Mobarik Ali Ahmed vs. The State of Bombay

In the Supreme Court of India
1957 AIR 857, 1958 SCR 328
Appellants
Mobarik Ali Ahmed
Respondents
The State of Bombay
Date of Judgement
6 September 1957
Bench
Justice Jagannadhadas, B.; Justice Imam, Syed Jaffer; Justice Menon, P. Govinda

Introduction:

The Definition of Intra-territorial offenses embodied in section 2 of The Indian Penal Code 1860 of Chapter 1 which highlights the offenses committed within Indian territory. In this leading judgment, the dispute regarding the Intra-territorial was alleged, where the definition of section 2 of the Indian Penal Code laid a foundation in explicating the case. 

Section 2 of IPC, 1860, says that all persons whether Indian or Foreigner shall be held liable for any offense or whoever commits such offense which is contrary to the Indian Penal Code on the Indian soil shall be punishable under the provisions laid in the Indian Penal Code.

For eg., if a German or a French commits counterfeiting the coins of the Indian Currency under the impression that such counterfeiting is not a crime in his country, therefore he pleads in his defense of such offense not being a crime is not admissible under Indian Criminal Laws. In an interesting case decided by the Calcutta High Court, Crown v. Esop,1the accused was prosecuted for an unnatural offense committee on board an East India ship, lying in St. Katherine’s Docks. It was argued that he was native of Baghdad where his actions would not have resulted in an offense, however, the Court held that this is not a legal defense in support of his offense.

Facts: 

The complainant-Respondent of the case is a proprietor at Export-Import Trader Co. named Colonial Limitada, due to scarcity of rice in Goa region he got in touch with the agent named Jasawalla, who was the export-import trader, for the importation of rice, later the complainant was introduced through this Agent with the trader of Karachi, Pakistan who is an accused-appellant, was a sole exporter of rice. Through various letters and telegraph messages, they both agreed upon the contract of trading of rice from Karachi Pakistan to Goa, India. There was an agreement between them of purchasing 1200 tons of rice at a price of 51 pounds per ton in exchange for 25% of advance payment to be paid to the appellant-accused. Series of letters and telegrams were exchanged between the appellant and respondent for trading and payment purpose but unfortunately the appellant miss-represented and played a foul play to induce the complainant to pay the higher amount, while the consignment was still undue to complete the task. Under such an impression the complainant-Respondent paid the total sum of Rs  81000, Rs 2,30,000 and Rs 2,36,900 respectively but still, the shipping consignment was not initialized by the appellant, the appellant on various occasion gave remarks about the disclosure of Letter of credit, Non-acceptance of money by a guaranteeing Bank Of Pakistan, etc. The Complainant got frightened with the unscrupulous behavior of the Appellant where the complainant showed concerns and stated in one of the letters, for initializing shipping consignment as early as possible and on failure to comply, to refund the paid advancement. The complainant waited for months to receive the consignment but failed to receive from the Appellant neither he was repaid the advance which resulted in the termination of the contract between them.

Procedural History:    

• The trial against the appellant-accused was pending before the session judge of Bombay where the appellant was charged with cheating and forgery, he was released on bail with that Trial case and fled to Pakistan and from there to England. 
• The Indian authorities made an application  before Metropolitan Magistrate, Bow Street under the Fugitive Offenders Act to arrest the Appellant which was granted by the Metropolitan Magistrate 
• The appellant applied for Writ of Habeas Corpus before Queen’s Bench Division of the High Court in England challenging the validity of his arrest and surrender to the Indian authorities. The application was dismissed by the division bench and the order for surrender made under the Fugitive Offenders Act.
• The appellant was brought back was in jail custody in the connection of the pending session trial which he was previously prosecuted for cheating and forgery 
• The complainant got to know about the availability of the appellant-accused where the fresh complaint was filed and the Presidency Magistrate took the cognizance and issued a warrant against  the appellant,(after the pending session trail was completed) 
• The Additional Chief Presidency Magistrate, 3rd Court, Esplanade, Bombay in the Case No. 31/W of 1953. convicted under section 420 of IPC and 34 of IPC even the appellant applied in the Bombay High Court in Criminal Appeal No. 1596 of 1953 where again he was convicted.
• The appellant lastly prays through special leave before the Supreme Court of India in  Criminal Appeal No. 200 of 1956.

Constitution and Statutory Provisions:

• Section 420 of The Indian Penal Code, 1860
  • Section 34 of The Indian Penal Code, 1860
  • Section 2 of The Indian Penal Code, 1860

Issues:

1. Whether a foreign nationalist can be held liable/punishable for any offenses as if he committed in India under the Indian Penal Code?
2. If a foreign nationalist is brought up through Extradition Procedures for any pending trial and correspondingly can he be tried with another alleged offense?
   
3. Relevant validity of Letters exchanged as a way of communication for undertaking business transactions.
4. Does section 420 and 34 of IPC hold a reliable charge against the appellant where there involves 3 more Co-accused/s who were present at the place of offense in this alleged case?

Arguments:

The learned counsel on behalf of the appellant contended that firstly the appellant-accused named MubarakAli Ahmed in the above case is a Pakistani nationalist, resides in Karachi and therefore never stepped into the Indian soil during the period of commission and hence committed no offense. Secondly, the L.C argued and relied upon Section 3(2) of the English Extradition Act,1870  which speaks that a fugitive criminal who has been surrendered under this act in respect of particular offense should not be tried for the corresponding offense until and unless he has been given an opportunity of returning. Thirdly the evidence/s such as telegrams and letters which were produced in the trial court/s holds irrelevant purported facts. And lastly, the charge of section 420 which represents cheating and 34 common intention does not fit to be framed against the appellant as there were three accused/s jointly alleged in this case and during the time of the offense the appellant was in Karachi Pakistan not present in the Indian soil i.e in Bombay and relied upon the aphorism mentioned in Shreekanitah Ramayya Munipalli v. The State of Bombay.2

Judgment:

Ratio Decidendi:

• The apex on the first issue observed that the L.C of appellant merely urged about the absence of the appellant when the offense was commenced and to be barred under the provisions of IPC if he is absent corporeally but to this, the court pronounced that corporeal presence doesn’t vitiate or bar him from a trial of the penal proceedings. As mentioned in Section 2 of The Indian Penal Code he whosoever whether Indian or Foreigner commits any act which is contrary to the provisions of Penal code shall be held liable, Section 3 and 4 of Indian Penal Code which portrays about the Extraterritorial jurisdiction and Extension respectively comes in purview of this case.
• For the second issue to be demonstrated the apex court found that the appellant was surrendered under the Fugitive Offenders Act which contains no analogous provisions and justifies that cognizance of an offense shall be initiated with the fresh trials, cited with series of cases Prabhu v. Emperor,3 Lumbhardar Zutshi v. The King, 4  H.N Rishbud v. The State of Delhi .5
• For the third issue regarding the validity of evidence so produced, saw into two parameters i.e Letters and Telegrams:   a) Letters and Telegrams received by the complainant party or the agent: In this first instance, the letters which were transmitted by the appellant is being affixed with a signature of the appellant himself which signifies the authenticity of the evidence. There is no denial of such fact or evidence which can be termed as a piece of good evidence or direct evidence as embodied in section 45 and 47 of the Indian Evidence Act 

b) Letters and Telegrams received by the Appellant from Complainant or the agent: The court observed the letters were in the original format which was delivered by Complainant or the agent. The genuineness and the correctness of the letters were proved and hold the authentic grip

Similarly, the transmission of Telegrams between Appellant and Complainant contains the authorship of both the parties. The court was in minimal interest to consider the presumption validity as engraved in section 88 of The Indian Evidence Act.

• On the fourth issue, the apex court opined that the L.C of appellant cited aphorism in his argument which the court finds unfit with the present case, its a crystal clear that facts have been proved and found that the main commission of an offense was initialized by the appellant and such conviction under section 420/34 of IPC corroborate the actual findings and can be lined up in the case of Willie (William) Slaney v. The State of Madhya Pradesh.6

Obiter Dictum: 

To give the effect to Intra and Extraterritorial jurisdiction which is engraved from Section 2-4 of the Indian penal Code of chapter 1  the apex court took references from the international version that ordinary jurisdiction of a municipal Court is well recognized in the common law of England as appears from Halsbury’s Laws of England (Third Edition) Vol. 10, p. 318. Paragraph 580 therein shows that the exercise of criminal jurisdiction at common law is limited to crimes committed within the territorial limits of England and para. 581 states the jurisdiction in respect of acts outside English territory as follows:

” For the purposes of criminal jurisdiction, an act may be regarded as done within English territory, although the person who did the act may be outside the territory; for instance, a person who, being abroad procures an innocent agent or uses the post office to commit a crime in England is deemed to commit an act in England. If a person, being outside England, initiates an offense, part of the essential elements of which take effect in England, he is amenable to English jurisdiction. It appears that even though the person who has initiated such an offense is a foreigner, he can be tried if he subsequently comes to England. In Hyde’s International Law (Second Edition),7the following quotation from the judgment of the Permanent Court of International Justice it has been stated as ” It is certain that the courts of many countries, even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offenses, the authors of which at the moment of the commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offense, and more especially its effects, have taken place there. “

Conclusion: 

Looking to the veracity, the apex court dismissed the criminal appeal of the appellant and convicted the appellant for imprisonment up to three years and ten months which is bound to be in the interest of justice and law, the apex emphasizing the Intra territorial jurisdiction and offenses the court made crystal clear that though the offender may be a foreign nationalist he would not be entitled to get the immunity of acquittal, he shall be liable of every act and offenses as per The Indian Penal Code. 

“The views of the authors are personal“

Reference

1 Crown v. Esop,1836 7 C & P.456.

2 Shreekanitah Ramayya Munipalli v. The State Of Bombay [1955] 1 S.C.R. 177, 1188.

3 Prabhu v. Emperor A.I.R. (1944) P.C. 73.

4 Lumbhardar Zutshi v. The King A.I.R. (1950) P.C. 26.

5 H.N Rishbud v. The State of Delhi(1955) 1 S.C R. 1150, 1 163.

6 Willie (William) Slaney v. The State of Madhya Pradesh [1955] 2 S.C.R. 1140.

7 Hyde’s International Law (Second Edition), Vol. 1, at p. 798.-