1. I think that the Assistant Sessions Judge is mistaken in supposing that the Deputy Magistrate had no jurisdiction to commit the accused for trial before him for want of a certificate under Section 188 Crl. P.C The complainant is alleged to have entrusted certain jewels at Vellore to the accused a Native Indian subject of His Majesty, for sale on commission for him and the accused is alleged to have dishonestly converted the jewels concerned with the first two counts to his own use by pledging them at Bangalore City and to have dishonestly misappropriated the jewels concerned in the third count at Madras. It was apparently part of the arrangement that the accused should account for the jewels to the complainant at Vellore, or return them or their price at Vellore. His failure to account for the property was a part of the offence, acts including illegal omissions. The loss which was the consequence which ensued occurred at Vellore and this is sufficient under Section 179 Crl. P.C. to give jurisdiction to the Sub-Divisional Magistrate of Tiruvannamalai to commit the case to the Sessions as directed by this Court in Crl. R.C. 191 of 1913. See Queen Empress v. O'Brien I.L.R. (1896) A. 111 and Langridge v. Atkins I.L.R. (1912) A. 29 which explains the case of Sirdar Meru v. Jethabhai Amirbhai : (1906)8BOMLR513 .
2. The illustration (d) to this section is an instance of a criminal act done outside British India and the consequence of the offence ensuing in British Territory
3. The decision of Reg v. Adivigadu I.L.R. (1876) M. 171 based on the Code X of 1872, and relied on by the Assistant Sessions Judge has been superseded by the amendment of Section 410 of the I. P.C. by Act VIII of 1882. The same remark applies to Empress v. Moorga Chetty I.L.R. (1881) B. 338.
4. In Imperator v. Tribhun 8 Cri. L.J. Rep. 530 certain observations are made by two Judges of the Sind Judicial Commissioners' Court to the effect that Section 181(2) applies only as between courts of local jurisdiction in British India and is governed by the provisions of Section 188 Crl. P.C.A similar observation was made by a single Judge of this Court as regards Section 180 in Sessions Judge, Tanjore v. Sundara Singh (1910) M.W.N. 143. But our attention has not been drawn to any decision to the effect that Section 179 must be read as subject to Section 188 ; and the illustration to the section is against such a theory. Even as regards Sections 180 and 181 the decision in Emperor v. Baldewa I.L.R. (1906) A. 372 shows that a British subject who commits a robbery in a Native State and dishonestly retains stolen property in British India can be tried in a British court even without a certificate under Section 188 and this throws doubt on the correctness of the observations in Imperator v. Tribhun 8 Cri. L.J. Rep. 530 and Sessions Judge, Tanjore v. Sundara Singh (1910) M.W.N. 143. Moreover the words 'or the offence was committed' in Section 181(2) and the words 'when a Native Indian subject commits an offence' in Section 188 seem to indicate that the latter section is exclusive of the rule as to jurisdiction arising out of the receipt or retention of misappropriated property.
5. In the cases of Queen Empress v. Kattaperumal (I.L.R. 1889) M. 423 and Emperor v. Kalicharan I.L.R. (1902) A. 256 it does not appear that there was any retention of stolen property in British India.
6. In Crl. M.P. No. 97 of 1911 a Native Indian subject of His Majesty was charged with abetment of an offence which was committed in British India and the commitment was quashed for want of a certificate under Section 188. In this case the only act for which the accused could have been tried was the act of instigation and that took place wholly outside the jurisdiction of British Courts. This decision to some extent supports the theory that Section 180 is governed by Section 188 and it declares that the object of the former section is to give jurisdiction to a court when the offence is not committed within its limits but within the limits of some other British Indian Court. While doubting the correctness of this view when the words of the two sections do not contain anything directly to that effect, I prefer to base my decision upon Section 179 Crl. P.C.
7. I must therefore decline to interfere with the order of commitment in this case.
Sadasiva Aiyar, J.
8. I agree entirely. The scheme of Chapter 15 sub-chapter (A) in which Sections 177 to 189 appear seems to me to be intended to enlarge as much as possible the ambit of the sites in which the trial of an offence might be held and to minimise as much as possible the inconvenience which would be caused to the prosecution, by the success of a technical plea that the offence was not committed within the local limits of the jurisdiction of the trying court. Sections 178 to 184, all confer more extended powers and larger jurisdiction to Courts than would belong to them if the ordinary rule found in Section 177, (namely, that, the enquiry and trial shall take place in the court within the local limits of whose jurisdiction the offence was committed), were carried to its strict logical conclusions. Section 188 comes in (almost at the end of the sub-chapter A) to make three further encroachments on the general rule of Section 177 by enacting that
(a) Where the criminal is a Native Indian Subject of His Majesty and he commits any offence even beyond British India;
(b) Where the criminal is a British subject and he commits an offence in a Native State; and
(c) Where a servant of the King Emperor (whether a British subject or not) commits an offence in a Native State, the offender in all these three cases can be tried at any place where he is found in British India provided that the Political Agent certifies that the charge ought to be inquired into in British India or the Local Government sanctions such inquiry. Surely, the proviso to Section 188 (which section comes in after Sections 178 to 187) could not have been intended to restrict the enlarged liberties and privileges as regards jurisdiction given to the Courts by the previous sections. I should think that Section 188 which follows Sections 179 to 187 was intended rather to draw into the net of the jurisdiction of the British Indian Courts cases, which notwithstanding the full use of Sections 179 to 184 could not be brought within the jurisdiction of any British Indian Court than to restrict by its 1st proviso the extended jurisdictional privileges conferred by Sections 178 to 184 on courts which according to the ordinary rule of Section 177 would not have had jurisdiction. The proviso to Section 188 will come into operation only when the British Indian Court cannot get jurisdiction under Sees. 179 to 184 and has to depend on the first part of Section 188 to get such jurisdiction. I therefore with great respect, dissent from the decisions in Imperator v. Tribhun and Sessions Judge Tanjore v. Sundara Singh (1910) M.W.N. 143 As regards the decision in Crl. M.P. 97 of 1911, while it could be distinguished (as pointed out by my learned brother) as affecting only Section 180 of the group of Sections 179 to 184, I feel loath to make any such distinction as no difference in principle can be made between the extended jurisdiction conferred by Section 180 and the extended jurisdiction given by the other sections.
9. I therefore respectfully dissent from that decision also and refuse to accept the Sessions Judge's reference.