In Re: A.B. Tonse and Others

Rajagopalan, J.—The three charges against the petitioners were (1) that in the mouth of April or May 1946 they cheated Albert Correa, P.

W. 10, at Verapurzha in Travancore State, (2) that about the month of March 1946 they cheated P. W. 11, V. Hormis, at Cheranallur in Cochin

state and (3) that in about February 1946, again at Cheranallur in Cochin, they cheated P. W. 12, M. C. Simon, and that they committed offences

punishable u/s 420 read with Section 37, Penal Code, The petitioners have applied to have these charges quashed.

On the date of the offences complained of the accused were ""native Indian subjects of His Majesty within the meaning of Section 4, Clause (1),

Penal Code, as it stood on that date. The offences were alleged to have been committed in Travancore and Cochin which were beyond ""British

India"" within the meaning of Section 4(1), Penal Code. Section 188, Criminal P. C., prescribed the sanction of the political agent or of a local

Government before criminal proceedings could be validly initiated for offences committed by such persons outside British India. That sanction was

given by the Government of Madras on 25th May 1948. There was thus a valid initiation of criminal proceedings against these petitioners only on

25th May 1948.

Between the dates on which the offences were alleged to have been committed and the initiation of criminal proceedings against the petitioners

the Indian Independence Act was passed. Subsequent to that Travancore and Cochin, which had been beyond British India before the Indian

Independence Act, acceded to the Dominion of India.

The question for consideration in this petition is whether the criminal Court in South Kanara in the Dominion of India has jurisdiction to try the

petitioners for the offences they were alleged to have committed in Travancore and Cochin.

Had there bean a valid initiation of the criminal proceedings before 15th August 1947, on which date the Indian Independence Act came into

force, the case for the Crown would have been unanswerable. Where the dates on which the offences were alleged to have been committed and

the date on which criminal proceedings against them were validly initiated subsequent to 15th August 1947 and the date of accession of

Travancore and Cochin to the Dominion of India the case for the Crown would have been equally unanswerable.

Section 4(1), Penal Code, as amended by the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1918 ran :

The provisions of this Code apply also to any offence committed by (1) Any British subject of Indian domicile in any place without and beyond

the Provinces of India.

No doubt, as the learned advocate for the petitioners pointed out, on 25th May 1948, Cochin and Travancore were part of the Dominion of India,

A reference to Section 2 Clause (4), Indian independence Act, and Section 5(1)(c), Government of India Act, 1935 as adapted by the India

Provisional Constitution Order of 1947 should make that quite clear. There is really no need at this stage to consider the scope of Section 7, Indian

Independence Act, As I have already pointed out, before 25th May 1948 the Cochin and Travancore had acceded to the Dominion of India.

The learned advocate for the petitioners contended that. Section 4(1), Penal Code, was extra-territorial in its operation and could not, there,

fore, by itself confer jurisdiction on criminal Courts in the Dominion of India to try persons for offences committed in India. As ancillary to this

contention the learned advocate urged that the amendment of Section 4, Penal Code, by the Indian Independence (Adaptation of Central Acts and

Ordinances) Order, 1948, was ultra vires the Governor General and that such a change in law would also be ultra vires the Legislature of the

Dominion of India. No doubt, Section 6(2), Government of India Act, limits the powers of the Legislature of the Dominion of India to enact laws

to be in operation in the acceding states. It was not denied that Criminal Law and Criminal Procedure were not included within the scope of the

Instrument of Accession signed by the Rulers of Travancore, and Cochin.

Section 4(1), Penal Code, as amended provides a complete answer to the contentions of the learned advocate for the petitioners. To reiterate,

section 4(1) ran :

The provisions of this Code (Indian Penal Code) apply also to any offence committed by any British subject of Indian domicile in any place

without and beyond the Provinces of India.

That the petitioners are British subjects of Indian domicile was not questioned. That Travancore and Cochin are beyond the Provinces of India as

the expression ""province"" has been defined and used in the Government of India Act is not open to question. Section 5, Government of India Act

itself differentiates between the Governors'' Provinces and the Indian States acceding to the Dominion. What Section 4(1), Penal Code provides

for is the punishment of British subjects to Indian domicile resident in a Province--whether it is a Governor''s Province or a Chief Commissioner''s

Province it is immaterial --for offences committed outside the Provinces. The acceding states are certainly outside the Provinces within the meaning

of Section 4(1), Penal Code and that they are outside the Province is established by Section 5, Government of India Act, though those states have

become part of the Dominion of India.

To reiterate the learned advocate for the petitioners urged that Section 4(1), Penal Code was extra territorial in its operation. To that extent that

contention is quite correct. But what Section 4(1), Penal Code really provides for is its operation ex-the territory of the province, in this case ex-

the territory of the Province of Madras. That the Legislature of the Dominion of India is competent to legislate for such a class of offences cannot

be really open to question. It should be remembered that the persons to whom Section 4(1) is intended to apply are British subjects of Indian

domicile; and the petitioners are British subjects of Indian domicile. They are British subjects, residents of a province, for whom the Legislature of

the Dominion of India can legislate. I am unable to see any real basis in law for the contention of the learned advocate for the petitioners, that

because such persons are to be punished for acts done by them in an acceding state, Section 4(1), Penal Code should be deemed to be the law

prevailing in the acceding states. It is not as if Section 4(1), Penal Code was intended to confer jurisdiction on a criminal Court in one of the

acceding states to try British subjects of Indian domicile for offences committed by them in such an acceding state.

The real question for consideration in this petition is whether Section 4(1), Penal Code would apply when the offence was alleged to have been

committed on a date when Cochin and Travancore were not parts of British India and when the initiation of criminal proceedings against the

petitioners for those acts was on a date when Cochin and Travancore had become parts of the Dominion of India.

What constituted the offence complained of should obviously be governed by the law as it stood on the dates the offences were alleged to

have been committed. u/s 4(1), Penal Code, as it stood on the dates the offences were alleged to have been committed, such offences committed

in Cochin and Travancore were punishable u/s 4(1), Penal Code provided the requirements of Section 188, Criminal P. C., were satisfied. As has

been pointed out in In Re: Antony D''Silva and Others, , the first part of Section 188 is really the counter part of Section 4(1), Penal Code. Section

188, Criminal P. C., being procedural had to be applied as it stood on 26th May 1948; and Section 188, Criminal P. C., was amended by the

Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948, to conform to Section 4, Penal Code as it was amended by the

same order. On 25th May 1948, the Government of Madras could and did sanction the initiation of criminal proceedings against the petitioners for

offences alleged to have committed by them outside the province of Madras. Section 4(1), Penal Code and Section 188, Criminal P. C., cannot

be viewed as wholly extra-territorial in its operation. It is not extra-territorial in the sense that that would be the law applicable to the Courts in

Cochin and Travancore; but in a restricted sense the operation of Section 4(1), Penal Code and Section 188, Criminal P. C., is extra-territorial, in

that it provides for punishment of offences committed by the British subject of Indian domicile resident in a province for offences committed by him

outside that province. It is not the marginal note to Section 4(1) that really governs the scope of the operation of that section but the plain wording

of the section itself.

To sum up, the contention of the learned advocate for the petitioners, that there is no provision in the Indian Penal Code to punish any person,

though he be a subject of the Dominion of India resident in a province, for offences committed in Travancore and Cochin, which were outside

British India when the offences were alleged to have been committed, after such states had become a part of the Dominion of India, must fail. Such

offences, in my opinion, are punishable u/s 4(1), Penal Code as it stood on the date the offences were alleged to have been committed, provided

the requirements of Section 188, Criminal P. C., were satisfied. They were satisfied on 25th May 1948, and there was a valid initiation of

proceedings. The petition is dismissed.

Mr. Nambiar for the petitioner asked for a certificate to issue for leave to appeal to the Federal Court u/s 205(1), Government of India Act,

1935. It is no doubt true that an interpretation of the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948, amending

the provisions of Section 4, Penal Code and Section 188, Criminal P. C. and their validity in the acceding states was involved in the case before

me. But as pointed out by the learned AIR 1949 1 (Privy Council) , bars the grant of a certificate at this stage. There has been no final adjudication

of the rights of the parties, that is of the liability in criminal law of the petitioners. No doubt an important point of jurisdiction has been decided. That

by itself is not enough to justify the grant of the certificate contemplated by Section 205(1), Government of India Act, 1935. It would still be open

to the petitioners to ask for such leave should there be a final determination of their liability, for example, by a conviction in the ultimate Court. At

present there can be no issue of the certificate prayed for.