In Re: A.B. Tonse and Others

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

P.W. 10, at Varapurzha 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, Indian 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,

Indian 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), Indian Penal Code. Section 188 of the Criminal Procedure Code 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 Kariara 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 been 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. Were 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) of the Indian Penal Code as amended by the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948, 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 of the Indian Independence Act and Section 5(1)(c) of the 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 of the Indian Independence Act. As I have already pointed out, before 25th May, 1948, Cochin and Travancore had acceded to the

Dominion of India.

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

therefore, 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 of the Indian 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) of the 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), Indian 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 Province 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 of the Government of

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

Code, provides for is the punishment of British subjects of 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), Indian Penal Code and that they are outside the Province is established by Section 5 of the 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),. Indian Penal Code, was extra-territorial in its operation. To that

extent that contention is quite correct. But what Section 4(1), Indian 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), Indian Penal Code should

be deemed to be the law prevailing in the acceding States. It is not as if Section 4(1), Indian 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) Indian Penal Code would apply when the offence was alleged to

have been committed on a date when Cochin and Travancore were not part 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 part 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), Indian 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), Indian Penal Code, provided the requirements of Section 188, Criminal Procedure

Code, were satisfied. As has been pointed out in In Re: Antony D''Silva and Others, , the first part of Section 188 is really the counterpart of

Section 4(1), Indian Penal Code. Section 188, Criminal Procedure Code, being procedural, had to be applied as it stood on 25th May, 1948 :

and Section 188, Criminal Procedure Code, was amended by the Indian Independence (Adaptation of Central Acts and Ordinances) Order,

1948 to conform to Section 4, Indian 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 been committed by them outside the

Province of Madras. Section 4(1), Indian Penal Code, and Section 188, Criminal Procedure Code cannot be viewed as wholly extra-territorial in

its operation. It is not extraterritorial 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), Indian Penal Code and Section 188, Criminal Procedure Code 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), Indian Penal Code, as it stood on the date the offences were alleged to have been

committed provided the requirements of Section 188, Criminal Procedure Code, 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) of the 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, Indian Penal Code and Section 188 of the Code of Criminal Procedure and their validity in the Acceding

States was involved in the case before me. But as pointed out by the learned Public Prosecutor, Kuppuswami v. King (1948) 1 M.L.J. 103 :

1947 F.L.J. 100, 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) of the 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.