Citation Codes

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citation codes

Case Number

Full Bench Reference No. 1 of 1959 and Crl. Revision Case No. 1587 of 1958

Attorney(S)

Dalip Kumar Dutt
J.M. Banerjee and R. Chakravart

Judges

Guha Ray, JJ.
Das Gupta, C.J
Bachawat

Acts

provisions in section 29 of the Central Excises and Salt Act (I of 1944), section 5
provisions of sections 239(d) and Sec. 235(1) Criminal Procedure Code
section 288 of the Indian Merchant Shipping Act.
Court.13. Sub-sec. (2) of that section
Arms Act. Sec. 185 (1)

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Smart Summary

Comprehensive Summary of the Provided Opinion

Factual and Procedural Background

This reference to the Full Bench was made after a Division Bench (Guha Ray, J. and N.K. Sen, J.) disagreed with an earlier Division Bench decision in Bisseswar…Accused v. The King-Emperor (reported at 28 C.W.N. 975) on whether a court that has jurisdiction to try a conspiracy may also try, in the same trial, specific offences committed in pursuance of that conspiracy but outside the court's territorial jurisdiction.

The immediate proceeding arose on an application under Section 439 Cr.P.C. made by one Jiban Banerjee. Jiban and 23 others were committed to the Sessions Court, 24-Parganas, by the Police Magistrate, Sealdah, to stand trial on charges under Sections 489A, 489B, 489C and 489D read with Section 120B IPC. Against Jiban a specific charge under Section 489D IPC was alleged to have been committed at Murigram, Howrah — which the petitioner asserted lay beyond the territorial jurisdiction of the Police Magistrate's Court and of the Sessions Court.

The petitioner sought exclusion/quashing of the specific Section 489D charge on territorial-jurisdiction grounds. The Sessions Court had, in the interim, tendered pardon under Section 338 Cr.P.C. to Ramani Mohan Das (one of the 24 accused) and to Dilip Kumar Roy Choudhury (another of the 24 accused). The petitioner contended that the pardon to Ramani was illegal because the Sessions Court allegedly lacked jurisdiction to try the Section 489D offence committed outside the Alipore Court's territorial limits; a similar contention was made about the pardon to Dilip Kumar Roy Choudhury.

A Division Bench issued a Rule calling on the District Magistrate and the two persons who had been tendered pardon to show cause why (a) the Section 489D charge against Jiban should not be quashed and (b) the orders tendering pardon to Dilip and Ramani should not be set aside. At the Rule hearing the petitioner conceded that the Sessions Court had jurisdiction to try the conspiracy charge but maintained that, on authority of Bisseswar's case, the Sessions Court had no jurisdiction to try the specific offence under Section 489D allegedly committed outside its territorial jurisdiction.

The referring Judges took a contrary preliminary view — that Sections 239(d) and 235(1) Cr.P.C. could reasonably be read as partial exceptions to Section 177 Cr.P.C., thereby permitting trial of specific offences committed outside the territorial jurisdiction so long as the court had lawfully taken cognizance of the conspiracy — and therefore referred two specific questions to the Full Bench.

Legal Issues Presented

Whether Sections 235(1) and 239(d) Cr.P.C. are to be read partly as exceptions to the general rule laid down in Section 177 Cr.P.C. so as to permit a judge who legally takes cognizance of an offence of conspiracy to try, at the same trial, specific offences alleged to have been committed outside that judge's territorial jurisdiction.
Whether the decision in Bisseswar's case was rightly decided.

Arguments of the Parties

Petitioner's Arguments

The petitioner (Jiban Banerjee) conceded that the Sessions Court had jurisdiction to try the offence of conspiracy.
He argued that the specific charge under Section 489D IPC should be excluded/quashed because the Police Magistrate and the Sessions Court had no jurisdiction to inquire into or try that specific offence, the alleged commission of which (on the prosecution case) was outside their territorial jurisdiction (Murigram, Howrah).
He relied on the authority of Bisseswar's case to support the proposition that a court competent to try conspiracy cannot in the same trial try specific offences committed outside its territorial limits.
It was also contended that the tender of pardon to Ramani Mohan Das (and assertedly to Dilip Kumar Roy Choudhury) was illegal or ineffective insofar as it purported to cover the specific offences (such as the Section 489D offence) lying outside the territorial jurisdiction of the Sessions Court.

The opinion does not set out detailed, adversarial submissions by the respondents/prosecution in the record text provided; the central contest recorded is the petitioner's jurisdictional challenge and reliance on precedent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bisseswar…Accused v. The King-Emperor (28 C.W.N. 975)	Held that a Magistrate (or court) who has jurisdiction to try a conspiracy cannot, merely because the conspiracy was entered into within its jurisdiction, try the accused in the same trial for specific offences committed outside its territorial jurisdiction; joint-trial provisions do not by themselves confer territorial jurisdiction.	The Full Bench agreed that Bisseswar's case was correctly decided and relied on it as affirming that Sections 235 and 239 do not confer jurisdiction to try offences outside a court's territorial limits. Question 2 was answered "Yes" (i.e., Bisseswar was rightly decided).
Sachidananda v. Sowmja Gopala, A.I.R. 1929 Mad. 839	Considered whether jurisdiction is to be "imported" into Section 239; the Madras court inclined to the view that jurisdiction is the foundation of a charge and must be present for joint-trial provisions to apply.	The Full Bench treated this decision as supportive of the interpretation that Section 239 is to be read subject to jurisdictional requirements and that a Magistrate lacking territorial jurisdiction cannot try offences outside its limits merely because joint-trial provisions would otherwise permit a single trial.
In re: Dani, A.I.R. 1936 Mad. 317	Held that a lower court cannot be clothed with jurisdiction to try a conspiracy charge merely because the conspiracy and other acts form part of the same transaction; jurisdiction only exists for acts within the court's territorial limits.	The Full Bench cited this as consonant authority that joint-trial provisions (e.g., Section 235) do not extend territorial jurisdiction to try offences committed outside the court's area.

Court's Reasoning and Analysis

The Court proceeded by closely examining the general and special provisions dealing with territorial jurisdiction in Chapter XV of the Cr.P.C., starting from Section 177 Cr.P.C. which states the general rule: "Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed."

The Court reviewed Sections 178–185 and 188 (and other statutory provisions cited) which expressly grant or modify jurisdiction in specific circumstances, and it observed that none of these provisions contain any express grant that offences committed in pursuance of a conspiracy may be tried by a court having jurisdiction only over the conspiracy.

The Court then examined the joint-trial provisions, namely Section 235(1) ("If in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial, for, every such offence") and Section 239(d) (permitting persons accused of different offences committed in the course of the same transaction to be charged and tried together). The Court emphasized the use of the word "may" (enabling) rather than "shall" (compelling).

Key points of the Court's interpretative reasoning:

Sections 235 and 239 are enabling provisions intended to facilitate joint trials where jurisdiction otherwise exists; they are exceptions to Section 233 (the general rule that every offence shall be tried separately) and were not drafted as independent grants of territorial jurisdiction.
Had the legislature intended the joint-trial provisions to override territorial-jurisdiction rules, it could and would have used clear and mandatory language. The absence of such language persuades against reading Sections 235 and 239 as conferring jurisdiction by implication.
The importance of jurisdiction in criminal procedure means that an exception to territorial limits should be expressed "directly and precisely" rather than being inferred by implication from permissive joint-trial language.
The Court noted Section 526 Cr.P.C. as an example where the legislature used clear words to permit the High Court to order trials in courts not empowered under Sections 177–184, illustrating that the legislature knows how to expressly legislate exceptions when intended.
The Court considered legislative history: in the 1955 revision of the Cr.P.C., the legislature retained the language of Sections 235 and 239 despite existing judicial interpretations (including Bisseswar and relevant Madras decisions). The Court took this legislative acquiescence as a strong indication that the prior judicial construction (that joint-trial provisions do not confer territorial jurisdiction) was accepted by the legislature.
Authoritative decisions from other High Courts (Madras) were reviewed and found to be consistent with Bisseswar; no contrary decision was found.

On these bases the Court concluded that Sections 235(1) and 239(d) do not expressly or by necessary implication confer upon a court that has jurisdiction over a conspiracy the jurisdiction to try other offences committed in pursuance of that conspiracy outside its territorial limits. The Court therefore endorsed the principle in Bisseswar's case.

The Court also considered and disposed of suggested remedies or procedural alternatives: Section 185 Cr.P.C. does not empower a High Court to confer jurisdiction that a court does not otherwise possess; Section 526 Cr.P.C. could in suitable cases be used to order trial by another court that is otherwise competent.

Holding and Implications

The Full Bench answered the referred questions as follows:

Q.1. No.

Q.2. Yes.

The core holding is that Sections 235(1) and 239(d) Cr.P.C. are not to be read as exceptions to the general territorial-jurisdiction rule in Section 177 Cr.P.C.; consequently, a court that has taken cognizance of a conspiracy does not, by virtue only of those joint-trial provisions, acquire jurisdiction to try specific offences committed outside its local limits.

Immediate, case-specific consequences applied to the petitions before the Court (direct effects on the parties):

The Court set aside the proceedings of inquiry into the Section 489D offence alleged against Jiban Banerjee and the order committing him to the Court of Sessions for that specific offence; the committal and inquiry proceedings were invalid for lack of territorial jurisdiction.
The Court held that the orders of committal for several other persons on charges for offences committed outside the Magistrate's jurisdiction are similarly invalid in law.
As to the pardon tendered to Ramani Mohan Das, the Court held the pardon was ineffective insofar as it purported to cover the specific offence under Section 489D alleged to have been committed at Bilashi Town, Deoghar (outside the Sessions Court's jurisdiction). The tender of pardon to Ramani was set aside; acceptance of that pardon would be ineffective as regards the specific out-of-jurisdiction offence. (This does not affect the power of the court to tender a pardon in respect of the offence of conspiracy.)
With respect to Dilip Kumar Roy Choudhury, the record showed he was charged only with conspiracy (for which the Sessions Court had jurisdiction). Therefore the order of pardon tendered to him was within jurisdiction and the Rule, insofar as it concerned his pardon, was discharged (i.e., not set aside).

Broader implications: The Court recognized that the holding may produce inconvenience (multiplicity of trials) for prosecution and accused in some cases because joint-trial provisions cannot be used to circumvent territorial limits. However, the Court emphasized that it is not the role of the judiciary to read into enabling provisions a jurisdictional grant that is not reasonably supported by the language or legislative intent; any legislative remedy to remove what the Court described as a "lacuna" should come from Parliament by amending Sections 235 and 239 (or related provisions) if so desired.

No new legal principle expanding territorial jurisdiction was created. Instead, the Court affirmed existing precedent (Bisseswar) and reiterated that jurisdictional exceptions must be conferred in clear, express terms by legislation.

Document prepared from the text of the opinion provided. No information has been added beyond the contents of that opinion.

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Jiban Banerjee Accused v. The State Opposite Party.

The Judgment of the Court was as follows:

Das Gupta, C.J:— This reference has been made by a Division Bench of this Court as the learned Judges (Guha Ray, J. and N.K Sen, J.) found themselves in disagreement with the decision of another Division Bench in Bisseswar…Accused, v. The King-Emperor (1) (28 C.W.N 975) on the important question whether a Court which has jurisdiction to try an offence of conspiracy having been committed within the local limits of its jurisdiction has also jurisdiction to try offences committed in pursuance of the conspiracy, though committed outside the local limits of the Court's jurisdiction. The question arose before Guha Ray, J., and N.K Sen, J., in an application under sec. 439 of the Code of Criminal Procedure made by one Jiban Banerjee Jiban along with 23 other persons were committed to the Court of Sessions, 24-Parganas, by the Police Magistrate, Sealdah, to take their trial on charges under secs. 489 A, B, C and D. read with sec. 120B of the Indian Penal Code. Against Jiban there was a charge for a specific offence under sec. 489-D of the Indian Penal Code alleged to have been committed in pursuance of the conspiracy. There were, it may be mentioned, similar charges for specific offences, said to have been committed in pursuance of the conspiracy, against some of the other persons. Before trial commenced in the Sessions Court, an application was made by Jiban praying that the specific charge of sec. 489D of the Indian Penal Code should be excluded from the trial on the ground that the Police Magistrate had no jurisdiction to hold the enquiry under Chapter XVIII into this offence and the Sessions Judge had no jurisdiction to try this offence of sec. 489D, inasmuch as the offence was alleged to have been committed at Murigram, Howrah, which was admittedly beyond the territorial jurisdiction of the Magistrate's Court as well as of the Sessions Court.

2. It appears that Ramani Mohan Das, who was one of the 24 accused and against whom there was a further charge under sec. 489-D of the Criminal Procedure Code, was tendered pardon by the Sessions Court, under sec. 338 of the Criminal Procedure Code. It was contended by the petitioner that the tender of this pardon was illegal as the Sessions Court had no jurisdiction to try the offence under sec. 489-D as against Ramani Mohan that offence having been committed on the prosecution case beyond the jurisdiction of the Alipore Court.

3. One Dilip Kumar Roy Choudhury, one of the 24 accused, committed for trial on a charge of conspiracy, was also tendered pardon by the Sessions Court. It was contended that this tender was illegal.

4. On this application by Jiban Banerjee, a Rule was issued by the Division Bench calling upon the District Magistrate and also on Dilip Kumar Roy Choudhury and Ramani Mohan Das to show cause why the charge under sec. 489D of the Indian Penal Code against Jiban, should not be quashed and also why the order referred to in the petition, tendering pardon to the two accused persons Dilip Kumar Roy Choudhury and Ramani Mohan Das, should not be set aside.

5. At the hearing of the Rule it was conceded by the learned Advocate for the petitioner that the Sessions Court had jurisdiction to try the offence of conspiracy. On the authority of the decision in Bisseswar's case it was contended, however, that the Sessions Court had no jurisdiction to try the offence under sec. 489-D against the petitioner as it was committed, on the prosecution case, outside the local limits of the Magistrate's jurisdiction and the Sessions Court's jurisdiction. The referring Judges were of opinion that the provisions of sections 239(d) and Sec. 235(1) Criminal Procedure Code should reasonably be read as partial exceptions to the general rule laid down in sec. 177 Criminal Procedure Code, with the result that “when an offence of conspiracy has been already taken cognisance of by the Court concerned, it was entitled to try at the same trial the specific charges arising out of overt acts against individual accused persons although those overt acts or some of them may have been committed outside the local limits of that court's jurisdiction.” As this view, however, goes directly against the view taken by another Division Bench in Bisseswar…Accused, v. The King-Emperor (1) 28 C.W.N 975, they have referred the matter to the Full Bench.

6. The questions referred are in these words:

“(1) Whether secs. 235(1) and 239(d) Cr. P.C are to be read partly as exceptions to the general rule laid down in sec. 177 Cr. P.C so as to permit the trial of specific offences alleged to have been committed by one or more of the accused who are all charged with having conspired to commit such offences by a Judge who legally takes cognizance of the offence of conspiracy when the specific acts are alleged to have been committed outside the local limits of the jurisdiction of that Judge.

(2) Whether Bisseswar's case was rightly decided by this Court.”

7. It is obvious that the real question is whether provisions of secs. 235(1) and 239(d) of Criminal Procedure Code confer on a Court which has jurisdiction to try an offence of conspiracy, jurisdiction to try offences committed in pursuance of the conspiracy even though committed outside the local limits of the Court's jurisdiction. Chapter XV of the Code of Criminal Procedure deals with the question of jurisdiction of Criminal Courts in enquiries and trials. The general provision as regards jurisdiction is contained in sec. 177 which is in these words:

“Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed.”

8. Special provisions as regards jurisdiction for enquiry and trial are contained in the nine Sections 178 to 185 and sec. 188 of this Chapter. Thus sec, 178 provides that:

“Notwithstanding anything contained in sec. 177 the State Government may direct that any cases or class of cases committed for trial in any district may be tried in any sessions division.”

9. Sec. 179 provides that:

“When a person is accused of the commission of an offence by reason of anything which has been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done, or any such consequence has ensued.”

10. Sec. 180 provides that:

“When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence, if the doer were capable of committing an offence, a charge of the first-mentioned offence may be inquired into or tried by a Court within the local limits of whose jurisdiction either act was done.”

11. Sec. 181 contains special provisions as regards jurisdiction in respect of several specified offences. Sec. 182 provides that:

“When it is uncertain in which of several local areas an offence was committed, or

Where an offence is committed partly in one local area and partly in another, or where an offence is a continuing one, and continues to be committed in more local areas than one, or

where it consists of several acts done in different local areas,

it may be inquired into or tried by a Court having jurisdiction over any of such local areas.”

12. Sec. 183 contains special provisions as regards jurisdiction in respect of offences committed on a journey. Sec. 184 contains special provisions as regards jurisdiction in respect of offences against Railways, Telegraphs, the Post Office and Arms Act. Sec. 185 (1) provides that:

“Whenever a question arises as to which of two or more Courts subordinate to the same High Court ought to inquire into or try any offence, it shall be decided by that High Court.”

13. Sub-sec. (2) of that section contains special provisions as regards cases where two or more Courts not subordinate to this High Court have taken cognizance of the same offence. Sec. 188 provides that when an offence is committed by any citizen of India at any place without and beyond India or any person committed any offence in a ship or aircraft registered in India, whether he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found.

14. None of the Sections contain any provision to the effect that all offences committed in pursuance of a conspiracy may be tried by a Court which has jurisdiction to try the offence of conspiracy. Nor does any of these Sections contain a provision that all offences committed in the course of the same transaction may be tried by a Court having jurisdiction to try any of them.

15. The position, therefore, is that while it is undoubtedly correct that there are many exceptions to the general rule laid down in sec. 177 that an offence has to be inquired into or tried by a Court within the local limits of its jurisdiction it has been committed, there is no exception contained in any of the provisions in Chapter XV either generally as regards offences committed in the course of the same transaction or particularly as regards offences committed in pursuance of a conspiracy.

16. The question is whether sec. 235(1) or sec. 239 contains any such exception. The relevant portion of sec. 235 is in these words:—

“If in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.”

17. The relevant portion of sec. 239 is in these words:—

“The following persons may be charged and tried together, namely:—

(a) persons accused of the same offence committed in the course of the same transaction;

(d) persons accused of different offences committed in the course of the same transaction.”

18. It is quite clear that there is no express conferment by these provisions on a court having jurisdiction to try one of the offences which may be charged and tried together at one trial of jurisdiction to try all the offences which may be so tried.

19. Is there such conferment by necessary implication? If, even without words conferring expressly jurisdiction in a manner similar to the way in which special jurisdiction has been conferred in the secs. 178 to 184, and sec. 188 mentioned above, these secs. 235 and 239, had used instead of “may be charged with and tried at one trial”, and “may be charged and tried together”, the words “shall be charged with and tried at one trial” and the words “shall be charged and tried together”, there would have been great scope for argument that jurisdiction to try all such offences was conferred by necessary implication, as such implication was required in order to give effect to the provisions that all such offences “shall” be tried together. It would have been necessary in law that one single Court should have jurisdiction to try all of them; and so the legislature could reasonably be assumed to have intended that a Court having jurisdiction to try any of such offences, would have jurisdiction to try all the offences triable at the same trial. The legislature has however in its wisdom not used the words “shall be” but has used the words “may be”. It has been held again and again that the provisions for joint trial in secs. 235 and 239 are merely enabling sections and did not compel the same trial. There is no jurisdiction, therefore, reading “may be” in these sections as “shall be”. There is thus no basis for holding that the legislature necessarily intended that a Court having jurisdiction to try one of the offences shall have jurisdiction to try all the other offences triable at the same trial. There will be many cases where these enabling provisions for joint trial will be effective namely, in all cases where the same Court has jurisdiction under other provisions of the law to try all the offences proposed to be tried at the same trial. It is not as if the intention of the legislature as embodied in the Section becomes frustrated unless a Court having jurisdiction to try one of the offences is assumed to have jurisdiction to try all of them.

20. It is proper to remember in this connection that sees. 235 and 239 are exceptions to the general rule laid down in sec. 233 that every offence shall be tried separately. The legislature, when laying down the general rule in sec. 233 added the words “except in the cases mentioned in secs. 234, 235, 236 and 239”. The express object of the legislature in enacting secs. 235 and 239 was therefore to provide exceptions to the general rule that every offence shall be the subject matter of a separate trial. This is an additional reason to think that if the legislature had intended the provision of joint trial in secs. 235 and 239, to operate as exceptions to the rule laid down in other parts of the Code as regards jurisdiction, that intention would have been expressed in certain terms.

21. It is necessary to remember in this connection the very great importance the law attaches to the jurisdiction of Courts. It is proper to think that such an important matter as regards providing an exception to the ordinary rule as regards jurisdiction should be dealt with by the legislature, directly and precisely and would not be effected by a “side wind”.

22. It is reasonable, on the contrary, to think that in making provisions for joint trial, the legislature took it for granted that before any offence could be tried jointly with other offenses the Court had jurisdiction to try it.

23. It is to be noticed in this connection that in sec. 526 Criminal Procedure Code, the legislature intending that the provisions as regards jurisdiction in secs. 177 to 184 should not stand in the way of an order of transfer being made by the High Court, used clear words to express that intention, viz. “may order that any offence be inquired into and tried by any Court not empowered under secs. 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence”.

24. I cannot, therefore, see any escape from the conclusion that sec. 235 or sec. 239 does not expressly or by necessary implication confer on a Court having jurisdiction to try an offence of conspiracy, jurisdiction to try all the offences committed in pursuance of the conspiracy, and that they are not exceptions to the law as regards jurisdiction, as laid down in sec. 177.

25. This was the view which found favour with this Court in Bisseswar's case (1). In that case the petitioner Bisseswar and some other persons were tried by the Alipore Police Magistrate on a charge of conspiracy to commit theft and offences punishable under secs. 411 and 414 Indian Penal Code and also charges of specific offences punishable under secs. 411 and 414 of the Indian Penal Code. The petitioner having been convicted for an offence under secs. 411 and 414 it could not be said to have been committed within the jurisdiction of the Alipore Magistrate. The Alipore Magistrate had no jurisdiction to try him for the specific offences. It was not disputed that the conspiracy itself was alleged to have been entered into within the jurisdiction of the Alipore Police Magistrate. The Alipore Police Magistrate had, therefore, jurisdiction to try the charge of conspiracy. This Court held that the contention that “if a conspiracy is entered into a District A and acts are committed in pursuance of that conspiracy in District B, the Magistrate of District A can try the offence of conspiracy but cannot try the accused in the same trial for offences committed outside his District” is correct. They observed that “unless there is something to be found in Chapter XV which would enable the Magistrate in Alipore to try the accused for offences committed outside his jurisdiction the mere fact that the offences could have been tried jointly under sec. 239, Cr. P.C if committed within his jurisdiction, will not give him jurisdiction to try them”. Holding further that there was no provision in Chapter XV which would enable the Magistrate in Alipore to try the accused for offences under secs. 411 and 414 of the Indian Penal Code outside his jurisdiction, the Court set aside the order of conviction of Bisseswar.

26. The question that was raised and decided in Bisseswar's case does not appear to have come up for consideration in any other case of this Court. The Madras High Court, however, had occasion to consider the similar questions in at least two cases. In Sachidananda v. Sowmja Gopala (2) A.I.R 1929 Mad. 839 the facts were that an offence of abetment of criminal breach of trust with which one of the accused was charged and an offence of receiving stolen property with which another accused was charged had both been committed outside the Magistrate's territorial jurisdiction though the offence of criminal breach of trust itself had been committed within his jurisdiction. It was argued on the basis of sec. 239 sub-secs. (b), (e) and (f) of the Criminal Procedure Code that as there were no controlling words in sec. 239 that it was subject to provisions as to jurisdiction, the Magistrate had jurisdiction to try all the offences. It was urged against this that jurisdiction must always be the foundation of a charge and must be imported into sec. 239. Odgers, J. was in some doubt about the matter but after referring to Bisseswar's case (1), he concluded in these words:

“Giving the best consideration I can to it and with this expression of opinion of the Calcutta High Court I am inclined to think that jurisdiction being the foundation of the charge is to be imported or understood as present in all the subsequent procedure set out in the Codes and if that is so, it clearly must govern sec. 239.”

27. In this view he affirmed the order of the Magistrate who had acquitted two accused persons in the view that he had no jurisdiction to try the offences charged against them.

28. In Re: Dani (3) A.I.R 1936 Mad. 317, the question raised was converse to the question in the present case. A criminal conspiracy was entered into in Bombay, and certain offences, in pursuance of the conspiracy were committed within the jurisdiction of a Magistrate of Pallachi. The question was, whether because the conspiracy and offences in pursuance of the conspiracy formed one transaction, the Magistrate of Pallachi had jurisdiction to try the offence of conspiracy, Anand, J. held: “The lower Court cannot be clothed with jurisdiction to try the charge of conspiracy merely because the conspiracy and different acts of cheating might form part of the same transaction and that the charges in respect of them might be tried together. It can have jurisdiction only in respect of the acts of cheating alleged to have been committed within its jurisdiction”.

29. We are not concerned in this case whether the Magistrate at Pallachi might be held to have jurisdiction to try the conspiracy charge by virtue of sec. 180 or sec. 182 of the Criminal Procedure Code. What has to be noticed is that in this case also the view was taken that the Magistrate who has jurisdiction to try some of the offences committed in the course of the same transaction does not by that alone acquire jurisdiction, because of sec. 235 Criminal Procedure Code, to try other offences committed outside the local limits of his jurisdiction.

30. There appears to be no case in any of the Courts of this country which has so far taken a view different from that taken in Bisseswar's case.

31. In this connection it is necessary to take into consideration the fact that when the legislature undertook the task of revising the Criminal Procedure Code in the year 1955, it had before it these decisions, the decision of the Calcutta High Court in Bisseswar's case and the decisions of the Madras High Court, in which the question whether provisions of secs. 235 and 239 as regards trial of several offences at the same trial or of several persons at the same trial conferred on a Magistrate having jurisdiction to try some of the offences, jurisdiction to try all the offences which under these Sections might be tried at the same trial, had been considered and an answer had been given that such jurisdiction was not conferred. It was with the knowledge of these decisions, we must presume, that the legislature decided to make no alteration in the words of sec. 235 and sec. 239. We are bound to hold, therefore, that the legislature's intention when they repeated in secs. 235 and 239 the words which had been judicially interpreted was to give effect to that interpretation. This is an additional and, in my opinion, a strong reason to think that the provisions of sec. 235 or sec. 239 do not confer on a Magistrate having jurisdiction to try some of the offences, jurisdiction to try other offences which under these sections might be tried at the same trial.

32. The correct position in law, in my opinion, is that the provisions as regards joint trial as provided in sec. 235 and sec. 239 will have application only if the Court concerned has jurisdiction under other provisions of law to try the offences sought to be tried together. Thus if under other provisions of the Criminal Procedure Code or any other law a Magistrate has jurisdiction to try offences A, B and C, these offences may be tried together if they come within the provisions of sec. 235 or sec. 239; if, on the other hand, of these offences A, B and C the Magistrate has under other provisions, jurisdiction to try offences A and B but not the offence C, only offences A and B can be tried together but not the offence C.

33. There can be no doubt that the view which has been taken in Bisseswar's case and which I have indicated above is, in my opinion, correct, may, and ordinarily will result in great inconvenience to both the prosecution and the accused.

34. That, however, can be no reason for us to put on the words of secs. 235 and 239 a meaning which cannot reasonably and on the accepted principles of interpretation be put there. There is, in my opinion, a lacuna in the provisions as regards jurisdiction and it is well worth the consideration of the legislature whether in sec. 235 and sec. 239, suitable words should be introduced to provide that a Magistrate having jurisdiction to try any of the offences which may be tried together will have jurisdiction to try all of them. It is not for us, the Court, to read such words into these Sections — that will be legislating and not interpreting.

35. The referring Judges have suggested action under sec. 185 of the Criminal Procedure Code. It appears to be clear, however, that sec. 185 does not empower the High Court to give any Court jurisdiction to try an offence which under the law it has not got.

36. Action under sec. 526 of the Criminal Procedure Code may, however, be taken in suitable cases, as that Section empowers the High Court to order “that any offence be inquired into or tried by any Court not empowered under secs. 177 to 184……”

37. For all these reasons I have come to the conclusion that the questions referred to the Full Bench should be answered thus:—

Q. 1. No.

Q. 2. Yes.

38. Under the rules of this Court, the entire revision case has been referred to the Full Bench. As I have already stated, the rule was issued to show cause why the charge under sec. 489-D of the Indian Penal Code against the petitioner should not be quashed and also whether the order referred to in the petition tendering pardon to the two accused persons Dilip Kumar Roy Choudhury and Ramani Mohan Das should not be set aside.

39. The necessary consequence of my conclusion on the question of law as mentioned above is that the Police Magistrate of Sealdah had no jurisdiction to inquire into the offence under sec. 489D alleged to have been committed by the petitioner, and the Sessions Court of Alipore had no jurisdiction to try that offence. The proceedings of inquiry into the offence in the Court of the Magistrate at Alipore, and the order committing him to the Court of Sessions should therefore be set aside.

40. It appears that several other persons have been committed to take their trial on charges of offences, committed outside the Magistrate's jurisdiction. The necessary consequence of our conclusion on the question of law is that these orders of commitment are invalid in law.

41. As regards the pardon tendered to Ramani Mohan Das, it is to be noticed that the pardon is in respect also of all the offences including the specific offence under sec. 489D, which he is alleged to have committed at Bilashi Town, Deoghar. The Sessions Court of 24 Parganas has no jurisdiction to try this specific offence, and so, the tender is ineffective as regards this offence. If Ramani Mohan Das accepts the tender of pardon made to him, that acceptance will be ineffective in law. I would, therefore, set aside the order of the Court tendering pardon to Ramani Mohan Das. This will not affect the power of the Court to tender a pardon in respect of the offence of conspiracy.

42. Pardon was also tendered to Dilip Kumar Roy Choudhury, and though this fact was not clearly mentioned in the body of the application to this Court under sec. 439 Indian Penal Code, it was mentioned in the prayer portion of the application, and a prayer that a rule be issued why this pardon should not be vacated was made. It was on the basis of this prayer that the Rule as regards the pardon to Dilip Kumar Roy Choudhury was issued. From the records I find that Dilip Kumar Roy Choudhury was charged only with the offence of conspiracy and that there was no charge against him for any specific offence. As the Sessions court had jurisdiction to try the offence of conspiracy, the order of pardon tendered to Dilip Kumar was entirely with jurisdiction.

43. I would, therefore, dispose of the Rule in the following manner:—

(1) The proceedings of inquiry into the offence under sec. 489D said to have been committed By Jiban Banerjee, and the order committing him to the Court of Sessions for trial for that offence, are set aside.

(2) The Rule in so far as it is in respect of pardon tendered to Dilip Kumar Roy Choudhury be discharged.

(3) The tender of pardon to Ramani Mohan Das be set aside.

Bachawat, J.:— I agree.

Guha Ray, J.:— Having had the privilege of going through the judgment of my Lord, the Chief Justice and having given fuller consideration to the matter in controversy in this reference, I agree that the view taken in Bisseswar's case is correct and also agree with the order made by my Lord. I should, however, like to add a few words of my own more by way of an explanation as one of the referring Judges than by way of supplementing my Lord's judgment. The reason for the reference is the inconvenience that arises both to the prosecution and to the defence from the fact that although at the conspiracy trial evidence of the various overt acts may go in the trial or trials for the various overt acts themselves, if they occur outside the territorial jurisdiction of the trying Judge, have to be taken up by one or more other Courts having territorial jurisdiction, the inevitable consequence being a multiplicity of trials. If a multiplicity of charges in one trial is an evil and should be avoided as far as practicable, a multiplicity of trials is probably a much greater evil which it is certainly desirable to avoid, of course, if the law permits it. To say this is not to say that in construing a section one should in any way be influenced by a consideration of this inconvenience, but merely to say that if on the general principles of construction, a provision can be so construed as to make it possible to avoid such inconvenience, that should be preferred. The question, therefore, is whether the law permits it and that depends on a consideration of the question whether or not secs. 235 and 239 of the Code of Criminal Procedure can be construed partially as exceptions to the general rule laid down in sec. 177 of that Code. It is true that secs. 235 and 239 of the Code are primarily exceptions to the general rule laid down in sec. 233. It is equally true that secs. 235 and 239, like secs. 234 and 236 are all enabling sections, that is, they enable the Court to depart in appropriate cases from the general rule laid down in sec. 233. The question, however, that arises in this reference is what is the precise extent of the enabling power which these sections confer on the Court. Do they enable the Court to depart from the general rule laid down in the section 233 only in case of offences within the territorial jurisdiction of the Court under any of the provisions in Part A of Chapter XV which deals with the place of enquiry or trial, or, do they enable the Court to assume jurisdiction even in the case of offences where under Part A of Chapter XV it has no territorial jurisdiction? In making the reference, we took the view that there being nothing in secs. 235 and 239 themselves to suggest that these are restricted only to cases of offences, for the trial of which the Court has territorial jurisdiction under one or the other provisions of Part A of Chapter XV, no such limitation should be read into it. What, however, we omitted to consider is that whenever there is an exception to the general rule laid down in sec. 177 Cr. P.C the exception is couched in unambiguous terms and nothing is left to inference or implication, but the construction we were putting on secs. 235 and 239 of the Code left the matter entirely to inference or implication from the absence of any expression to indicate their limited scope. This, to my mind, reinforces the first reason assigned by my Lord, the Chief Justice, for the view he has taken. This reason is that there is nothing in these sections even to suggest that where the Court is lacking in territorial jurisdiction under Part A of Chapter XV such jurisdiction was being conferred by them.

44. It is true that the exceptions to the general rule laid down in sec. 177 of the Code of Criminal Procedure are not contained only in the other sections in Part A of Chapter XV. There are exceptions to it in other parts of the Code of Criminal Procedure and there are exceptions in certain provisions of other statutes also. I mentioned in my referring judgment section 288 of the Indian Merchant Shipping Act. I have since found that there are similar provisions in section 29 of the Central Excises and Salt Act (I of 1944), section 5 of the Diplomatic and Consular Officers (Oaths and Fees) Act (XLI of 1948), section 7 of the Foreign Recruiting Act, (IV of 1874), section 66 of the Inland Steam Vessels Act (I of 1917), section 134(1) of the Railways Act (Act IX of 1890) and section 72 of the Indian Stamp Act (Act II of 1890). These sections clearly indicate that they are exceptions to the general rule laid down in sec. 177 of the Code of Criminal Procedure and they were expressed in such terms as leave no room for doubt that they are meant to be exceptions to the general rule laid down in sec. 177 of the Code of Criminal Procedure. An examination of these sections, therefore, convinces me that wherever the Legislature intended to enact an exception to this general rule it has expressed that intention in clear terms without leaving anything to be inferred or implied. In other words, jurisdiction has always been conferred in express terms, whether in the general rule in sec. 177 of the Code, or the other sections in Part A of Chapter XV or elsewhere in the Code or in other statutes. From this it follows that if the Legislature intended secs. 5, 235 and 239 to confer jurisdiction on courts which have no jurisdiction under any other provision, it would in all probability have done so in express terms and as it has not done so, one has to infer that it was not intended rather than that it was intended because of the absence of any limiting words.

45. The second reason assigned by my Lord for the view he has taken, I must confess, did not occur to us at all when we made the reference. This reason is that the Legislature in its recent extensive amendments of the Code of Criminal Procedure, did not consider it necessary to amend secs. 235 or 239 or any other section so as to confer jurisdiction in certain cases on Courts for trying offences committed outside their territorial jurisdiction. The Legislature may be presumed to have been aware of the construction that was judicially put on secs. 235 and 239 and yet if they did not introduce amendments to nullify that construetion , it follows that the Legislature accepted that construction. At page 307 of Maxwell on Interpretation of Statutes, 10th Edition, there occurs the following passage— “The long acquiescence of the Legislature in the interpretation put upon its enactment by notorious practice may, perhaps, be regarded as some sanctions and approval by it.” (James L.J, “The Anna” (1876) 1 P.D, 253). On reconsideration of the matter, therefore, I feel satisfied that the view taken in Bisweswar's case is correct and the questions before the Full Bench should be answered in the way in which my Lord has answered them and the application should be disposed of in the manner in which he has disposed of it.

46. The problem however, that more or less gave rise to the reference still remains unsolved because of the existence of a lacuna in the law, revealed by a close examination of the relevant sections, as pointed out by my Lord and it will be for the Legislature to consider how far it is desirable to have this lacuna removed by appropriate amendments of the relevant sections.

S.K.B

Jiban Banerjee Accused v. The State Opposite Party.

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Jiban Banerjee Accused v. The State Opposite Party.

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