Extraterritorial Applicability of Indian Penal Code

Extraterritorial Applicability of Indian Penal Code written by Prapti Kothari student of Institute of Law, Nirma university

MOBARIK ALI AHMED V. THE STATE OF BOMBAY, AIR 1957 SC 857

MATERIAL FACTS

Mr. Louis Anton Cornea, the complainant, was a businessman residing in Goa and also the director of a trading firm namely, Colonial Limitada, which was doing business in import and export. Due to the scarcity of rice at the time in Goa, the complainant was anxious about the import of rice and thus, got in contact with Mr. Jassawla, a commission agent under Universal Supply Corporation. Mr. Mobarik Ali Ahmed, the appellant, was a businessman residing and trading in Karachi, Pakistan under name of Atlas Industrial and Trading Corporation and Ifthiar Ahmed & Co. The appellant was contacted by Mr. Jasawalla. Series of telegrams, phone calls, and letters were exchanged between Mr. Jasawalla and the complainant, and Mr. Jasawalla and the appellant after a contract was formed for the sale and purchase of 1200 tons (later 2000 tons) of rice at the price of 51 pounds per ton.
25% of the payment was paid in advance to Mr. Jasawalla and the rice was to be shipped from Karachi to Goa. After the quantity was raised to 2000 tons, 50% of the payment was paid in advance after the appellant had given assurance of complete arrangements. After the delivery was delayed, the complainant requested for his money to be returned but the appellant denied getting any payments.

ISSUES

• Whether the appellant, a Pakistani national, doing business in Karachi who wasn’t present in India pre or post the occurrence of offense can be put on trial by an Indian court or not?
• Whether the exchanged telegrams and letters be admissible in court or not?
• Whether the appellant is convicted for the offenses under Section 3(2) of the English Extradition Act, 1870 or not?
• Whether the conviction of the appellant is justifiable under section 420 read with section 34 of the Indian Penal Code, 1860 or not?

JUDGEMENT

Taking into consideration the arguments, the evidence, and facts presented before the court, the appeal was dismissed and the decision was taken to convict the appellant Mobarik Ali Ahmed under section 420, read along with section 34 of the IPC.

ARGUMENTS PRESENTED BY THE APPELLANT

The learned counsel by raising contention denied the exchange of letters or telegrams between the complainant and the appellant and argued that the telegrams and letters which were being relied upon are inadmissible in the court and that there exists no intimate acquaintance who can validate the signatures.
By relying on the case of Shreekantiah Munipalli v. The State of Bombay, which held that “the acts done by several persons in furtherance of common intention”, the learned counsel argued that as per section 34 of the Indian Penal Code, the appellant wasn’t even present in Bombay but was in Karachi for the commencement of the offense. Thus the appellant did not join the actual doing of the act and merely planning is not sufficient to hold someone liable and should not be tried under section 179 of the Code of Criminal Procedure because he has not committed any offense under the Indian Penal Code.
The appellant had surrendered himself for the offense of forgery and under Section 3(2) of the English Extradition Act, 1870, is protected and cannot be tried for other crimes without giving the opportunity to return.

ARGUMENTS PRESENTED BY THE RESPONDENT

Under section 415 of the Indian Penal Code, cheating is defined with its essentials as fraudulent misrepresentation to a person and inducing that person thereby to deliver property. And it is evident from the facts that all the elements of cheating are present and thus the appellant had intended to cheat. The appellant had submitted a statement stating that he had continued to live in India till July 1950 and established himself as a citizen of India. Under article 5 of the Indian, Constitution read with article 7, the appellant was a citizen of India at the time of commencement and commission of the offense. The claim of the appellant being a foreigner cannot help true under article 9, till he shows that he voluntarily acquired citizenship of a foreign country, and in the present scenario; he didn’t have any proof of acquiring citizenship of Pakistan.

ANALYSIS

The court held that the telegrams and the letters were authentic and thus were admissible in the court of law and thus were considered as important and direct evidence, article 45 and 47 of the Indian Evidence Act were referred. Testimony of 3 witnesses was taken into consideration, witnesses being the complainant, Mr. Jasawalla, the mediator, and Sequeria who was an ex-employee of the appellant.
Relying on H. N. Rishbud v. The State of Delhi, it was observable that section 3(2) of the English Extradition Act, 1870 had no effect as the appellant had surrendered himself. The court emphasized that under the section of the Indian Penal Code, any foreigner who commits any offense in India can be punished without any limitations because the exercise of criminal jurisdiction is dependent on the offense itself and not the nationality of the said offender. The court also said that the case of Shreekantiah Munipalli v. The State of Bombay, on which the council of the appellant was relying, affected the present case, judging by the facts.

CONCLUSION

Although if the crime took place in Bombay while the appellant was not evident to be present in India throughout the execution of the crime, his conviction was justifiable under the Indian Penal Code, as all the elements which constitute the offense of cheating under Section 420 of the Indian Penal Code were carried out in Bombay.