In Re: M.L. Verghese

Yahya Ali, J.—These are two revision petitions arising out of two different cases in which the petitioner, who was the accused in both the

cases, was convicted by the Additional First Class Magistrate, Palghat, u/s 409, Indian Penal Code. The convictions, on appeal, were confirmed

by the Sessions Judge of South Malabar.

The petitioner was running a bank called the Malabar Central Bank with its head office at Chowghat and a branch office at Orumanayur, both

places being situated in British India. The charge against him in both the cases was that he received gold ornaments from different persons by way

of pledge and after doing so, sub-pledged them for higher amounts to other banks. According to the prosecution, these amounted to acts of

criminal breach of trust as in sub-pledging the jewels, and that for higher amounts, the petitioner must be deemed to have acted with dishonest

intention. This view prevailed in both the Courts below. At the appellate stage, an objection was raised to the convictions on the ground that since

the sub-pledging had been done by the petitioner with the Savings and Investments Corporation, Limited, at Trichur, which is situated in the State

of Cochin, the British Indian Courts had no jurisdiction to try the accused. This objection is based upon the provisions of Section 188 of the

Criminal Procedure Code as amended by Act XVIII of 1923. The material portion of Section 188 runs thus :

...When any British subject commits an offence in the territories of any native Prince or Chief in India...he may be dealt with in respect of such

offence as if it had been committed at any place within British India at which he may be found : Provided that notwithstanding anything in any of the

preceding sections of this Chapter no charge as to any such offence shall be inquired into in British India unless the Political Agent, if there one, for

the territory in which the offence is alleged to have been committed, certifies that, in his opinion, the charge ought to be inquired into in British India

; and, where there is no Political Agent, the sanction of the Provincial Government shall be required....

The words italicized were added by the Amending Act of 1923 and the purpose of that amendment will be set forth presently. The learned

Sessions Judge negatived this contention relying upon Section 181(2) of the Criminal Procedure Code which is to the following effect:

The offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a court within the local limits of whose

jurisdiction any part of the property which is the subject of the offence was received or retained by the accused person, or the offence was

committed.

Referring to this sub-section, the learned Sessions Judge held that the articles which are the subject of the offence were received by the appellant

either at Orumanayur or at Chowghat and that consequently the trial Court had jurisdiction. He was of the opinion that in view of the express

provision contained in Section 181(2), Section 188 had no application and he pointed out that a contrary view would lead to the result that Courts

in British India would be absolutely powerless if the offender disposes of property taken from British India in an adjoining Native State. On a

consideration of the judicial precedents as they stood before the amendment introduced in the proviso to Section 188 of the Code and the scope

of the amendment which was enacted expressly for the purpose of overcoming the effect of those decisions and the decisions that have been given

after the amendment, I am of opinion that the objection as to want of jurisdiction in the trial Court to try the accused in this matter must be upheld. I

would refer only to one of the decisions prior to the amendment. In the Assistant Sessions Judge, The Assistant Sessions Judge of N. Arcot Vs.

Ramaswami Asari, it was held by Sadasiva Ayyar and Spencer, JJ., in a case where a person A entrusted three jewels to the accused at Vellore

for sale and the accused pledged two of them in Bangalore and misappropriated the third at Madras contrary to the arrangment that he should

return the jewels or their price to A at Vellore, that the British Indian Court at Vellore had jurisdiction to try the accused for breach of trust or

dishonest misappropriation without a certificate u/s 188, Criminal Procedure Code. It is clear from the report of the Select Committee which

proposed the amendment to Section 188 that the non obstante clause was inserted in the proviso to that section expressly for the purpose of

getting over the effect of the ruling in the Assistant Sessions judge, The Assistant Sessions Judge of N. Arcot Vs. Ramaswami Asari, and other

rulings to similar effect. The Committee said thus:--

Certain decisions of the Madras High Court seem to make it doubtful whether Section 188 is subject to the provisions of Sections 179 to 184 and

we think it is desirable to clear this up. We are not satisfied that this was the intention of Section 188, and in our opinion it is safer, when a man is

tried in British India in respect of an offence committed in a Native State, to require the Political Agent''s Certificate in every case. The amendment

which we propose will make this clear.

After this amendment was effected, we have had a series of decisions of this Court which have held that Section 188 as amended is not

governed or controlled by the preceding Sections 179 to 187 but in turn itself governs and controls the same. I shall refer to two cases.

Sreeramamurthy, In re (1934) 68 M.L.J. 211 is a decision by a single Judge, Pandrang Row, J. There the accused was charged u/s 290 of the

Indian Penal Code for having committed a public nuisance by arranging a marriage procession with music and by letting off fire-works thereby

disturbing the sleep of the people in the vicinity of Frenchpeta, a part of French territory. An objection was raised that the British Indian Court had

no jurisdiction to try an offence which was committed in Frenchpeta. It was held that even if Section 179, Criminal Procedure Code, was

applicable, the case could not be tried without a certificate of the French Political Agent as required by Section 188 of the Code. The learned

Judge observed :

The fact that some of the persons who were annoyed by the music and fire-works were living in British territory would not give jurisdiction to the

Magistrate. Even otherwise, and assuming that Section 179, Criminal Procedure Code, would apply to a case of this kind, there is another

provision in the Criminal Procedure Code, viz., Section 188 which provides that notwithstanding anything in the preceding sections of Chapter XV,

no charge in respect of any offence committed by an Indian subject of the Crown in any place without or beyond the limits of British India shall be

inquired into in British India unless the Political Agent if there is one for the territory in which the offence is alleged to have been committed certifies

that in his opinion the charge ought to be inquired into in British India....

The ruling in Kakrullahan, T. Kakrullakhan and Others, was given by a Bench consisting of Curgenven and King, JJ. There it was specifically laid

down that a British Indian Court has no jurisdiction u/s 188, Criminal Procedure Code, as amended in 1923, to try an offence committed wholly or

partly in a Native State, without the certificate of the political agent. The fact that part of the consequences have ensued within its jurisdiction is of

no avail. That was a case of commitment and it was held that a commitment made without such certificate was illegal and must be quashed. The

consideration urged by the learned Sessions Judge as to the possible result of taking such a view of the law in the matter of encouraging people

who have committed such offences to dispose of their property in an adjoining Native State is without much force as in a case of this kind

presumably there would be little difficulty in obtaining a certificate from the authority prescribed in the proviso to Section 188, Criminal Procedure

Code. In any case an argumentum ab inconvenient is of no avail when the provisions of law are sufficiently explicit and imperative.

The petitions are allowed and the convictions of the petitioner in both the cases and the sentences passed on him are set aside.