Spencer, J.:— We think that the Assistant Sessions Judge is mistaken in supposing that the Deputy Magistrate had no jurisdiction to commit the accused for trial before him for want of a certificate under section 188, Criminal Procedure Code. The complainant is alleged to have entrusted certain jewels at Vellore to the accused, a native Indian subject of His Majesty, for sale on commission for him and the accused is alleged to have dishonestly converted the jewels concerned with the first two counts to his own use by pledging them at Bangalore City and to have dishonestly misappropriated the jewel concerned in the third count at Madras. It was apparently part of the arrangement that the accused should account for the jewels to the complainant at Vellore, or return them or their price at Vellore. His failure to account for the property was a part of the offence, acts including illegal omissions. The loss which was the consequence which ensued, occurred at Vellore and this is sufficient under section 179, Criminal Procedure Code, to give jurisdiction to the Sub-Divisional Magistrate of Tiruvannamalai to commit the case to the Sessions as directed by this Court in Subbaraya Achari v. Ramasamy Asari(1). See Queen-Empress v. O'Brien(2), and Langridge v. Atkins(3), which explains Sirdar v. Jethabhai(4).
The illustration d to this section is an instance of a criminal act done outside British India and the consequence of the offence ensuing in British Territory.
The decision of Reg. v. Adivigadu based on the Code X of 1872 and relied on by the Assistant Sessions Judge has been superseded by the amendment of section 410 of the Indian Penal Code by Act VIII of 1882. The same remark applies to Empress v. Moorga Chetty. In Imperator v. Tribhun, certain observations are made by two Judges of the Sind Judicial Commissioner's Court to the effect that section 181(2) applies only as between Courts of local jurisdiction in British India and is governed by the provisions of section 188, Criminal Procedure Code. A similar observation was made by a single Judge of this Court as regards section 180 in Sessions Judge, Tanjore v. Sundara Singh but our attention has not been drawn to any decision to the effect that section 179 must be read as subject to section 188; and the illustration to the section is against such a theory. Even as regards sections 180 and 181 the decision in Emperor v. Baldewa(5) shows that a British subject who commits a robbery in a Native State and dishonestly retains stolen property in British India can be tried in a British Court even without a certificate under section 188 and thus throws doubt on the correctness of the observations in Imperator v. Tribhun and Sessions Judge, Tanjore v. Sundara Singh. Moreover the words “or the offence was committed” in section 181(2) and the words “when a native Indian subject … commits an offence” in section 188 seem to indicate that the latter section is exclusive of the rule as to jurisdiction arising out of the receipt or retention of misappropriated property.
In Queen-Empress v. Kathaperumal(6) and Emperor v. Kali Charan(7), it does not appear that there was any retention of stolen property in British India.
In Re the Sessions Judge, Trichinopoly(8) a native Indian subject of His Majesty was charged with abetment of an offence which was committed in British India and the commitment was quashed for want of a certificate under section 188. In this case the only act for which the accused could have been tried was the act of instigation and that took place wholly outside the jurisdiction of British Courts. This decision to some extent supports the theory that section 180 is governed by section 188 as it declares that the object of the former section is to give jurisdiction to a Court when the offence is not committed within its limits but within the limits of some other British Indian Court. While doubting the correctness of this view when the words of the two sections do not contain anything directly to that effect, I prefer to base my decision upon section 179, Criminal Procedure Code.
I must therefore decline to interfere with the order of commitment in this case.
Sadasiva Ayyar, J.:— I agree entirely. The scheme of chapter 15, sub-chapter (A) in which sections 177 to 189 appear seems to me to be intended to enlarge as much as, possible the ambit of the sites in which the trial of an offence might be held and to minimize as much as possible the inconvenience which would be caused to the prosecution, by the success of a technical plea that the offence was not committed within the local limits of the jurisdiction of the trying Court. Sections 178 to 184 all confer more extended powers and larger jurisdiction to Courts than would belong to them if the ordinary rule found in section 177, (namely, that the enquiry and trial shall take place in the Court within the local limits (of whose jurisdiction the offence was committed), if that rule were carried to its strict logical conclusions. Section 188 comes in (almost at the end of the sub-chapter A) to make three further encroachments on the general rule of section 177 by enacting that (a) where the criminal is a native Indian subject of His Majesty and be commits any offence even beyond British India; (b) where the criminal is a British subject and he commits an offence in a Native State; and (c) where a servant of the King Emperor (whether a British subject or not) commits an offence in a Native State, the offender in all these three cases can be tried at any place where he is found in British India provided that the Political Agent certifies that the charge ought to be inquired into in British India or the local Government sanctions such inquiry. Surely, the proviso to section 188 (which section comes in after sections 178 to 187) could not have been intended to restrict the enlarged liberties and privileges as regards jurisdiction given to the Courts by the previous, sections. I should rather think that section 188 (which follows sections 179 to 187) was intended rather to draw into the net of the jurisdiction of the British Indian Courts cases, which notwithstanding the full use of sections 179 to 184, could not be brought within the jurisdiction of any British Indian Court than to restrict by its first proviso the extended jurisdictional privileges conferred by sections 178 to 184 on Courts which according to the ordinary rule of section 177 would not have had jurisdiction. The proviso to section 188 will come into operation only when the British Indian Court cannot get jurisdiction under sections 179 to 184 and has to depend on the first part of section 188 to get such jurisdiction. I therefore, with great respect, dissent from the dicisions in Imperator v. Tribhun and Sessions Judge, Tanjore v. Sundara Singh. As regards the decision in Re the Sessions Judge, Trichinopoly while it could be distinguished (as pointed out by my learned brother) as affecting only section 180 of the group of sections 179 to 184, I feel loath to make any such distinction as no difference in principle can be made between the extended jurisdiction conferred by section 180 and the extended jurisdiction given by the other sections.
I therefore respectfully dissent from that decision also and refuse to accept the Sessions Judge's reference.