iminal Appeal No 51 of 1959
Appeal by special leave from the judgment and order dated May 16 1958 of the Calcutta High Court in Criminal Appeal No 2 of 1958
A section B Chari K C Jain and B P Maheshwari for the appellant
N C Chatterjee H R Khanna and D Gupta for respondent
April 19
The Judgment of the Court was delivered by RAGHUBAR DAYAL J
This appeal by special leave is from the order of the Calcutta High Court dated May 16 1958 summarily dismissing the appeal of the appellant from the order of the learned Single Judge of the High Court convicting him on jury trial of offences under section 120 B read with section 471 Indian Penal Code and on two counts under section 471 read with section 466 Indian Penal Code with respect to two documents
L N Kalyanam who was also tried at the same trial and convicted of the offences under section 120 B read with section 471 Indian Penal Code two counts under section 466 Indian Penal Code and of the offence under section 109 read with section 471 Indian Penal Code did not appeal against his conviction
The brief facts of the prosecution case are that the appellant Purushottamdas Dalmia was one of the partners of the firm known as Laxminarayan Gourishankar which had its head office at Gaya and branch at Calcutta
The Calcutta branch was located at 19 103 Sambhu Mallick Lane
On April 26 1952 the appellant applied for a licence for importing rupees one crore worth of art silk yarn
On May 2 1952 the Joint Chief Controller of Imports Calcutta issued a provisional licence
In accordance with the rules this licence was to be got confirmed within two months by the Deputy or Chief Controller of Imports and on such confirmation it was to be valid for a period of one year
The licence was to be treated as cancelled in case it was not got confirmed within two months of the date of issue
This provisional licence was not confirmed within two months
The appellant was duly informed of the refusal to confirm the licence
The appellant s appeal against the refusal to confirm the licence was dismissed in September 1952
The provisional licences issued were returned to the appellant
The letter communicating the dismissal of the appeal and the return of the licence was issued from the office of the Joint Chief Controller of Imports on September 26 1952
The letter dated September 29 1952 from the office of the Chief Controller of Imports New Delhi informed the appellant with reference to the letter dated September 4 1952 that instructions had been issued to the Joint Chief Controller of Imports and Exports Calcutta for re consideration of such cases and that he was advised to contact that authority for further action in the matter
The appellant rightly did not appear to take this letter to mean that the order of rejection of his appeal was still under further consideration
He did not take any steps to contact the Joint Chief Controller of Imports and Exports on the basis of this letter
Instead he applied on October 7 1952 for the return of correspondence
That correspondence was returned to him on October 9 1952
Nothing happened up to March 31 1953 on which date the appellant wrote to the Chief Controller of Imports New Delhi a long letter expressing his grievance at the action of the Joint Chief Controller of Imports and Exports Calcutta and requesting for a sympathetic decision
The Chief Controller of Imports and Exports by his letter dated April 201953 informed the 104 appellant that the order of the Joint Chief Controller of Imports and Exports could not be revised for the reasons mentioned in that letter
This letter gave the wrong number of the appellant s firm
It mentioned its number as 16  instead of the correct number 19 
In other respects the address of this letter was correct
The appellant states that he did not receive this letter
In August 1953 the appellant met Kalyanam at Calcutta
Kalyanam told the appellant that he could get the licence validated through the good offices of one of his acquaintances Rajan by name at Delhi
Both these persons came to Delhi in August 1953 and visited Rajan
The appellant made over the file containing the licences to Kalyanam who in his turn made over the same to Rajan
Two or three days later Kalyanam returned the licences containing the alleged forged endorsements to the appellant
The forged endorsements related to the confirmation of the licence and its re validation till May 2 1954
The confirmation endorsement was purported to be dated July 2 1952 and the re validating one purported to be dated April 25 1953
Thereafter orders were placed on the basis of the re validated licence and when the goods arrived attempt was made to clear them at Madras
The clearing office at Madras suspected the genuineness of the confirmation and re validating endorsements and finding the suspicion confirmed made over the matter to the Police
As a result of the investigation and preliminary enquiry the appellant and Kalyanam were committed to the High Court for trial
Eight charges were framed
The first charge related to the criminal conspiracy between the two accused and was as follows That the said 1 Purushottamdas Dalmia and 2 L N Kalyanam along with the person or persons name or names unknown between the months of April and December one thousand nine hundred and fifty three at Calcutta Howrah Delhi Madras and other places were parties to a criminal conspiracy to commit an offence punishable with rigorous imprisonment for two years or upwards to wit an 105 offence of forgery by certificate or endorsement of confirmation and an endorsement of validation of the Import Trade Control Licence being licence No 33191348 the Exchange Control Copy whereof is Ext
5 and the Customs Copy whereof is Ext
6 purporting to be made by public servant to wit the officers and staff of the Chief Controller of Imports and Exports andor the offence of fraudulently or dishonestly using the aforesaid licence containing the aforesaid forged certificates and endorsements as to the confirmation and validation thereof knowing or having reason to believe the same to be forged documents and thereby they the said 1 Purushottamdas Dalmia and 2 L N Kalyanam committed an offence punishable under Sectionl2O B read with section 466 andor section 471 read with section 466 of the Indian Penal Code within the cognizance of this Court
 Charges Nos 2 3 and 4 were with respect to the false endorsements on the copy of the licence Ext
The second charge was under section 466 Indian Penal Code against Kalyanam alone and charges Nos 3 and 4 were against the appellant for abetting the offence of forgery by Kalyanam and of using the forged document as genuine
Charges 5 6 and 7 related to corresponding matters with respect to the licence copy Ext
The eighth charge was against Kalyanam alone and was for his abetting the appellant in his committing the offence of fraudulently and dishonestly using as genuine the Customs Copy of the said licence Ext
The jury returned a verdict of not guilty  with respect to charges Nos 3 and 6 and also with respect to the charge of conspiracy under section 120 B read with section 466 Indian Penal Code
The jury returned a verdict of guilty  against the appellant on the charge of conspiracy under section 120 B read with section 471 Indian Penal Code and the other charges Nos 4 and 7
It is not disputed and cannot be disputed that forgeries were committed in the two documents Exts
5 and 6
The following points were raised by learned counsel for the appellant 14 106 i The offences of using the forged documents as genuine were committed at Madras and therefore the Courts at Calcutta had no jurisdiction to try these offences under section 471 read with section 466 Indian Penal Code
ii Alternative conspiracies could not be charged as they must be the result of different agreements between the conspirators
iii The learned Judge misdirected the jury in putting certain matters before it in the form he had done
The chief criticisms in this connection were that a the accused must have known from the ante dating of the confirmation endorsement that the re validation of the licence was a forgery b even if the proper officer of the Department had signed the re validation it would still be a forgery when it was ante dated c the letter of the Chief Controller of Imports and Exports dated April 20 1953 though wrongly addressed must have reached the appellant d the learned Judge expressed his opinions strongly and this could have unduly affected the mind of the jury and forced it to come to the same conclusions
The jurisdiction of the Calcutta High Court to try an offence of criminal conspiracy under section 120 B Indian Penal Code is not disputed
It is also not disputed that the overt acts committed in pursuance of the conspiracy were committed in the course of the same transaction which embraced the conspiracy and the acts done under it
It is however contended for the appellant in view of section 177 of the Code of Criminal Procedure that the Court having jurisdiction to try the offence of conspiracy cannot try an offence constituted by such overt acts which are committed beyond its jurisdiction and reliance is placed on the decision in Jiban Banerjee vs State 1
This case undoubtedly supports the appellant s contention
We have considered it carefully and are of Opinion that it has not been rightly decided
The desirability of the trial together of an offence of criminal conspiracy and of all the overt acts committed in pursuance of it is obvious
To establish the offence of criminal conspiracy evidence of the 1 AIR 1959 Cal
107 overt acts must be given by the prosecution
Such evidence will be necessarily tested by cross examination on behalf of the accused
The Court will have to come to a decision about the credibility of such evidence and on the basis of such evidence would determine whether the offence of criminal conspiracy has been established or not
Having done all this the Court could also very conveniently record a finding of guilty  or not guilty  with respect to the accused said to have actually committed the various overt acts
If some of the overt acts were committed outside the jurisdiction of the Court trying the offence of criminal conspiracy and if the law be that such overt acts could not be tried by that Court it would mean that either the prosecution is forced to give up its right of prosecuting those accused for the commission of those overt acts or that both the prosecution and the accused are put to unnecessary trouble inasmuch as the prosecution will have to produce the same evidence a second time and the accused will have to test the credibility of that evidence a second time
The time of another Court will be again spent a second time in determining the same question
There would be the risk of the second Court coming to a different conclusion from that of the first Court
It may also be possible to urge in the second Court that it is not competent to come to a different conclusion in view of what has been said by this Court in Pritam Singh vs The State of Punjab 1 The acquittal of Pritam Singh Lohara of that charge was tantamount to a finding that the prosecution had failed to establish the possession of the revolver exhibit P 56 by him
The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he had been charged
That fact was found against the prosecution and having regard to the observations of Lord Mac Dermoidal quoted above could not be proved against Pritam Singh Lohara
in any further proceedings between the Crown and him 1 AIR 1956 section C 415 422 108 In these circumstances unless the provisions of the Code of Criminal Procedure admit of no other construction than the one placed upon them by the Calcutta High Court they should be construed to give jurisdiction to the Court trying the offence of criminal conspiracy to try all the overt acts committed in pursuance of that conspiracy
We do not find any compelling reasons in support of the view expressed by the Calcutta High Court
It is true that the Legislature treats with importance the jurisdiction of Courts for the trial of offences
Jurisdiction of Courts is of two kinds
One type of jurisdiction deals with respect to the power of the Courts to try particular kinds of offences
That is a jurisdiction which goes to the root of the matter and if a Court not empowered to try a particular offence does try it the entire trial is void
The other jurisdiction is what may be called territorial jurisdiction
Similar importance is not attached to it
This is clear from the provisions of sections 178 188 1972 and 531 Criminal Procedure Code
Section 531 provides that No finding sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry trial or other proceeding in the course of which it was arrived at or passed took place in a wrong sessions division district sub division or other local area unless it appears that such error has in fact occasioned a failure of justice
 The reason for such a difference in the result of a case being tried by a Court not competent to try the offence and by a Court competent to try the offence but having no territorial jurisdiction over the area where the offence was committed is understandable
The power to try offences is conferred on all Courts according to the view the Legislature holds with respect to the capability and responsibility of those Courts
The higher the capability and the sense of responsibility the larger is the jurisdiction of those Courts over the various offences
Territorial jurisdiction is provided just as a matter of convenience keeping in mind the administrative point of view with respect to the work of a particular Court the convenience of the accused 109 who will have to meet the charge levelled againt him and the convenience of the witnesses who have to appear before the Court
It is therefore that it is provided in section 177 that an offence would ordinarily be tried by a Court within the local limits of whose jurisdiction it is committed
It was said in Assistant Sessions Judge North Arcot vs Ramaswami Asari 1 The scheme of chapter XV 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 minimise 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
 It is further significant to notice the difference in the language of section 177 and section 233
Section 177 simply says that ordinarily every offence would be tried by a Court within the local limits of whose jurisdiction it was committed
It does not say that it would be tried by such Court except in the cases mentioned in sections 179 to 185 and 188 or in cases specially provided by any other provision of law
It leaves the place of trial open
Its provisions are not peremptory
There is no reason why the provisions of sections 233 to 239 may not also provide exceptions to section 177 if they do permit the trial of a particular offence along with others in one Court
On the other hand section 233 dealing with the trial of offences reads For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in sections 234 235 236 and 239
 The language is very peremptory
There is a clear direction that there should be a separate charge for every distinct offence and that any deviation from such a course would be only in cases mentioned in sections 234 235 236 and 239
It is true that it is not stated in express terms 1 Mad 779 782 110 either in section 235 or section 239 that their provisions would justify the joint trial of offences or of persons mentioned therein in a Court irrespective of the fact whether the offences to be tried were committed within the jurisdiction of that particular Court or not
But such in our opinion should be the interpretation of the provisions in these two sections
The sections do not expressly state that all such offences which can be charged and tried together or for which various per
sons can be charged and tried together must take place within the jurisdiction of the Court trying them
The provisions are in general terms
Sub sections 1 to 3 of section 235 provide for the offences being charged with and tried at one trial and therefore provide for the trial of those offences at one trial in any Court which has jurisdiction over any of the offences committed in the course of the same transaction
The illustrations to section 235 also make no reference to the places where the offences were committed
In particular illustration c can apply even when the offences referred to therein were committed at places within the territorial jurisdiction of different Courts
Similarly section 239 provides for the various persons being charged and tried together for the same offence com mitted in the course of the same transaction are accused of different offences committed in the course of the same transaction
Such offences or persons would not be tried together if some of the offences are committed by some of them outside the jurisdiction of the Court which can try the other offences if the contention for the appellant be accepted and that would amount to providing by construction
an exception for these sections
As sections 235 and 239 of the Code are enabling sections the legislature rightly did
not use the expression which would have made it incumbent on the Court to try a person of the various offences at one trial or to try various persons for the different offences committed in the course of the same transaction together
The omission to make such peremptory provision does not necessarily indicate the intention of the legislature that the Court having jurisdiction to try certain offences cannot try an offence committed 111 in the course of the same transaction but beyond its jurisdiction
No definite conclusion about the approval of the legislature to the interpretation put on the provisions of sections 235 and 239 Criminal Procedure Code by the Calcutta High Court in Bisseswar vs Emperor 1 or by the Madras High Court in In re Dani 2 and in Sachidanandam vs Gopala Ayyangar 3 can be arrived at when it is found that there had been some cases which expressed the contrary view
The case law having a bearing on the question under determination is however meagre
In Gurdit Singh vs Emperor 4 the conspiracy to murder a person was entered into in the district of Montgomery in Punjab and the attempt to murder that person in pursuance of that conspiracy was made within the jurisdiction of the Magistrate at Roorkee in the United Provinces
Broadway
J said It appears that rightly or wrongly an allegation has been made that the abetment by conspiracy or by instigation took place in the Montgomery District and that therefore the case can be tried either at Roorkee or in Montgomery
Section 180 Criminal Procedure Code is clear on this point and no further discussion is needed
 In In re Govindaswami 5 a person murdered A and B one after the other in the same night
The houses of A and B were divided by a street which formed the boundary between two districts
The accused was sent up for trial for the murders of A and B to the various Courts having Jurisdiction to try the offences of the murder of A and of the murder of B
The learned Judges said There is a further aspect of the case on which we would like to make some observations
These two cases of alleged murder by the same appellant one after the other that same night brought as they were into the same confession should obviously have been tried by one and the same 1 A IR 2 AIR 1936 Mad
3 Mad
991 994
4 517
5 A I R 1953 Mad 372 373
112 Sessions Judge
The street between the houses of Govindan Servai and Malayappa Konan appears however to have been a boundary between the districts of Tiruchirapalli and Tanjore and one murder was committed in the jurisdiction of the Sessions division of Tiruchirapalli and the other in the jurisdiction of the Sessions division of Tanjore
This appears to have been the only reason why two separate charge sheets were laid in respect of these murders
The learned Public Prosecutor agrees that there was no impediment to the two murders being tried together under section 2341 Cr P C and it is indeed obvious that one Court should have dealt with both these murders
 The two cases could not be tried by any one of the two Sessions Courts if the provisions of section 234 Criminal Procedure Code were subject to the provisions of sections 177 to 188 with respect to the territorial jurisdiction of Criminal Courts
In Sachidanandam vs Gopala Ayyangar 1 Odgers J relying on the case reported as Bisseswar vs Emperor 2 held that unless the abetment of an offence took place within its territorial jurisdiction a Court could not avail itself of the provisions of section 239 to try such abetment along with the principal offers
He observed I am doubtful about the matter I must say but 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 Code and if that is so it clearly must govern section 239 The approval of the Legislature of a particular construction put on the provisions of an Act on account of its making no alteration in those provisions is presumed only when there had been a consistent series of cases putting a certain construction on certain provisions
1 Mad
991 994 2 AIR 1924 Cal
113 Lastly an implied support to the view we are inclined to take is to be obtained from the observations of the Judicial Committee in Babulal Choukhani vs The King Emperor  1 Nor is there any limit of number of offences specified in section 239d
The one and only limitation there is that the accusation should be of offences committed in the course of the same transaction 
Whatever scope of connotation may be included in the words the same transaction  it is enough for the present case to say that if several persons conspire to commit offences and commit overt acts in pursuance of the conspiracy a circumstance which makes the act of one the act of each and all the conspirators these acts are committed in the course of the same transaction which embraces the conspiracy and the acts done under it
The common concert and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it
 This indicates that the only limitation on the jurisdiction of the court to charge and try together various persons in pursuance of the provisions of cl
a of section 239 Criminal Procedure Code is that the accusation against those persons should be of offences committed in the course of the same transaction
It cannot be disputed that the accusation against the accused with respect to the overt acts committed by them in pursuance of a conspiracy is with respect to offences committed in the course of the same transaction and that therefore persons accused of these offences can be tried together at one trial in pursuance of the provisions of el
a of section 239
We therefore hold that the Calcutta Court had jurisdiction to try the appellant of the offences under section 471 read with section 466 Indian Penal Code even though those offences in pursuance of the conspiracy were committed at Madras
The second contention for the appellant is really to the effect that the appellant was charged with two conspiracies in the alternative and that such a charge 1 1938 LR 65 IA 158175 176
15 114 is unwarranted by law
This however is not the correct interpretation of the charge of conspiracy framed against the appellant
The charge was one of conspiracy it being a conspiracy to commit an offence punishable with rigorous imprisonment for two years or upwards
The particular offence to be committed was described in the alternative
One was to commit an offence of forgery and to use the forged document and the other was the offence of fraudulently or dishonestly using the licence containing the forged certificates and endorsements
The expression andor  in the first charge simply meant that the offences they had conspired to commit consisted either of the offence to commit forgery and subsequently to use the forged document as genuine or the object was merely to use the licence with forged endorsements even though there was not any conspiracy to commit forgeries in the licences
In other words the charge was that the appellant and Kalyanam entered into a conspiracy to commit offences punishable with rigorous imprisonment for two years or upwards and that the offences contemplated to include the offence of using the licence with forged endorsements and may also include the offence of forging the licence
Thus there was no case of two alternative conspiracies
The conspiracy was one and it being doubtful what the facts proved would establish about the nature of offences to be committed by the conspirators the charge illustrated the offence in this form
In his charge to the jury the learned Judge said at page 14 In this case from the circumstances it may not be very clear whether they actually made an agreement among themselves to do or cause to be done forgery of the document or whether they merely agreed to use it as a genuine document knowing that it was a forged document
Therefore the charge is in the alternative that either they agreed among themselves to do or cause to be done the forgery of this document or rather the forgery of the endorsements of confirmation or revalidation or in the alternative they agreed among themselves regarding user of such a forged document knowing 115 that it is forged
So both andor  is mentioned in the charge either they agreed to commit forgery or they agreed to use it knowing it is forged or they agreed to do both both to commit forgery and use it knowing it to be a forged document
 Such a charge is justified by the provisions of section 236 of the Code
We are therefore of the opinion that the charge of conspiracy does not suffer from any illegality
We have carefully considered all that has been said in connection with the alleged misdirections in the charge to the jury and are of opinion that the charge does not suffer from this defect
The Judge has at places expressed in unequivocal language what appears to him to be the effect of certain pieces of evidence
But that in our opinion has not been in such a setting that it be held that the jury must have felt bound to find in accordance with that opinion
The Judge has at various places stated that the jury was not bound by his opinion that it had to come to its own conclusion on questions of fact and that it was the function of the jury to decide all questions of fact
There is nothing wrong in telling the jury that even if the endorsements had been made by the proper departmental officer and they were ante dated forgery would have been committed
That is the correct proposition of law
The ante dated document would be a false document
Knowledge of ante dating the endorsements naturally conveyed knowledge of the commission of forgery
The mistake in the letter dated April 20 1953 from the Chief Controller of Imports and Exports is not such as to lead to the conclusion that the letter could not have been delivered to the proper addressee
The appellant s firm is located at 19 Sambhu Mallick Road and the address of this letter gave the number as 16
Shop No 16 could not have been at much distance from Shop No 19
The postman delivering letters at the two shops must be the same
Postmen get to know the regular addressees by their names and ordinarily locate them even if there be some slight error or even omission in the address
The letter 116 addressed to the appellant s firm is not proved to have returned to the dead letter office or to the Chief Con troller of Imports and Exports
If it was delivered by the postman at the Shop No 16 ordinary courtesy requires that shop would have sent over the letter to the neighboring Shop No 19
The appellant s conduct in not taking any action to find out what was the result of his representation to the Chief Controller of Imports and Exports is consistent with the view that he did receive the reply of the Chief Controller of Imports and Exports
In the circumstances an expression of opinion that the letter would have reached the appellant cannot be said to amount to a misdirection
The learned Judge is perfectly justified to ask the jury to take into consideration the probabilities of a case where no definite evidence in connection with an incidental matter exists
We do not consider that the contentions raised do amount to misdirections
In view of the above we see no force in this appeal and accordingly dismiss it
Appeal dismissed


Summary:
The appellant was convicted by the Court of Session High Court Calcutta of offences under section 120B read with section 471 and section 471 read with section 466 of the Indian Penal Code in respect of an import licence
His appeal against the order of conviction and sentence passed by the trial judge was summarily dismissed by the High Court
Although the conspiracy was entered into at Calcutta the offences of using the forged documents as genuine were committed at Madras
It was contended on behalf of the appellant in this Court that the said offences having been committed outside the territorial jurisdiction of the Calcutta Courts they had no jurisdiction to try the offences under section 471 read with section 466 of the Indian Penal Code even though committed in pursuance of the conspiracy and in course of the same transaction
Held that the desirability of trying all the overt acts committed in pursuance of a conspiracy together is obvious and SS
177 and 239 of the Code of Criminal Procedure properly construed leave no manner of doubt that the court which has the jurisdiction to try the offence of criminal conspiracy has also the jurisdiction to try all the overt acts committed in pursuance of it even though outside its territorial jurisdiction
jiban Banerjee vs State AIR 1959 Cal
500 overruled
Pritam Singh vs The State of Punjab AIR 1956 SC 415 referred to
Babulal Choukhani vs The King Emperor 1938 LR 65 IA 158 relied on
It is evident from the relevant provisions of the Code of Criminal Procedure that of the two types of jurisdiction of a criminal court namely 1 that of trying a particular offence and 2 its territorial jurisdiction while the former goes to the root of the matter and any transgression of it renders the entire trial void the latter is not of a peremptory character and leaves the place of trial open
Assistant Sessions judge North Arcot vs Ramaswami Asari Mad 779 referred to
Although SS 235 and 239a of the Code of Criminal Proce dure do not expressly so provide there can be no doubt that 102 they contemplate the joint trial of offences and persons mentioned therein in a court whether or not all the offences to be tried by it are committed within its territorial jurisdiction the only limitation being that the offences must have been committed in the course of the same transaction
Section 177 of the Code therefore does not control section 239
No presumption as to the approval of the Legislature of a particular construction of a statute can be drawn from the absence of any statutory modification of its provisions unless there is a consistent series of decisions in favour of that construction
Case law discussed