Mobarik Ali Ahmed vs The State of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 200 of 1956

Decision Date: 6 September 1957

Coram: B. Jagannadhadas, Syed Jaffer Imam, P. Govinda Menon

In this case the Supreme Court of India rendered its judgment on 6 September 1957. The judgment was authored by Justice B. Jagannadhadas and the bench was composed of Justices B. Jagannadhadas, Syed Jaffer Imam and P. Govinda Menon. The petitioner was Mobarik Ali Ahmed and the respondent was the State of Bombay. The case is reported at 1957 AIR 857 and 1958 SCR 328. The matters before the Court involved provisions of the Criminal Law relating to a foreign national who was a resident outside India, the liability for an offence allegedly committed in India, the legality of a conviction by an Indian court under the Indian Penal Code, the validity of an extradition and subsequent arrest for a fresh offence, and the interpretation of charges under sections 420 read with 34 of the Indian Penal Code together with provisions of the Extradition Act 1870, the Fugitive Offenders Act 1881 and sections 2, 34 and 420 of the Indian Penal Code (Act XLV of 1860).

The headnote records that the appellant, a Pakistani citizen who conducted business in Karachi, was found guilty of cheating under section 420 of the Indian Penal Code. The prosecution alleged that the appellant, with dishonest intent, sent letters, telegrams and made telephone communications to the complainant in Bombay claiming that he possessed ready stock of rice, that he had reserved shipping space and that, upon receipt of money, he would be able to ship the rice immediately. Relying on these representations, the complainant, who needed to import rice urgently, transferred the amount to the appellant. The appellant challenged the conviction on three grounds. First, he argued that as a Pakistani national who never set foot in India during the alleged offence and remained in Karachi, he could not be tried by an Indian court nor punished under the Indian Penal Code. Second, he contended that he had been brought from England to India through extradition proceedings related to a different offence pending trial in the Bombay Sessions Court, and therefore could not validly be tried and convicted for the present offence. Third, he maintained that the charge, which read section 420 together with section 34 for alleged joint acts with three other individuals who were not before the Court, could not sustain a conviction because he himself had not been present in Bombay at the relevant time. The Court held, first, that all the elements constituting the offence of cheating under section 420 had occurred in Bombay, making the place of the offence Bombay, and that although the appellant was not physically present in India at the time, his conviction under the Indian Penal Code was valid pursuant to the provisions of section 2 of that Code. The Court’s second point began by stating that, as the appellant was

The Court observed that the appellant had surrendered to the Indian authorities pursuant to the Fugitive Offenders Act, 1881, and noted that the statute contained no provision barring his arrest in India for the purpose of trial on a fresh offence; consequently, the conviction that followed his trial was deemed valid, a position supported by the precedent set in H. N. Rishbud v. The State of Delhi, (1955) 1 S.C.R. 250. The Court further held that the appellant’s conviction under section 420 of the Indian Penal Code remained valid even though the charge was framed under section 420 read with section 34, because the factual findings of the case were sufficient to sustain a conviction solely on the basis of section 420; this reasoning was reinforced by the authority of Willie (William Slaney) v. The State of Madhya Pradesh, (1955) 2 S.C.R. 240. The judgment proceeded to outline the procedural history: this matter was a criminal appeal under special leave, identified as Criminal Appeal No. 200 of 1956, arising from the judgment and order dated 20 July 1954 of the Bombay High Court in Criminal Appeal No. 1596 of 1953, which in turn stemmed from the judgment and order dated 23 September 1953 of the Court of the Additional Chief Presidency Magistrate, Third Court, Esplanade, Bombay, in Case No. 31/W of 1953. Counsel for the appellant, A. P. Gandhi and J. B. Dadachanji, appeared for the appellant, while counsel for the respondent, H. J. Umrigar and R. H. Dhebar, represented the State. The judgment, delivered on 6 September 1957 by Justice Jagannadhadas, recorded that the appellant had been convicted by the learned Presidency Magistrate, Third Court, Esplanade, Bombay, for cheating under section 420 read with section 34 of the Indian Penal Code on three separate counts: the first involving a sum of Rs. 81,000, the second a sum of Rs. 2,30,000, and the third a sum of Rs. 2,36,900. The magistrate sentenced the appellant 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 to two months’ rigorous imprisonment on the third count, ordering that the substantive sentences on the second and third counts run concurrently. The prosecution was initiated by a private complaint filed on 30 June 1952 by Louis Anton Cornea against four individuals, with the appellant identified as the first accused, Santram as the fourth accused, and A. A. Rowji and S. A. Rowji as the second and third accused respectively. Bailable warrants were issued against all four, but execution of the warrants failed against accused 2, 3, and 4, who were reported as absconding; consequently, the trial proceeded solely against the first accused, the appellant. The convictions and sentences were affirmed on appeal by the Bombay High Court. The complainant was described as a businessman from Goa, serving as director of a firm trading under the name Colonial Limitada, engaged in import-export activities.

In the period concerned there was a severe shortage of rice in Goa, which made the complainant, a businessman and director of a firm trading as Colonial Limitada, anxious to import rice promptly. He contacted a friend in Bombay named Rosario Carvalho, who acted as a commission agent. Carvalho, in turn, approached another commission agent in Bombay, Jasawalla, who operated under the name Universal Supply Corporation. Jasawalla had previously corresponded with the appellant regarding rice transactions. At that time the appellant was residing in Karachi and conducting business under the names Atlas Industrial and Trading Corporation and Ifthiar Ahmed & Co. The complainant’s telegraphic address was “Colodingco” whereas the appellant’s telegraphic address was “Ifthy”. Through a series of telegrams, letters and telephone messages exchanged between Jasawalla and the appellant on one side and between Jasawalla and the complainant on the other, and subsequently through direct telephone, telegram and letter communications between the appellant and the complainant, a contract was concluded for the purchase by the complainant of one thousand two hundred tons of rice at the rate of fifty-one rupees per ton to be shipped from Karachi to Goa. Initially the contract appeared to require payment of the price in sterling at Karachi. However, the prosecution case, which was accepted by the lower courts, asserted that the parties subsequently agreed that payment would be made in Bombay in Indian currency because of difficulties in opening a letter of credit in a Karachi bank through a Portuguese bank in Goa. The same prosecution case also stated that the parties understood that the complainant would pay twenty-five percent of the price as an advance to Jasawalla, acting as the appellant’s agent, and that upon receipt of notice of this advance the appellant would ship the rice, with the balance to be paid upon presentation of the shipping documents. Later, according to the prosecution, the quantity of rice to be supplied was increased to two thousand tons and the advance was raised to fifty percent of the total price. The appellant, through telephone conversations, telegrams and letters addressed both to Jasawalla and directly to the complainant, represented that he possessed an adequate stock of rice, had reserved space on steamers that were about to depart for Goa, and was ready to ship the rice once the required advance was received. In evidence it was shown that, relying on these assurances, the complainant made payments to Jasawalla, receiving receipts that identified Jasawalla as the appellant’s agent. The payments recorded were: a sum of Rs. 81,000 paid on July 23 1951, and a second payment noted as having been made on a later date, the details of which were listed as item 2 in the record.

The records show that the complainant paid three separate sums to the appellant’s alleged agent, Jasawalla. The first payment of Rs 81,000 was made on 23 July 1951. The second payment of Rs 2,30,000 was made on 28 August 1951. The third payment of Rs 2,36,900 was made on 29 August 1951. All of these amounts were later deemed to have been received by the appellant. It is admitted, however, that no rice was actually shipped to the complainant and that the money was never returned. The appellant’s defence asserted that the sums were not paid to any of his agents, that he never received the money, and that he could not supply the rice because the complainant had failed to open a letter of credit at Karachi or to pay in Pakistani currency. The trial court rejected this defence, found the appellant guilty of the charges, and sentenced him accordingly. To understand the legal arguments presented before this Court, it is necessary to recount the essential facts as determined by the lower courts. The complainant initially approached his friend Carvalho in Bombay for assistance in obtaining rice for consumption in Goa. Carvalho, in turn, contacted Jasawalla. Prior to this, Jasawalla had received a letter dated 5 June 1951 from the appellant offering to conduct rice transactions provided a letter of credit was opened or cash payment was made in Karachi. Carvalho learned of this proposal from Jasawalla and informed the complainant, after which Jasawalla also wrote directly to the complainant.

The complainant responded with a telegram indicating his willingness to open a credit facility if 1,200 tons of rice could be shipped to Goa. On 6 June 1951, Jasawalla forwarded this telegram to the appellant in a letter (Ex P) and asked the appellant for an offer. The appellant replied on 10 June 1951, offering to supply the requested quantity of rice and demanding a 25 percent cash advance. Following further three-party correspondence, the appellant, in a letter dated 26 June 1951, agreed to receive payment in Bombay at a price of £51 per ton. Jasawalla then sent a telegram on 5 July 1951 informing the appellant that the Goa party accepted the 25 percent advance arrangement. The appellant confirmed this acceptance in a letter dated 7 July 1951, but he now requested a 50 percent deposit and set a deadline of 10 July, arguing that the scarcity of rice required swift completion of the deal. Jasawalla communicated this revised demand to the complainant, urging him to provide the funds immediately and warning that any delay would expose the other party to claims for damages. No further information was received by the appellant for several days, after which he dispatched Santram, identified as accused 4 in the complaint, to Bombay to act as his agent and negotiate the matter on the spot.

Santram was sent by the appellant to Bombay with authority to conclude the transaction on the spot. He arranged a contract for the shipment of twelve hundred tons of rice, with the complainant required to pay an advance of Rs 1,50,000 at Bombay as a twenty-five percent deposit toward the price of the rice. Upon receiving this information, the appellant wrote a letter dated July 12 to Jasawalla confirming the arrangement that Santram had secured. Santram then escorted Jasawalla to meet accused 2 and accused 3, introducing them as the appellant’s agents who would receive the monies on his behalf in this transaction. At the same time the appellant continued to send letters to Jasawalla that appeared to try to alter his position by requesting a fifty percent advance deposit. For several days the complainant did not appear in Bombay with the funds. Consequently, the appellant sent a telegram on July 16 asking Jasawalla why there was no further information about the transaction. On July 17 the appellant telegraphed that the steamer S S Olinda was sailing in a few days, that it would be too late to ship the rice, and that the matter must be hurried. The complainant replied on July 18 by telegram that he was coming with the funds and that if the rice was not shipped it might be carried on S S Olinda, which was scheduled to depart on July 21. On the same day the appellant telegraphed Jasawalla asking why the deal was not progressing and stating that he had already reserved space on the steamer leaving on the twenty-first. On July 19 the appellant sent another telegram confirming that space had indeed been reserved, while the complainant also telegraphed that day that he was coming and that at least five hundred tons should be shipped immediately. The complainant arrived in Bombay on July 20; the indent (Ex A) was prepared in triplicate and signed by him that same day. He presented cheques and drafts amounting to Rs 81,000. At this point the complainant sought permission to deposit only Rs 50,000 as a deposit for a shipment of five hundred tons, but the appellant insisted that Rs 1,50,000 be paid as an advance for the full twelve hundred tons. Around July 21 the appellant sent a letter to Jasawalla containing a pro-forma receipt for Rs 1,50,000, signed by the appellant and intended to be used by Jasawalla as he saw fit in connection with the transaction. The receipt, together with other correspondence from the appellant, was shown to the complainant. Jasawalla, in a letter dated July 22, confirmed to the appellant that the shipment of twelve hundred tons of rice had been arranged.

In this case, the appellant and Jasawalla continued negotiations after the initial agreement for one thousand two hundred tons of rice. Jasawalla informed the appellant that a part of the money was ready immediately and the remainder would be supplied within a day or two, amounting to more than Rs 80,000, and that the balance would be paid after confirmation of shipment of the agreed quantity. The appellant accepted this arrangement. On 23 July, Jasawalla called the appellant and said that he would pay the money to accused 2 as directed by the appellant. Later that afternoon both parties proceeded to the office of accused 2, and during that visit another telephone conversation took place between the appellant and Jasawalla. In that call the appellant assured that any payment made to accused 2 would be as effective as a payment made directly to himself. The complainant and Carvalho listened to both the morning and afternoon conversations on a separate line. Following this, the complainant handed Rs 81,000 to Jasawalla, who issued a receipt marked Ex. B on behalf of the appellant, and the amount was subsequently transferred to accused 2. The appellant was notified of this payment by both a telephone call and a telegram. A letter dated 24 July was also sent to the appellant, referring to the telephone and telegram communications and confirming that the sum had been paid. That letter also requested the immediate shipment of the rice, assuring the appellant that the remaining balance would be paid within a week. On the same day the appellant replied by telegram, acknowledging receipt of the messages and stating that he was attempting to book one thousand tons.

According to the prosecution, after receiving the Rs 81,000, the appellant altered his position on 24 July 1951. The facts establishing this change were as follows. On 24 July the appellant telegraphed Jasawalla claiming that the Exchange Controller was causing difficulties in shipping the goods. When Jasawalla protested and insisted on immediate shipment, the appellant sent another telegram on 25 July stating that the difficulties were minor and that space for shipping had already been secured. On the same day Jasawalla telegraphed asking for confirmation that the full quantity of one thousand two hundred tons would be loaded onto the steamer S S Olinda, and he added that if the entire quantity could not be loaded, a portion should be dispatched immediately. The appellant responded by letter on 26 July, acknowledging Jasawalla’s 23 July letter about the receipt of Rs 81,000, and informing that the rice would be shipped on the next steamer, S S Umaria, bound for Malaya, and that the vessel could call at Goa if the quantity to be shipped were increased to two thousand tons. Jasawalla replied on the same day objecting to this new condition. The complainant sent a letter on 27 July to Jasawalla inquiring whether the rice had been shipped on S S Olinda.

On 27 July the appellant transmitted a telegram to Jasawalla requesting a bank guarantee for the balance of the purchase price. Earlier correspondence had not raised any issue of a bank guarantee after Santram, identified as accused 4, had arranged the transaction on the basis of an advance of Rs 1,50,000 paid in cash at Bombay, representing a twenty-five percent deposit.

When Jasawalla received the appellant’s request for a bank guarantee, he replied on the same day, accusing the appellant of altering the terms, of cheating, and of failing to perform his contractual obligations after having received the money. On 30 July the appellant answered both by a letter and by a telegram, promising to ship the rice on the vessel S S Umaria and warning that negotiations would be terminated if the parties lacked confidence in him.

Following this, Jasawalla sent a telegram asking the appellant to fix and communicate the sailing date of S S Umaria. The appellant responded on 1 August, acknowledging receipt of Jasawalla’s letters and attempting to placate him. Jasawalla expressed gratitude and again asked for a definite sailing date for S S Umaria.

In the meantime Jasawalla consulted the shipping agents Mackinons and Mackenzie and was told that the appellant had not reserved any shipping space, leading Jasawalla to consider the appellant’s statements on that point false. He forwarded copies of the entire correspondence with the appellant to the complainant. The letters revealed that the appellant’s position was that the rice would be shipped on S S Umaria only if the cargo could be increased to two thousand tons, and that the appellant claimed to have delayed the vessel’s sailing by two days for that purpose.

The complainant then informed Jasawalla that he was willing to accept the new arrangement for two thousand tons. Jasawalla confirmed this revised deal by a telegram dated 2 August, and by another telegram dated 3 August urged the appellant to expedite the shipment.

Subsequently, on 6 August the appellant addressed a direct telegram to the complainant, requesting that the complainant ask the Portuguese Pro-Consul at Karachi to obtain an exchange guarantee. Between 7 August and 12 August a series of letters and telegrams were exchanged among the complainant, Jasawalla and the appellant. As a result of these efforts, the Pro-Consul, Mr Alphonso, indicated his willingness to provide an exchange guarantee from the State Bank of Pakistan for payment of the rice price in sterling.

On 13 August the appellant wrote to Jasawalla, stating that the State Bank was not insisting on an exchange guarantee; instead, a certificate from the Portuguese authority confirming that the rice was required to replenish the ration shops in Goa would be sufficient. A similar letter was subsequently prepared by the appellant.

In addition to the letter written by the appellant on 14 August to the complainant, the complainant and Jasawalla approached the appropriate authority in Goa, namely Mr Campos, who was the Trade Agent of the Portuguese Government. On 16 August Mr Campos dispatched telegrams 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, the appellant altered his approach. By a telegram dated 20 August 1951, the appellant informed the complainant that the papers before the Government were ready, that he had done his best, but that payment must now be made. The complainant replied on the same day by telegram, stating that he did not understand the contents of the appellant’s message and promising to send the balance on loading. The complainant also notified Jasawalla of the telegrams exchanged between him and the appellant. Further correspondence between the parties followed on 22 August. On that date the appellant sent telegrams both to the complainant and to Jasawalla demanding a ninety-percent deposit as an advance and warning that the transaction would be abandoned if the condition was not complied with. In response, Jasawalla sent a telegram on 22 August to the complainant directing him to come to Bombay. He informed the appellant the same day that the complainant was travelling to Bombay to arrange a fifty-percent deposit and requested that the appellant commence loading. On 24 August Jasawalla wrote a letter to the appellant indicating that the complainant would pay a fifty-percent advance, reduced by any amount already paid, and that the complainant would fly to Karachi to supervise the loading. The appellant then sent a telegram dated 25 August to Jasawalla stating that everything was ready, while hinting at the opening of a letter of credit. Again on 27 August the appellant sent a telegram to Jasawalla declaring that the stocks could not be released unless the agreed arrangement—namely payment of ninety percent—was fulfilled. The complainant subsequently arrived in Bombay with drafts and cheques amounting to about Rs 4,75,000 and contacted both Jasawalla and the appellant by telephone. He paid Rs 2,30,000 on 28 August 1951 to Jasawalla, who issued receipt Ex F on behalf of the appellant. On 29 August the complainant paid a further Rs 2,36,900 to Jasawalla, who issued receipt Ex G on behalf of the appellant. The prosecution alleged, and the court accepted, that both sums were forwarded through the second accused to the appellant and that the appellant acknowledged receipt of these amounts in his correspondence. On 29 August the appellant sent a telegram to Jasawalla stating, “Part consignment received, rest tomorrow, Pentakota for the first certain goods required alongside.” After receiving this telegram, Jasawalla replied by telegram dated 31 August, expressing shock that no…

In this matter, the appellant replied by telegram on 1 September 1951, objecting to the wording used by Jasawalla and stating that although space had been reserved, the company could not wait because the goods were not ready for shipment. On 5 September the appellant wrote to Jasawalla informing him that the vessel S.S. Pentakota had secured the required space and that all preparations for dispatch were complete. Meanwhile, the complainant, feeling nervous and anxious about the transaction’s fulfilment, travelled personally to Karachi on 4 September. The complainant testified that he remained in Karachi for approximately two weeks and was shown several warehouses containing bags of rice that were claimed to belong to the appellant and to be ready for loading; however, he was not permitted to verify whether that stock was intended for his purchase. The complainant entered Karachi on a three-month visa but, after less than two weeks, received a quit-order from the Government of Pakistan on 18 September and was forced to leave the city. He believed that this expulsion had been orchestrated by the appellant. After returning, correspondence between the parties resumed. By a letter dated 21 September, the appellant promised to ship the rice on the vessel S.S. Ismalia, which was scheduled to depart on 3 October rather than in September. A further letter on 23 September reiterated that S.S. Ismalia would arrive on 3 October and not on 26 September. When the appellant wrote on 3 October to inform the complainant that S.S. Ismalia was unavailable, the complainant sent a telegram on 29 September requesting that the goods be shipped on S.S. Shahjehan if Ismalia could not be used. The complainant followed this with a letter on 1 October urging the appellant to dispatch the rice immediately. In response, the appellant telegraphed on 2 October that S.S. Shahjehan would arrive the next day and that he would confirm the position, and on 3 October he sent another telegram stating that loading had commenced. On 6 October the complainant received a telegram from the appellant indicating that shipment on S.S. Shahjehan would not proceed until the demands made in the complainant’s 29 September letter were satisfied. The complainant maintained that he never received such a letter, a view also expressed by Jasawalla, who told the appellant that no letter dated 29 September had been received. By a telegram dated 8 October 1951, Jasawalla urged the appellant to refund the money and terminate the contract. On 12 October the appellant sent a telegram proposing to ship the rice on S.S. Shahjehan scheduled to arrive on 19 October instead of the earlier date of 9 October. Additional telegrams were exchanged thereafter, and the complainant concluded the series of communications with a telegram on 26 October demanding that the appellant ship the rice without further delay.

After the demand to ship the rice immediately or to refund the money, the parties continued to exchange messages. The exchange eventually produced a letter from the appellant to the complainant dated 17 November, in which the appellant denied every allegation that had been made against him. The lower courts held that the facts stated in that letter, together with the many telegrams and letters sent between the parties, had been proved. They also relied on oral testimony chiefly from three individuals: the complainant, a man named Jasawalla, and a former employee of the appellant who had worked in Karachi and was called Sequeria. All of this evidence was accepted by the trial judge and the appellate court after they had examined the various objections and criticisms that had been raised concerning its admissibility. In a dispute of this nature, a preliminary question could arise as to whether the evidence shows merely a breach of civil duty or a criminal offence. The answer to that question depended on whether the complainant, who had handed over approximately five and a half lakh rupees, had done so on the basis of the appellant’s representations and believed them to be true, and whether those representations were in fact false and known to be false by the appellant, and whether the appellant had acted dishonestly from the beginning. The two lower courts found, in unequivocal terms, that the appellant’s conduct satisfied those conditions. Because these determinations were matters of fact, the appellate court held that they could no longer be contested in the present appeal filed by special leave.

The appellant’s counsel then presented four principal contentions. First, he argued that the appellant was a Pakistani citizen who, throughout the period when the alleged offence was committed, never set foot in India and remained in Karachi; consequently, he could not have committed an offence punishable under the Indian Penal Code and could not be tried by an Indian court. Second, the counsel contended that the appellant had been brought from England, where he happened to be, through extradition proceedings related to a different case that was then pending before the Sessions Court at Bombay; therefore, he could not be validly tried and convicted for the present offence. Third, the counsel asserted that the telegrams and letters on which the prosecution relied were proved on material that was legally inadmissible. Fourth, the counsel maintained that the charge, framed under section 420 read with section 34 of the Indian Penal Code for alleged joint acts of the appellant with the persons identified as accused 2, 3 and 4, could not stand because those three accused were not present before the court and the appellant himself had not been in Bombay at the relevant time. The court listened to detailed arguments on each of these points and concluded that the second, third and fourth contentions lacked any substantive merit. Consequently, the court did not invite the State’s counsel to respond to those points, deeming it unnecessary to discuss them at length. The court indicated that those contentions would be dealt with and disposed of at the initial stage of the proceedings.

In order to address the third contention, the Court first examined the letters and telegrams as separate groups of evidence. The letters relied upon by the prosecution were divided into two main categories: first, letters that the appellant had allegedly sent either to Jasawalla or to the complainant; second, letters that were said to have been sent to the appellant by Jasawalla or by the complainant. Most of the letters attributed to the appellant bore what appeared to be his signature, and a few of those signed letters were expressly admitted by the appellant. In addition, there were a small number of unsigned letters among the material. Both Jasawalla and the complainant testified about the signatures that appeared on the other letters, asserting that they could recognize the appellant’s handwriting. The appellant’s counsel objected, arguing that neither Jasawalla nor the complainant had ever actually seen the appellant write any of the letters and therefore could not possess the intimate familiarity with his correspondence that would enable them to authenticate the signatures.

The trial judge and the judges of the High Court, however, concluded that there were enough admitted or otherwise proved letters that would allow Jasawalla and the complainant to identify the appellant’s signatures in the disputed letters. They placed particular emphasis on the substance of the various letters, considering them in the context of other letters and telegrams that were presented as replies and formed a continuous chain of correspondence. The appellant’s counsel challenged this methodology on the basis of the standard of proof required. The Court found no merit in that challenge. It held that establishing the genuineness of a document is essentially the same as establishing its authorship, and that this is proved in the same way as any other factual assertion. Evidence of authorship may be direct, such as a person who actually saw the document being written or who witnessed the signing, or it may be circumstantial, including analysis of the handwriting of the body of the document or the signature in accordance with sections 45 and 47 of the Indian Evidence Act. The Court further explained that internal evidence derived from the contents of a document can be highly valuable, especially when the document is claimed to be one link in a chain of correspondence, some links of which have already been proved to the satisfaction of the court. In such circumstances, the recipient of the document—whether it be a letter or a telegram—stands in a reasonably advantageous position to comment on the authorship. This is because the recipient may have prior knowledge of the alleged sender’s handwriting or signature, limited though that knowledge may be, and also possesses familiarity with the subject matter of the ongoing correspondence. Moreover, the Court itself may be in a position to assess whether the document represents a genuine link in the chain and thereby determine its authorship. Consequently, the Court could not accept the appellant’s counsel’s objection that the lower courts’ approach to concluding the letters were genuine was legally untenable.

In this case, the Court observed that the method employed by the lower courts to determine that the letters were genuine could be subject to serious legal challenge. However, the Court held that any question concerning the sufficiency of the material upon which the lower courts based their conclusion regarding the authenticity of the letters could not be entertained at this stage. A few of the letters alleged to have been received from the appellant did not bear his signature; the lower courts had found these letters to be proved by the circumstantial evidence that had been pointed out, and the Court expressed no objection to that finding.

The next point of contention concerned the letters said to have been sent by Jasawalla and the complainant to the appellant. Both Jasawalla and the complainant had produced copies of the original letters. It had been contended that these copies were inadmissible, but the Court rejected that contention as untenable. The appellant could not be expected to produce the originals, especially if he disputed their existence, and there was additionally testimony from his former employee, Sequeria, that the originals had been received but subsequently taken away by the appellant’s son. The principal issue with these letters was that there was no proof they had actually been received by the appellant in Karachi. The argument advanced by the appellant was that evidence offered by either Jasawalla or the complainant showing that the originals were written and posted did not establish receipt, and that mere posting did not create a presumption of receipt unless it was also shown that the original had not been returned from the Dead Letter Office. The appellant relied on illustration (b) to section 16 of the Indian Evidence Act, 1872, to argue that a combination of the two facts was required to raise such a presumption. The Court clarified that the illustration merely indicated that each fact was relevant, not that both were necessary to create a presumption, and that the section and its illustrations dealt with relevance, not presumptions.

Turning to the objections regarding the telegrams, the main difficulty raised was the proof of the genuineness of the various telegrams allegedly received from the appellant. The Court noted that because the case primarily concerned the nature and content of the representations allegedly made by the accused to the complainant or to Jasawalla, the relevant matters were the telegraphic messages delivered to those parties, provided that the authorship of the original messages could be established. These telegrams had been proved by producing the messages actually handed over to the complainant or to Jasawalla, as well as the transit copies of the originals recorded at the receiving end. The Court recognized that the appellant’s objection was that there was no proof he was the author of these messages, but it reiterated that under section 88 of the Evidence Act there is a presumption only that the message received by the addressee corresponds with the message transmitted at the office of origin, not a presumption concerning who transmitted it. Nevertheless, the Court held that proof of authorship need not be direct and could be inferred circumstantially, similar to the reasoning applied to the letters. The Court concluded that the remaining objections to the telegrams had already been fully addressed by the learned Judge of the High Court and were largely unsubstantial.

The Court observed that the originals of the telegrams had been recorded at the receiving end, and that the principal difficulty raised by the appellant concerned the absence of proof that the appellant himself had authored those messages. The Court noted that under section 88 of the Indian Evidence Act a presumption exists only that the message received by the addressee corresponds with the message that was delivered for transmission at the office of origin; the statute does not create any presumption as to the identity of the person who caused the message to be transmitted. Nevertheless, the Court explained that proof of authorship need not be direct; it may be established on a circumstantial basis, as was earlier explained in relation to letters. In the present case, the content of the messages, considered together with the whole chain of correspondence, could plausibly indicate who had originated the telegrams. The appellant also raised a number of other, comparatively minor objections concerning the proof of the telegrams. Those objections had been fully addressed by one of the learned Judges of the High Court, and most of them were found to be unsubstantial. Accordingly, the Court expressed general agreement with the High Court’s conclusions on those points. Regarding both the letters and the telegrams, counsel for the appellant argued extensively about the manner in which the documents had been admitted into evidence during the examination of witnesses. The Court found that the record did not contain any clear indication that such an objection had been seriously taken at the time, and therefore the Court could not entertain a fresh challenge on that ground. The Court further observed that the principal objection, whether the contents of the disputed documents could be used as proof, was affected by the fact that many of the documents remained unadmitted, while only a few had been conclusively admitted or proven. The Court noted that the appellate court could have been confronted with the question of whether internal evidence drawn from a large body of correspondence, a substantial portion of which was disputed, was sufficient to reach a satisfactory conclusion about the genuineness of the documents. That issue was not before the Court at this stage. Even if the Court had wished to consider it, it would have been practically impossible because most of the documents relied upon by the trial court and the appellate court had not been reproduced in the record. The Court therefore concluded that there was no reason to doubt that the learned Judges, having examined the matter in great detail, had arrived at a satisfactory finding. Those Judges had not relied solely on the internal evidence of the documents; they had also taken into account the oral testimony of three principal witnesses – the complainant, Jasawalla, and Sequeria – each of whose evidence supported the others, and together formed a consistent basis for establishing the authorship of the disputed documents.

In this case, the Court considered the fourth argument presented by the appellant’s counsel, which challenged the validity of the conviction under section 420 read with section 34 of the Indian Penal Code. The counsel contended that the individuals designated as accused 2, 3 and 4 in the complaint were located in Bombay, whereas the appellant was in Karachi, and therefore, a joint offence could not be established within the meaning of section 34. The counsel relied on the dictum in Shreekantiah Ramayya Munipalli v. The State of Bombay (1), asserting that the accused must participate in the actual commission of the act, not merely in its planning. The Court found that neither that case nor the cited dictum was applicable to the present facts. Moreover, the Court observed that the factual findings demonstrated that the offence had been committed by the appellant himself. Although the trial magistrate and one of the learned High Court judges had referred to the conviction as being under section 420/34, the underlying findings supported a conviction solely under section 420. Such a conviction remained valid despite the charge being framed as section 420 read with section 34, unless prejudice could be shown, a principle affirmed in Willie (William) Slaney v. The State of Madhya Pradesh (1). Consequently, the Court held that the appellant’s contentions numbered three and four lacked any substantive merit.

The second contention arose from a different set of circumstances. The appellant had previously been on trial before the Sessions Judge in Bombay for offences of forgery and fraud and was released on bail for that proceeding. While on bail, the appellant fled first to Pakistan and subsequently to England. The Indian authorities then applied to the Metropolitan Magistrate at Bow Street, invoking the Fugitive Offenders Act, to secure the appellant’s arrest and surrender. The magistrate granted the application, after which the appellant sought relief in the Queen’s Bench Division of the High Court in England by filing a writ of habeas corpus, challenging the legality of his arrest and surrender to Indian authorities. The judgment of Lord Goddard C. J. in the matter, reported as Re. Government of India and Mubarak Ali Ahmed (2), dismissed the application and upheld the order for surrender made under the Fugitive Offenders Act. Upon his return to Bombay, the appellant was taken into custody in connection with the resumed Sessions trial. The complainant subsequently learned of his arrival and filed a complaint on 30 June 1952. The Presidency Magistrate entered the complaint in his register, issued a warrant against the appellant, and subsequently brought him before the court for trial, presumably after the pending Sessions trial had concluded.

In this case the objection before the Court was that the appellant had been surrendered by the order of the Metropolitan Magistrate solely for the purpose of facing the sessions trial that was already pending against him in Bombay, and therefore he could not subsequently be tried for any other offence alleged to have been committed by him in India. The learned counsel for the appellant relied upon section three, subsection two, of the English Extradition Act of 1870 (33 & 34 Vict. c. 52), which provides that a fugitive who has been surrendered under that statute in respect of a particular offence should not be tried for any other offence until he has either been restored to the requesting jurisdiction or has been afforded an opportunity to return. The Court observed, however, that this provision was inapplicable because the appellant had been surrendered under the Fugitive Offenders Act, a statute which contains no comparable clause. Section eight of the Fugitive Offenders Act merely permits the optional repatriation of a surrendered person at his request if he is acquitted of the offence for which he was surrendered. Counsel argued that the principle underlying section three, subsection two, of the English Extradition Act was a general one and should be applied by analogy to a surrender made under the Fugitive Offenders Act. The Court could not accept that argument. Moreover, even if the appellant’s arrest in India for the purpose of trial on a fresh charge were deemed unjustified, the Court noted that such a circumstance would not by itself invalidate the conviction that resulted from his trial, a position that is now well-settled by a series of decisions, including Parbhu v. Emperor, Lumbhardar Zutshi v. The King and H. N. Rishbud v. The State of Delhi. Accordingly, that contention was overruled, leaving only the first contention raised by the appellant’s counsel for further consideration.

The first contention was premised on the assumption that the appellant was a Pakistani national. The Court began by questioning whether the appellant could, at the time of the alleged offence, actually be regarded as a citizen of Pakistan. The complainant’s statement described the appellant as an Indian citizen, originating from Hyderabad (Deccan), who had absconded to Pakistan and thereafter to England. In a long written statement submitted after the prosecution closed its case, the appellant himself set out the details of his personal history beginning in 1928. He recounted that he had obtained a graduate degree with honours from Punjab University in 1928, entered the Indian Finance Service and served in various capacities at different locations, and eventually resigned from Government service in 1943 to join an industrial enterprise in Hyderabad (Deccan). He further explained that he carried on extensive business activities there and entered into a substantial contract with the Government of Hyderabad, which was later revived by the Military Government after the Police Action. Concluding his narrative, the appellant asserted that the contract was satisfactorily fulfilled before his migration to Pakistan in July 1950. This categorical statement indicated that he remained in India until at least July 1950. The Court therefore observed that, on a prima facie basis, the appellant was a citizen of India at the commencement of the Constitution, as per Article five read with Article seven, and continued to be so at the time of the offence in July-August 1951, unless he could demonstrate, under Article nine, that he had voluntarily acquired foreign citizenship. Mere migration to Pakistan was not sufficient to show a loss of Indian citizenship, and the burden of proof lay on the appellant to establish such a change.

The appellant explained that after leaving government service in 1943 he joined an industrial enterprise in Hyderabad (Deccan). He said that he carried on extensive commercial activities there and that he entered into a large contract with the Government of Hyderabad, a contract that the Military Government revived following the Police Action. He concluded his account of his earlier career by stating that the contract had been fully performed before he migrated to Pakistan in July 1950. This declaration, made by the appellant himself, indicates that he remained in India up to July 1950. Consequently, on the face of it, Article 5 read with Article 7 of the Constitution would deem him an Indian citizen on the date the Constitution came into force and would continue to regard him as such at the time of the alleged offence in July-August 1951, unless he could demonstrate, under Article 9, that he voluntarily acquired the citizenship of a foreign state. Mere migration to Pakistan does not, by itself, establish the loss of Indian citizenship. The lower courts had not examined this point, apparently because it was not raised at the earliest stages of the proceedings. As a fundamental objection to jurisdiction, it should have been raised by the appellant at trial, at the very least soon after the charge was framed. The Supreme Court might therefore have refused to entertain the jurisdictional question in the present form. However, the High Court had entertained the issue on the assumption that the appellant was a Pakistani national, and it had decided the matter on that basis. To overturn the objection now without finally determining whether the appellant retained Indian citizenship—perhaps after remanding for further findings—would be unfair and unsatisfactory. Accordingly, the Court chose to allow the arguments to proceed on the same assumption adopted by the High Court. The High Court had dismissed the appellant’s objection to the court’s jurisdiction, relying on Section 179 of the Code of Criminal Procedure, which provides that when a person is accused of an offence because of an act and any resulting consequence, the offence may be investigated or tried by a court within the local limits where the act was done or the consequence occurred. Applying this provision, the High Court observed that even if the alleged misrepresentations or deception were made by the appellant while he was in Pakistan, the consequential act—the delivery of the property—took place in Bombay. On that basis, the High Court held that the appellant could be tried in Bombay for the delivery of the money that occurred there.

In this case the Court considered whether the appellant could be tried in Bombay for the delivery of money that occurred in that city. The appellant’s counsel argued that section 179 of the Code of Criminal Procedure presupposes that the person charged is already substantively liable under the Indian Penal Code, and that the provision merely designates the place of trial without creating liability. He maintained that because the appellant, a Pakistani national, was never physically present in Bombay at any stage of the alleged offence, the Indian Penal Code could not apply to him, and consequently he could not be triable under section 179. The counsel further pointed to section 5(1) of the Code of Criminal Procedure, which states that all offences under the Indian Penal Code must be investigated, inquired into, tried and otherwise dealt with according to the provisions that follow, implying that the provisions concerning the place of trial assume the existence of substantive liability under the Penal Code or another law. He contended that attributing substantive liability to the appellant would amount to giving the Indian Penal Code an extraterritorial operation, which, in his view, could arise only from specific legislative enactments and not from any general provision of the Penal Code. To address this contention the Court turned to the factual matrix. The offence of cheating under section 420, as defined in section 415, requires two essential ingredients: first, a dishonest or fraudulent misrepresentation, and second, the inducement of the victim to deliver property. The evidence showed that, while residing in Karachi, the appellant sent letters, telegrams and made telephone calls—sometimes directly to the complainant and sometimes through an agent named Jasawalla—asserting that he possessed ready stock of rice, had reserved shipping space and would ship the rice promptly upon receipt of money. These representations were directed to the complainant in Bombay, despite being made from Karachi. The Court observed that a statement spoken at the Karachi end of a telephone call becomes a representation to the complainant only when it is perceived by the complainant in Bombay, a point that was not contested. The mode of communication, whether by telegrams or letters, was deemed immaterial to the analysis.

It was also established that the appellant sent letters either directly to the complainant or to one of his agents, such as Jasawalla, and that, as a result of these communications, the complainant handed over approximately Rs 5 ½ lakhs on three separate occasions. The Court found that the statements made by the appellant were not supported by any factual basis, that the appellant was aware of this lack of foundation, and that he made the statements with an initial dishonest purpose. On the basis of these facts, the Court concluded that every element required to constitute the offence of cheating under section 420 read with section 415 was satisfied in Bombay. Accordingly, the whole offence, including the essential act of fraud, was committed in Bombay and not merely the consequential part of handing over money, which itself is only one component of the offence. The appellant’s counsel did not seriously dispute this finding, but he contended that, because the appellant was not physically present in India at the relevant time, he should fall outside the reach of the Indian Penal Code. The Court observed that, on its face, the Indian Penal Code is intended to address all unlawful acts and omissions defined as offences that are committed within India and to provide punishment for any person who is found guilty of such acts. This intention is reflected in the preamble and in section 2 of the Code. Consequently, the question to be answered was whether any principle exists that would exclude a foreign national who was not physically present at the time of the commission of the offence from the class of persons punishable under the Code. The Court held that, in the absence of any recognised legal principle or any language in the Code requiring such an exclusion, the answer must be negative. The argument advanced by the appellant’s counsel—that holding a foreigner guilty of an offence committed in India, despite his physical absence, would give the Code an extraterritorial operation and therefore should be avoided, relying on the Privy Council decision in Macleod v. Attorney-General for New South Wales—was deemed a misconception. The Court explained that attaching criminal liability to a foreigner for acts or omissions that are legally attributable to him, even though he is physically abroad at the time, does not extend the Code’s territorial reach. Rather, the liability is grounded in the fact that the offence itself has its locality within India, and it is for that offence that the person is held accountable and punished under Indian law.

The Court observed that, provided the accused could be brought to India for trial, the law could assert jurisdiction over him even if he was not physically present in the country at the time of the alleged offence. It noted that this principle formed part of the ordinary jurisdiction of a municipal court and was well recognised in the common law of England, as reflected in Halsbury’s Laws of England (Third Edition) volume ten, page three hundred eighteen. In that work, paragraph five eighty explains that, at common law, criminal jurisdiction was limited to crimes committed within the territorial limits of England, while paragraph five eighty-one set out the rule for acts committed outside English territory. The text stated that for purposes of criminal jurisdiction an act could be treated as having been done within English territory even though the person who performed the act was abroad; for example, a person who, while overseas, used an innocent agent or the postal service to commit a crime in England was deemed to have committed the act in England. Moreover, if a person outside England initiated an offence whose essential elements later took effect in England, that person could be subject to English jurisdiction. The Court further explained that even when the initiator of such an offence was a foreign national, he could be tried if he subsequently entered England. Accordingly, the Court held that exercising criminal jurisdiction in these circumstances under the common law amounted to the exercise of municipal jurisdiction, and it emphasized that in the present case all the ingredients of the offence occurred within the municipal territory, making the exercise of jurisdiction even more appropriate.

The Court then turned to certain well-recognised concepts of international law that were relevant to the situation. It cited Wheaton’s Elements of International Law (Fourth Edition), page one hundred eighty-three, where the author discussed criminal jurisdiction and noted that, by the common law of England, which had been adopted in the United States, criminal offences were considered entirely local and could be adjudicated only by the courts of the country where the offence was committed. On the preceding page, Wheaton stated that the judicial power of every independent State extended, subject to earlier qualifications, to the punishment of all offences against the municipal laws of that State, whatever the nationality of the offender, when the offence occurred within the State’s territory. The Court also referred to Hackworth’s Digest of International Law (1941 edition), volume eleven, page one hundred eighty-eight, which recorded the opinions of notable American judges. In particular, it quoted Holmes J., who observed that acts done outside a jurisdiction but intended to produce harmful effects within it justified the State in punishing the cause of the harm as if the perpetrator had been present at the place of effect, provided the State could obtain him within its power. Finally, the Court cited Hyde’s International Law (Second Edition), volume one, page seven hundred ninety-eight, which reproduced a passage from the judgment of the Permanent Court of International Justice dated September seventh, 1927, in the S S Lotus case. That passage explained that many countries, even those whose criminal statutes were strictly territorial, interpreted criminal law to treat offences whose authors were in another State at the moment of commission as having been committed in the national territory whenever a constituent element of the offence, especially its effects, occurred there.

The Court observed that many legal systems whose criminal statutes are expressed in strictly territorial terms still interpret those statutes to treat an act as having been committed within the national territory even when the perpetrator was physically present in another State at the time of the act, provided that a key element of the offence – especially its harmful effects – occurred within the territory. The quotation appears in Openheim’s International Law, eighth edition, volume one, page three-three-two, in a footnote. While the Court was mindful of the relevance of international law provisions, it emphasized that the matter before it concerned solely municipal law, not any rule of international law. Nevertheless, as previously noted, the principles cited in the publications of the Permanent Court of International Justice, series A, numbers ten and twenty-three, are essentially derived from the recognition of similar rules in the domestic legislation of various nations and form part of the broader jurisprudence on criminal responsibility under municipal law. Some of the cited dicta refer to offences committed abroad by foreigners that are nevertheless treated as offences committed within the State by specific statutory provisions. The emerging principle is clear: once an offence is treated as having been committed within the State, the fact that the offender was physically outside the State at the time does not bar the exercise of municipal jurisdiction under that State’s criminal law. This underscores the rule that criminal jurisdiction depends on the location of the offence rather than on the nationality of the alleged offender, except in limited categories such as ambassadors or princes.

Counsel for the appellant relied heavily on passages from the judgment of Cockburn C.J. in the well-known case The Queen v. Keyn (Franconia’s case). Fourteen judges participated in that litigation, which was argued on two occasions, and eight judges, including Cockburn C.J., formed the majority. Numerous passages in Cockburn C.J.’s opinion appear, at first glance, capable of supporting the appellant’s argument. In particular, a passage on page two-three-five states: “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.” However, the learned Chief Justice acknowledged on page two-three-seven that certain American decisions reached the opposite conclusion. The central issue in that case concerned whether the sea extending three miles from the shore formed part of British territory or whether, beyond that limit, only a narrowly defined extraterritorial British jurisdiction existed, a jurisdiction that did not encompass the specific criminal jurisdiction under consideration. The Court noted that this question was addressed in the cited authorities, including the decision reported in the 1876 volume of the Exchequer Reports, second series, page sixty-three.

In response to the earlier judgment, Parliament enacted the Territorial Waters Jurisdiction Act, 1878 (41 & 42 Vict., c. 73). That statute effectively overturned the majority opinion and the view expressed by the learned Chief Justice on the question of jurisdiction over offences committed on the high seas. For the present analysis, the Court focused on the principle articulated in the minority judgment of Amphlett, J. A., at page 118, which states that “it is the locality of the offence that determines the jurisdiction.” The statement emphasizes that jurisdiction is fixed by where the offence occurs, not by the nationality of the offender. The Court then identified the remaining issue for examination: whether any wording in the Indian Penal Code, considered as a whole, requires the construction that its provisions do not extend to a foreign national who commits an offence in India while not being physically present in the country at the time. The Court clarified that it was not concerned with any specific provision that expressly makes the presence of the perpetrator a condition of the offence. Naturally, where the statutory text demands physical presence, a foreigner who is not present cannot be guilty. The only portions of the Code that speak to the general scheme are sections 2, 3 and 4, which read 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; (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 address offences occurring beyond the territorial limits of India, while section 2, by contrast, governs offences committed within India. Accordingly, the Court concluded that section 2 is the appropriate provision for determining liability and punishment for offences committed inside India. Section 2 unequivocally declares that every person, without exception, shall be liable to punishment under the Code for any act or omission that contravenes the Code’s provisions and for which he is guilty within India. This provision embodies the general principle that criminal jurisdiction depends on the location of the offence rather than on the offender’s nationality.

In this case, the Court observed that the expression “every person” used in section 2 of the Code, when compared with the expression “any person” employed in sections 3 and 4 (2), signified that any individual who could be held responsible for an offence committed within India was, without exception, liable to punishment under the Code. The appellant’s counsel argued that the words “within India” at the end of section 2 ought to be read together with the opening phrase “every person.” The Court rejected this submission as implausible and untenable. It held that the ordinary meaning of “every person” was inclusive of all persons, irrespective of nationality, allegiance, rank, status, caste, colour or creed. Consequently, the provision was to be understood as covering every individual without limitation, except for those who might be specifically exempt from criminal prosecution or punishment by virtue of the Constitution—such as the protection granted under article 361 (2)—or by any statutory provision or a well-recognised principle of international law, for example, foreign sovereigns, ambassadors or diplomatic agents, as accepted in municipal law.

The Court noted that the appellant’s counsel had drawn attention to several sections of the Penal Code, namely sections 108A, 177, 203, 212, 216, 216A and 236, and argued that wherever the legislature intended to refer to conduct occurring outside India, it had done so expressly. Therefore, the counsel suggested, it could be inferred that the Code would only apply to a person physically present outside India at the time of the offence if the statute had specifically provided for such a situation. The Court could not accept this line of reasoning. It explained that those cited sections dealt with particular difficulties arising when a related offence was committed in India while the principal offence had been committed abroad, such as cases involving abetment, false information or sheltering within India for offences committed elsewhere. Those provisions were intended to fill gaps where liability for the related offence was uncertain because the principal offence was not punishable in India.

In contrast, the Court pointed out that section 3 of the Code itself made clear that a foreign national who committed an offence within India was guilty and punishable irrespective of his physical presence in India at the time. The provision contained the legal fiction “as if such act had been committed within India,” which applied to the nature of the act, not to the offender’s bodily presence. Accordingly, the Court concluded that the language of section 2 did not support the appellant’s contention and that, on a plain reading, the Penal Code applied to a foreigner who committed an offence within India even though he was physically abroad at the time of the act.

In the present dispute, the Court examined whether the expression “of which he shall be guilty within India” used in section 2 of the Indian Penal Code necessarily required that a foreign offender be physically present in the country at the time the offence was committed. The parties argued over the exact meaning of that clause, but the Court indicated that it was not essential to reach a definitive doctrinal conclusion on the phrase. Nonetheless, the Court observed that the wording of the clause could not sustain the position advanced by the appellant’s counsel. Consequently, the Court was satisfied that a straightforward reading of section 2 demonstrates that the Code is applicable to a foreign national who commits an act that would constitute an offence if performed in India, even though the individual was not corporeally situated within Indian territory when the act occurred.

The appellant further contended that municipal courts could exercise jurisdiction over a foreigner only on the basis of a theory of temporary allegiance, which purportedly arose when the foreigner entered the State and thereby accepted its legal protection and obligations. Several decisions were cited in support of this theory, but the Court found it unnecessary to engage with the specific dicta of those cases. Upon reviewing the authorities, the Court concluded that the notion of temporary or permanent allegiance has never been established as a limiting principle for criminal jurisdiction, which is fundamentally concerned with the security of the State and the safety of its citizens. Early High Court judgments from India, such as Reg. v. Elmstone, Reg. v. Pirtai, Mussummat Kishen Kour v. The Crown, and Gokaldas Amarsee v. Emperor, were noted, as was Emperor v. Chhotalal Babar. The Court declined to discuss these cases at length, although some of them appeared to support the appellant’s view that criminal jurisdiction could not extend to foreigners outside Indian territory. Those decisions, however, were rendered during a period when the legislative competence of the Indian Parliament was perceived as limited, influenced by earlier authorities such as Macleod’s case despite the contrary judgment in Queen v. Burah. The Court held that such historic concepts have lost their force after India became a Dominion under the Indian Independence Act of 1947 and later a sovereign republic under the present Constitution. The Court therefore referred to later authorities that illustrate the shift in legal doctrine, including Croft v. Dunphy and the opinion of Spens, C.J., in Governor-General v. Raleigh (1870) 7 Bom. H.C.R. 89. In the latter case, Spens, C.J. observed a substantial evolution in the doctrine of extraterritorial legislation following the earlier Macleod decision, indicating that contemporary jurisprudence no longer adheres to the restrictive views of the past.

The Court observed that the judgment had noted the criticism of Macleod’s case (2) in certain Canadian decisions and also the criticism directed at the Privy Council itself. Counsel for the parties drew the Court’s attention to a passage from the report of the Indian Law Commissioners that is reproduced on page 274 of the eighteenth edition of Ratanlal’s Law of Crimes. The Court considered that, although the quoted passage may have historical interest, it cannot serve as a proper authority for interpreting the provision in question. The Court explained that interpretation must be founded on the ordinary meaning of the words, derived according to the standard rules of construction, and must be consistent with the generally accepted principles governing the exercise of criminal jurisdiction. The Court further held that it is neither necessary nor permissible to read the Indian Penal Code today in accordance with the concepts of criminal jurisdiction that prevailed at the time of its enactment, because those concepts have changed markedly over the almost one-hundred-year period that has elapsed. Accordingly, the Code may be interpreted in light of contemporary needs wherever such an approach is permissible, unless the text of the Code or of a particular section expressly indicates a contrary intention.

After a careful consideration of the issues presented, the Court stated its clear view that, even assuming the appellant had ceased to be an Indian citizen and had become a Pakistani national at the time the alleged offence was committed, the appellant must nevertheless be found guilty and liable to punishment under the Indian Penal Code despite not being physically present in India at the relevant time. The matter of sentence was then addressed. The Court recalled that, at the trial stage, the substantive imprisonment awarded was two years for the first count and twenty-two months for the second count, the sentences being ordered to run concurrently, as indicated by the authorities cited in (1) A.I.R. (1944) F.C. 51, 60, 61 and (2) (1891) A.C. 455. Consequently, the aggregate period of imprisonment imposed on the appellant amounted to three years and ten months. The Court found no error in the trial Court’s exercise of discretion in fixing that sentence and therefore dismissed the appeal. The appeal was consequently dismissed.