(Prayer: Petitions (disposed of on 28-2-1947) under Ss. 435 and 439 Crl. P.C., 1898 praying the High Court to revise the judgment of the Court of Session of South Malabar dated 16th April 1946 in C.A. Nos. 23 and 24 of 1946 respectively preferred against the judgments of the Court of the Additional First-Class Magistrate, Palghat, in C.C. Nos. 278 and 282 of 1945 respectively.)

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, under S. 409 of the 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 Ltd., 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 S. 188 of the Code of Criminal Procedure as amended by Act XVIII of 1923. The material portion of S. 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 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; and, where there is no Political Agent, the sanction of the Provincial Government shall be required

The words underlined were added by the Amending Act of 1923 and the purpose of that amendment will be set forth presently. The learned Sessions Judge negative this contention relying upon S. 181(2) of the Code of Criminal Procedure 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 Orimanayur 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 S. 181(2), S. 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 S. 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, North Arcot v. Ramaswami Asari (38 Mad. 779 [LQ/MadHC/1914/62] =1 L.W. 302), it was held by Sadasiva Aiyar 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 arrangement 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 under S. 188 of the Code of Criminal Procedure. It is clear from the report of the Select Committee which proposed the amendment to S. 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, North Arcot v. Ramaswami Asari (38 Mad. 779 [LQ/MadHC/1914/62] =1 L.W. 302), and other rulings to similar effect. The Committee said this:

Certain decisions of the Madras High Court seem to make it doubtful whether S. 188 is subject to the provisions of Ss. 179 to 184 and we think it is desirable to clear this up. We are not satisfied that this was the intention of S. 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 Agents 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 S. 188 as amended is not governed or controlled by the preceding Ss. 179 to 187 but in turn itself governs and controls the same. I shall refer to two cases. Sreeramamurti, In re (68 M.L.J. 211=41 L.W. 82), is a decision by a single Judge, Pandrang Row, J. There the accused was charged under 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 S. 179 of the Code of Criminal Procedure was applicable, the case could not be tried without a certificate of the French Political Agent as required by S. 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 S. 179 of the Code of Criminal Procedure would apply to a case of this kind, there is another provision in the Code of Criminal Procedure, viz. , S. 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 enquired into in British India.

The ruling in Fakurullakhan, In re (68 M.L.J. 415=41 L.W. 352) 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 under S. 188 of the Code of Criminal Procedure, 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 S. 188 of the Code of Criminal Procedure. In any case an argumentum an 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.