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IN THE HIGH COURT OF BOMBAY
IN THE HIGH COURT OF BOMBAY
Patel D.V. and Gokhale H.R.
Appellants: Abdul Kadar Saleh Mohomed and Ors.
Vs.
Respondent: State
Crl. Revn. Appn. No. 297 of 1963
Decided On: 21.08.1963
CRIMINAL LAW - CONSPIRACY - JURISDICTION - SECTION 120B OF THE INDIAN PENAL CODE - INTERPRETATION - CONTINUOUS OFFENCE - CONSPIRACY TO COMMIT COGNIZABLE OFFENCES - SANCTION UNDER SECTION 196A(2) OF THE CRIMINAL PROCEDURE CODE - NECESSITY - VAGUENESS OF CHARGE - MISJOINDER OF CHARGES AND ACCUSED - EVIDENCE - SUFFICIENCY FOR COMMITTAL.
Fact of the Case:
Seven accused, nationals of South Africa, were charged with various offences, including forgery, using forged documents as genuine, cheating, and conspiracy to commit these offences. The accused arrived in India on different dates and allegedly committed the offences in Bombay and other places in and outside India. The accused challenged the jurisdiction of the Indian courts to try them for the offences, particularly the charge of conspiracy, arguing that the conspiracy was formed in South Africa and that they were not present in India at the time of the commission of the offences.
Finding of the Court:
The court held that the accused could be tried in India for the offence of conspiracy under Section 120B of the Indian Penal Code. The court interpreted Section 120B as a continuous offence, and held that whoever is a party to a conspiracy during its continuance is liable to be punished under the section. The court also held that the object of the conspiracy was to commit cognizable offences, and therefore, sanction under Section 196A(2) of the Criminal Procedure Code was not necessary.
Issues: 1. Whether the Indian courts have jurisdiction to try the accused for the offence of conspiracy under Section 120B of the Indian Penal Code, considering that the conspiracy was formed in South Africa and the accused were not present in India at the time of the commission of the offences? 2. Whether sanction under Section 196A(2) of the Criminal Procedure Code is necessary for the prosecution of the accused for the offence of conspiracy, considering that the object of the conspiracy was to commit cognizable offences? 3. Whether the charge of conspiracy is vague for not specifying the exact place where the conspiracy was entered into and the documents in respect of which forgeries and cheating were committed? 4. Whether there is misjoinder of charges and accused? 5. Whether there is sufficient evidence against accused Nos. 5 and 6 for their committal?
Ratio Decidendi: 1. Section 120B of the Indian Penal Code is a continuous offence, and whoever is a party to a conspiracy during its continuance is liable to be punished under the section. The emphasis is on the words "are parties". It is not that the agreement as such is punishable, but being party to a conspiracy is punishable. The section is worded in the present tense and, therefore, cannot be exclusively read to mean whoever has been or had been party to a criminal conspiracy shall be punished, as if the offence was committed. In other words, it is intended to be treated as a continuous offence and whoever is a party to Conspiracy during the period for which he is charged is liable under Section i20B. 2. Sanction under Section 196A(2) of the Criminal Procedure Code is not necessary for the prosecution of the accused for the offence of conspiracy, considering that the object of the conspiracy was to commit cognizable offences. The section applies only to cases where the object of the conspiracy is to commit non-cognizable offences. 3. The charge of conspiracy is not vague for not specifying the exact place where the conspiracy was entered into and the documents in respect of which forgeries and cheating were committed. Direct evidence of conspiracy is almost an impossibility. It is in a rare case that there is direct evidence of the place where conspiracy is entered into. In almost every case, such conspiracies are to be inferred from the subsequent conduct o,f the parties having regard to all the circumstances of the case. Under these circumstances, from the very nature of things it is almost impossible to give the particulars, as the accused would now have the prosecution to give them. 4. There is no misjoinder of charges and accused. The charges are properly framed and the accused are properly joined. 5. There is sufficient evidence against accused Nos. 5 and 6 for their committal. The circumstances positively suggest their association in a great measure with the other accused for the purpose of the conspiracy.
Final Decision: The court dismissed the revision application and confirmed the order of committal. The court directed the Additional Sessions Judge to proceed with the trial of the case as early as possible.
1. This revision application is made on behalf of the seven accused, who have been committed to stand their trial before the Court of Session by the learned Presidency Magistrate, 16th Court, Esplanade, Bombay, for various charges, viz, forgery, using forged documents as genuine, cheating, and the conspiracy to commit these offences. When the case reached before the learned Addl. Sessions Judge, arguments were advanced before him that in respect of charge No. 1 in particular and in respect of other charges of forgery which may have occurred outside Indian territories the Addl. Sessions Judge would have no jurisdiction to try the case. The learned Addl. Sessions Judge rejected these contentions, and against that decision the present revision application is made to this court.
2. The accused are nationals of South Africa and they arrived on various dates in India. Accused No. 1 first came to India on the 31st of March 1961. He left within a short time thereafter and returned on 23rd of April 1961. Accused No. 5 came on 16th of June 1961. Accused Nos. 3 and 6 came on 23rd June 1961. Accused No. 2 came on 14th July 1961 and accused No. 4 came on the 11th of August 1961.
3. It appears that accused No. 1 when he landed in India made certiain declarations before the customs Officer of the foreign currency which he brought into India and later on he utilised this declaration after making alterations for the purpose of getting foreign currency from Indian dealers by cashing forged drafts of the standard Bank of South Africa. As many as 84 charges were framed against these accused by the learned Presidency Magistrate, which have been recast by the learned Addl. Sessions Judge and reduced in number to 64. During his Stay, accused No. 1 sold some drafts to one John Mascarenhas on the 21st of June 1961, of the total value of Rs. 36,900. Another set of drafts he sold to one Goverdhandas Ratansi Bajaria on the 22nd of July 1961, of the total value of Rs 80,000/-. Within a very short time after these sales, it was discovered that these drafts were forged drafts and that these two persons were cheated by the accused. Inquiries were, therefore, set afoot and all the accused were arrested one after the other as a result of the coca-plaint made by these two persons.
4. The first charge is one of conspiracy and it is directed against all the seven accused and is as follows:
"First: That between the 28th day of April 1960 and the llth day of August 1961, at Bombay and/or at other places in and outside India, you Abdul Kadar Saleh Mohamed, accused No. 1, Abdul Gafar Khan, accused No. 2, Peerbhai Chagan, accused No. 3, Abdul Gafar Osman, accused No. 4, Osman Mahomed, accused No. 5, Habib Mohomed, accused No. 6, and Omar Mohamed, accused No. 7, along with (1) Shrimati Rabia alias Bakri alias Nargis, alias Sherbanoo alias Shrimati Kada wife of Abdul Kadar Saleh Mohomed, (2) Dawood Saleh Mohomed., (3) Ailibhai Manjee and (4) Ramji Keshavji, all four of them now absconding, and along with other persons unknown, were parties to a criminal conspiracy tp cheat persons by dishonestly inducing them to deliver money in Indian currency by using forged documents, viz. British Sterling drafts purporting to have been issued by the Standard Bank of South Africa, Pretoria and Johansberg Branches and thereafter to remit the money so obtained by cheating to South Africa after getting the same converted into foreign currency, knowing or haying reason to believe at the time you used the said documents to be forged documents, and also by forging documents and possessing them intending to use them fraudulently for the purpose of carrying out the object of the said conspiracy, and by abetting the offences of forgery and of using as genuine forged documents for the purpose of cheating, and that in pursuance of the said criminal conspiracy the above-mentioned offences were in fact committed and that you all thus committed an offence punishable under section 120-B read w
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