JUDGMENT

Almond, J C - Yogindar Nath brought a complaint against Sultan Chand and Shyam Lal proprietors of printing press in Delhi in which the allegations made were roughly as follows:

The complainant was writing a pamphlet on "Air Raid Precautions" and in order to do so he got a special concession to obtain paper from Government. The paper was obtained from Delhi by the accused who were to publish the pamphlets. The publishers had been delaying matters and had used the paper for their personal use. They were therefore guilty of criminal breach of trust. It was also alleged that they had committed an offence under the Defence of India Rules. Appended to the complaint are certain subsidiary paragraphs in which it is said that a part of the manuscript was sent to the accused from Peshawar and had not been returned in spite of requests. Furthermore, some proofs of the pamphlet having been passed by the complainant were sent to the accused at Delhi, but they had not been printed or returned. Furthermore, the accused agreed to deliver some of the printed books to the complainant at Peshawar and to pay the complainant his share of royalty agreed upon after rendering an account of the sale proceeds of the book to him at Peshawar, and it was stated therefore that the Peshawar Courts had jurisdiction to hear the case.

2. On 5th October, the accused made an application to the Magistrate who was trying the case stating that the Peshawar Courts had no jurisdiction and at the end of this application they also prayed that they should be excused from personal attendance owing to the distance of Delhi from Peshawar. I am told by learned Counsel for the accused-petitioners that this application was argued before the Magistrate, who came to the conclusion that he had jurisdiction, but he made no written order on the petition. The Magistrate then proceeded to hear the complainant's evidence. He framed a charge against them for committing criminal breach of trust at Delhi and since the charge was framed two out of the three witnesses for the accused have been examined on commission at Delhi.

3. The accused then applied to the Sessions Judge for an order that the charge framed against them should be quashed in the first place because there was no prima facie case of an offence against them and in the second, place because the Peshawar Courts had no jurisdiction to hear the case. The Sessions Judge rejected this application holding that as regards the question of jurisdiction it was an irregularity which could be cured under Section 531, Criminal P.C., and that as regards the merits of the case he was not prepared to make any pronouncement at that stage.

4. The accused have now applied to this Court to quash the charge framed against them and the application has been argued solely on the question of jurisdiction. Learned' counsel for the petitioners relies upon a case of the Calcutta High Court reported in Daityari Tripathy v. Subodh Chandra . Learned Counsel for the complainant and the Crown on the other hand, rely upon two cases reported in Ram Rattan v. Emperor A.I.R. 1922 Bom. 39 and Mohru Lal v. Emperor . The question turns upon the interpretation of Section 179, Criminal P.C. The Calcutta High Court made the following remarks:

Section 179 applies only to those offences which by their very definition consist of an act and its consequence, and not therefore to criminal breach of trust. A loss to anybody forms no part of the statutory definition of that offence.

An offence of criminal breach of trust is not triable at a place where neither the entrustment nor any positive act of conversion of the monies entrusted took place because an offence of criminal breach of trust always consists in an act and not in an omission.

5. In the Allahabad case the complainant living at Cawnpore had agreed with an agent to collect certain monies for him and account for them at Cawnpore. The agent collected monies in Bengal and failed to account for them at Cawnpore.