigner i.e., a citizen of Portuguese Ooa. He therefore, requested that this question should also be left open for consideration by the Magistrate. I see no objection in doing so.

9. The result is that the application is allowed and the case is sent back to the Presidency Magistrate, 16th Court, Esplanade, Bombay, who had taken cognizance of this case, to proceed according to law and in the light of the above observations.

10. Application allowed.


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