Report No. 41
15.11. Amendment of proviso.-
In the proviso, the references to section 15 of the Indian High Courts Act, 1861, section 107 of the Government of India Act, 1915, and section 224 of the Government of India Act, 1935, are obsolete and should be omitted. The references to Article 227 of the Constitution and section 526 of the Code do not exhaust the legal provisions under which the High Court could issue directions of the same nature. It is also necessary to cover the possibility of previous directions issued by the Supreme Court. We recommend that the proviso may read.-
"Provided that such direction is not repugnant to any direction previously issued by the High Court or the Supreme Court under the Constitution, this Code or any other law."
15.12. Sections 179, 180 and 1.- formal amendments proposed.-
Sections 179, 180 and 182 (somewhat illogically separated by section 181 dealing with particular offences) enumerate a few general principles for determining the venue for inquiry or trial in the case of certain kinds of offences with reference to their nature and characteristics. The first two sections adopt different wording to express the same idea for which there does not appear to be any need or justification. Thus in section 179 there is no need to refer to any person who is accused of the commission of an offence when the intention is to describe the kind of offence, as is done in section 180. Then, while section 179 simply says "such offence may be inquired into or tried", section 180 refers to "a charge of the first mentioned offence". We recommend that these verbal discrepancies should be removed and the wording of the two sections assimilated as follow.-
"179. When an act is an offence by reason of a thing which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.
180. When an act it an offence by reason of its relation to another act which is also an offence or which would be an offence if the doer were capable of committing an offence x x x the first mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either act was done."
15.13. Section 181(1).-
Section 181 consists of four su.-sections, each dealing with a group of offences under the Indian Penal Code and prescribing the venue for the inquiry and trial. Su.-section (1) covers the offences of being a thug, being a thug and committing murder or rather murder committed by a thug, dacoity, dacoity with murder, belonging to a gang of dacoits and escaping from custody, and lays down that any of these offences may be inquired into or tried by a court within the local limits of whose jurisdiction the person charged is. It is noticeable that, differing from the other three su.-sections, su.-section (1) does not expressly mention the place of commission of the offence as an alternative venue, but obviously the intention is not to exclude that venue.
In fact, the rules laid down in sections 177 to 184 are not mutually exclusive but cumulative in effect and intended to facilitate the prosecution of offenders by providing a wider choice of courts for initiating the inquiry or trial. Though no practical difficulty has arisen in the application of su.-section (1) of section 181 by the absence of a reference to the place of commission of the offence, it is desirable for the sake of consistency to introduce it in this su.-section also. The su.-section may be revised to read.-
"(1) Any offence of being a thug, of murder committed by a thug, of dacoity, of dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the accused person is found."
15.14. Section 181(2).-
Su.-section (2) of section 181 indicates the possible venues for the offences of criminal misappropriation of property and criminal breach of trust. Besides the local area where the offence was committed the venue may be laid in any area within which the property which was the subject of the offence was either received or retained by the accused person.
15.15. Breach of trus.-
two types.-As defined in section 405 of the Indian Penal Code, the offence of criminal breach of trust may be one of two types. The first occurs when the trusted person dishonestly misappropriates or converts to his own use the property in question; and the second, when he dishonestly uses or disposes of that property in violation of.-
a) any direction of law prescribing the mode of discharge of the trust, or
(b) any legal contract, express or implied, which he has made touching the discharge of the trust.
The place of commission of the offence in the first type is the place where the accused dishonestly misappropriate the property or converted it to his use, and in the second type, it is the place where he dishonestly used or disposed of the property in violation of iaw or contract.
15.16. Place where offence is committed often doubtful.-
Doubt exists in many cases as to the exact manner, point of time and place where the dishonest misappropriation, conversion, use or disposal was effected. Since these matters are within the special knowledge of the accused, the complainant is unable to adopt the jurisdiction with which the offence has been committed. Though no such doubts ordinarily arise in regard to the place or places where the property in question was received or retained by the accused, these places are not always suitable for launching the prosecution.
15.17. Place of accounting as venue.-
The question has accordingly arisen in a number of reported cases whether these offences can be inquired into or tried by a court within whose jurisdiction the accused was bound, by law or contract, to render accounts or to return the entrusted property but failed to discharge that obligation. The decisions of High Courts on this point are conflicting.
15.18. Calcutta view.-
In an early Calcutta case,1 Mukerji J. of the Calcutta High Court took the view.-
"If there is a contract that the accused is to render accounts at a particular place and fails to do so as a result of his criminal act in respect of the money, he can, without unduly straining the language of the section, be said to dishonestly use the money at that place as well in violation of the express contract and so commits the offence of criminal breach of trust at that place also."
In a later case2, Rankin C.J. of the same High Court dissented from this view in the following terms.-
"I am bound to say that, while I must appreciate the great convenience that will arise if this view is accepted, I doubt extremely whether the learned Judge is right in saying that this does not unduly strain the language of section 405, I.P.C. The fact that a man fails to account in Calcutta does not seem to me to be the same thing as that he honestly uses the money in Calcutta or that he dishonestly disposes of the money in Calcutta."
At about the same time two other Judges of the Calcutta High Court, relying more on the English common law rule relating to the venue for cases of embezzlement than on the Code, held3.-
"If there is evidence apart from the fact of no.-accounting to show where the misappropriation was committed, the venue must be laid either in that place or in the place where the property was received or retained. If there is no evidence to show where the misappropriation was committed other than the fact of no.-accounting, then the venue may be laid in the place where the accused failed to account, because that is where the offence was committed within the meaning of section 181(2)."
1. Gunnanda Dhone v. Santi Prakash Nandy, AIR 1925 Cal 615.
2. Pascal v. Raj Kishore Mathur, AIR 1965 Cak 521.
15.19. Bombay view.-
In re Jivandas Savchand, AIR 1930 Bom 490, a full Bench of the Bombay High Court came to the conclusion that section 179 of the Code has no application at all to cases o.-criminal breach of trust and also completely dissented from the views taken by the Calcutta High Court in Gunananda Dhone's case. Beaumont C.J. stated.-
"With very great respect to the learned Judges who decided that case, I am quite unable to follow the line of reasoning. It seems to me to involve a confusion between the place where the offence was committed and the place where the complainant first acquired evidence that the offence had been committed. I can see nothing in section 405 of the Indian Penal Code to justify the contention that when a man in Rangoon delivers false accounts in Bombay, he is thereby making a dishonest use in Bombay of money or property which has never left Rangoon."
15.20. Allahabad view.-
In a somewhat later case,1 Sulaiman C.J. and Bennet J. of the Allahabad High Court came to the following conclusion.-
"Where there is a violation of a direction of law or a legal contract, the proof of that violation may be by negative evidence that the direction of law or the contract has not been fulfilled. We are of opinion that where the direction of law or the contract required that the accused should dispose of the property at a particular place, then the court having jurisdiction at that place will have jurisdiction to try the offence of the second part of section 405 of the Indian Penal Code where there is a charge that the accused has failed to comply with the direction of law or the legal contract and has failed to carry out his duty at that place. Where it is alleged that the accused has failed to account for the property, then the second part of section 405 will apply and jurisdiction exists at the place where the property should have been delivered by the accused."
1. Mohru Lal v. Emp., AIR 1936 All 193.
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