1. On 27th April 1942, this Court granted a rule nisi against the Chief Presidency Magistrate, Calcutta, and a Mr. S.C. Choudhury to quash certain proceedings pending before the former in which, on the complaint of the latter, a charge had been framed against the petitioner, Omitting formal facts, this charge reads as follows:
That you being a servant of the Chandbali Steamer Service Co., Ltd. of 29, Strand Road, Calcutta, and in that capacity being entrusted with property to wit the monies received and realised by you on behalf of the said company and being bound under the contract of service to deposit the said monies in the Head Office at 29, Strand Road, Calcutta, dishonestly disposed of between 8th October 1941 and 23rd November 1941, the total gross sum of Rs. 7800-4-0 the property of the said Chandbali Steamer Service Co. Ltd., in contravention of the terms of contract of service and thereby committed an offence punishable under Section 408, Penal Code and within my cognizance.
2. The petitioner challenges the jurisdiction of the learned Magistrate, who frankly tells us that he only decided he had jurisdiction after some doubt : nor, in view of the state of the authorities, is this surprising. The question was ably argued before us by counsel for and in opposition to the rule. To determine it at this stage of the proceedings we must look and look only at the charge as framed. We must assume every fact therein alleged to be proved--it is perhaps unnecessary to state that we do so for present purposes only, and that nothing we now say must be taken in any way to prejudice the defence of the petitioner on the merits whenever or wherever he is ultimately tried. Lastly, we must draw every inference consistent with the facts so assumed which tells in the petitioner's favour. So acting, we have to deal with an offence under Section 408, Penal Code, which incorporates Section 405. The latter section provides as follows:
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust'.
3. On the foregoing assumptions it appears that neither the entrustment nor any positive act of conversion of the monies entrusted took place in Calcutta, and such, we are told, the fact is. Indeed, even after a verbal amendment of the charge it (could only be argued that the offence took place in Calcutta if either a breach of contract by pure nonfeasance or a failure to account takes place, necessarily and as a matter of law at the contractual place of performance or at the place where the accounting party ought to account. Apart from any relevant statute or authority neither of these hypotheses appears to us tenable. The actual crime created by Section 405 consists of any one of four acts- 'misappropriation' 'conversion', 'user' or 'disposal' of property. Certainly, the act of one individual may have repercussions anywhere on the earth or in the surrounding atmosphere, but, since the number of positions in space which a single body can simultaneously occupy is strictly limited, to one, it seems to us on principle that a man can personally do an act at that place only where at the material time he physically is. We are fortified in this conclusion by the decision of Mackney J. in Vasanji Khimjee v. Kanji Tokersey ('38) 25 A.I.R. 1938 Rang. 94 and entirely agree with his reasoning.
4. As against this, we have been referred to a number of sections in the Code, of which Section 174 is as good an example as any, in which an offence consists in a mere omission; and learned Counsel for the opposite party says, no doubt correctly, that the offences they create have always been tried at the place where the omitted act ought to have been performed. But he could refer us to no reported case in which the present question was discussed -- for example in which a witness, physically in the Pun-jab, was duly summoned and failed to attend this Court and was tried for his offence in Calcutta. The question may well never have arisen. It appears to us at least open to doubt if he could be so tried. But, however this may be, the offence in each of the sections cited itself consists in an omission, whereas criminal breach of trust always consists, as already stated, in an act. True, failure to account is often convincing evidence of that act: but we must be careful not to confuse evidence of a particular act - in the form of an omission - with the act itself. Section 179,Criminal P.C., however 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.
5. If this matter were res integra (which it certainly is not) it might be grammatically possible so to construe this section as to permit a prosecution for any offence consisting of an act as opposed to an omission either at the place of the act or that of its consequence (even though the consequence formed no necessary ingredient in the offence) provided that there would not in fact have been any prosecution for the act but for its consequence. On this construction, in the unlikely event of child-birth following rape and the perhaps more likely one of the prosecutrix being prepared to forgive the latter if it had not been for the former the child's birth place would be a legitimate venue for its father's trial, a result which is, to say the least, startling. But no High Court, so far as we are aware, has ever taken so wide a view of this section, and it might suffice to say of it that our own High Court has consistently held, for reasons which seem to us convincing, that it is wholly inapplicable to the offence of criminal breach of trust. Be that as it may, this much has not been denied, namely, that to bring the section into operation the consequence referred to must, at the very least, be in fact a necessary consequence of the act constituting the crime : see for example In re Jivandas Savchand ('30) 17 A.I.R. 1930 Bom. 490 and in particular the judgment of Beaumont C.J. with whose reasoning on this particular point we must respectfully agree.
6. In that case a Full Bench decided that Section 179 is inapplicable to criminal breach of trust because loss 'to the principal' is not even a necessary consequence of still less a statutory ingredient in the offence. Regard being had to the nature of a trust, we venture with all deference to think that the introduction of the words 'to the principal' has occasioned a little confusion and, while agreeing in the result, cannot altogether concur in the reasons given for it. If by 'the principal' is meant only 'the creator of the trust,' we should agree that loss to him does not even necessarily follow from the offence, the dishonest messenger who puts in his own pocket and keeps money entrusted to him by a charitable person as and for a gift to an indigent third party leaves his employer not one anna the poorer by what he does. But if it is meant to include 'the beneficiary' we reluctantly disagree : at all events we can imagine no ease in which the beneficiary - often the same person as the creator of the trust - is not at least momentarily poorer by reason of the offence. Even in the case put by Beaumont C.J. at page 76, in which the dishonest agent repents and makes good his defalcation before it is discovered, the loss has, we respectfully think, been suffered when the offence was committed, although it is repaired before any one but the criminal knows of it. To hold otherwise, is, in our humble judgment, to confuse a fact with knowledge of that fact, and, therefore, fallacious.
7. A painful sensation to the victim, though an almost invariable incident of the offence, forms no necessary part of the statutory definition of 'hurt' since Section 319, Penal Code, provides for two other alternative ingredients. If A is lying dead drunk in a highway and B cuts off his thumb without breaking his sleep, it is surely no defence for B to prove that A was run over by a casual steam-roller and killed before he ever recovered consciousness. Nor, we think, is it reasonable, or the true construction of Section 179, Criminal P.C, to hold that it could add to the number of places where B could be tried, if, instead of being run over, A were kidnapped and carried away, still comatose, by a third party to another district. We, therefore, think that the narrowest view of Section 179 to which this Court has always adhered, is correct, namely, that it applies only to those offences which by their very definition consist of an act and its consequence (e. g., culpable homicide, which, omitting matters immaterial for this purpose, consists in 'causing death,') and not therefore to criminal breach of trust. If this be so, it is useless to speculate for cases in which nobody in fact loses by a criminal breach of trust. It is sufficient to say that loss to anybody forms no part of the statutory definition of that offence. If, as we think, Section 179 gives no help to the opposite party, he is driven to contend that the offence is committed by an accounting party who fails to account at the place where he should account, and by a contracting party who disposes of the property in breach of his contract at the place where he has contracted to dispose of it. If this is right, he brings himself directly within Section 181(2), Criminal P.C., which provides for the trial of alleged criminal breaches of trust in the following terms:
The offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within the local limits of whose jurisdiction any part of the property which is the subject of the offence was received or retained by the accused person, or the offence was committed.
8. But, again, neither failure to account nor breach of contract, however dishonest, is actually and in itself the offence which Section 405, Penal Code, defines, but merely evidence of that offence. The question remains whether the authorities compel us to alto the opinion on this question which we have already expressed, and to dissent from the decision of Mackney J. already cited. Some reliance is placed on observations of Alderson B. in Reg v. Davison (1855) 7 Cox. C.C, 158, cited in Halsbury's Laws of England, Edn. 1, Vol. 9, p. 583. The learned Baron, in dealing with the English statutory offence of embezzlement, said that 'where there is no evidence of fraudulent embezzlement except the non-accounting, the venue may be laid in the place where the non-accounting occurred, because the jury may presume that there the fraudulent misappropriation wad made.''
9. But it must be remembered that he was dealing with the Common law of England, which at that date almost wholly regulated English criminal procedure, and our law of procedure is codified. Our Code may be a little obscure on this point and it might be-we do not say that It is-capable of improvement. But unless there is not merely a defect but an obvious gap in it (which there is not) there is no justification under the 'justice, equity and good conscience' clause of the Letters Patent for our saying that English law is the law of Bengal, and introducing into the latter what is, after all, a pure fiction. We cannot, however, help feeling that the learned Baron's observations may have influenced the Allahabad High Court in Emperor v. Mohru Lal : AIR1936All193 . It is certainly true that this decision is irreconcilable with the Rangoon decision already cited and being a decision of a Bench is of higher persuasive authority. But we cannot, with great respect, agree that the fact that a particular event does not happen at point X is any evidence, or gives any ground for assuming that AA, who never was at point X at all, committed at that point an offence at all events one which by its definition consists in an act. Nor can we agree with the reasoning of the Court at p. 649 that Section 405, Penal Code, falls into two parts, one positive and the other negative. It seems to us that to 'use' or to 'dispose of' property is every bit as positive an act as to 'misappropriate' or 'convert' it. Once again, we think that evidence of an act has been confused with the apt it evinces.
10. Similar views were expressed by a Bench of this Court in Gunanda Dhone v. Santi Prakash Nandy : AIR1925Cal613 partly on the strength of a mistake as to exactly what Alderson B. said in Reg v. Davison (1855) 7 Cox. C.C. 158, words being put into the learned Baron's mouth which in fact were those of the learned editor of the relevant article in Hals- bury's Laws of England; and the doctrine that in the absence of positive evidence as to the real place of the offence it may be assumed to have occurred at that place where the accused ought to have accounted was also subscribed by a Bench of this Court in Paul De Flonder v. Emperor : AIR1931Cal528 . This decision purported to follow G.N. Pascal v. Raj Kishore Mathur : AIR1931Cal521 , but in fact the exactly opposite opinion was expressed in that case, and a rule to quash proceedings in Calcutta was discharged merely because the Court was left quite uncertain at the stage at which the matter came before it, where the alleged offence took' place. Consequently, it could not at that stage hold that there was no jurisdiction to try it in Calcutta; it did not decide that there was. For the reasons already given, we prefer the reasoning on the question before us in the latter to that in the former of the two last cited cases which on this point are quite irreconcilable. In this state of the authorities it is unfortunately impossible for us to emulate Pope's. Hare, who in a modest way,
Agreed with every one - like Gay
and we must either make up our own minds about the matter or refer the matter to a Full Bench. Important as it is, the present question hardly seems to us to justify our inflicting on the parties the delay and hardship the latter course necessarily involves. With the assistance we have had from the Bar we have been able to form a clear opinion, which is that on the charge framed - and it is incurable by any amendment suggested to us - the learned Chief Presidency Magistrate has no jurisdiction to entertain the proceedings now in question. The rule to quash them must therefore be made absolute.
11. I agree.