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Report No. 41

15.41. Amendment recommended.-

X is travelling by train from Bombay to Calcutta and at some place not definitely known is killed and robbed. The offender is traced but it cannot be said that he was performing any journey when he committed the offence. He might have got into the train at one station, committed the offences and got out of the train at the same or the next station. While the apparent intention of section 183 is to enable the inquiry or trial in such a case being held in any local area between Bombay and Calcutta, the wording will stand in the way as it cannot be shown that the accused was performing any journey. We recommend that the section should be redrafted on the following lines.-

"When an offence is committed whilst the person by or against whom, or the thing in respect of which, the offence is committed is in the course of performing a journey or voyage, the offence may be inquired into or tried by a court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage."

15.42. Scope of section 183 not widened by section 180.-

In a recent reported case,1 some articles were stolen from a passenger travelling by train from one place to another in Rajasthan. Subsequently these articles were recovered from different persons at different places outside that State. When these persons were prosecuted for the offence of receiving stolen property in a Rajasthan court, the Rajasthan High Court decided that section 183 had no application, since the offence was certainly not committed during the train journey of the complainant and that if section 18.-vide illustration (b.-was relied on, the offender could be tried only by a court within whose jurisdiction the theft was actually committed. This appears to us to be correct position and does not require any change.

1. Munna Lal v. State, AIR 1964 Raj 118.

15.43. Corresponding provision in England.-

Incidentally, we notice that the corresponding provision in England is to the effect1 that "where an offence has been committed on any person, or on or in respect of any property, in or on a vehicle or vessel engaged on any journey or voyage through two or more local jurisdictions, the offence may be treated, for the purposes of the preceding provisions of this Act, as having been committed in any of those jurisdictions". This is somewhat narrower in scope and effect than the provision in section 183 of the Code or the formally revised provision suggested above.

1. Section 3(3) of the Magistrates' Courts Act, 1952.

15.44. Section 184 unnecessary.-

Section 184 provides that "all offences against the provisions of any law for the time being in force relating to railways, telegraphs, the post office or arms and ammunition may be inquired into or tried in a Presidenc.-town whether the offence is stated to have been committed within such town or not, provided the offender and all the witnesses necessary for the prosecution are to be found within such town." The section was taken from sections 238 and 239 of the Presidency Magistrates' Courts Act, 1877.

Even if it served some useful purpose in those days it does not appear to have been resorted to or found useful in any appreciable number of cases in recent times. The proviso seems to look only to the convenience of prosecution in requiring the presence in the Presidenc.-towns of all the witnesses for the prosecution. There appears to be no good reason for this special provision applying only to the three Presidenc.-towns and in respect of only four Central Acts. The section should be omitted.

15.45. Venue in case of joinder of charges and joint trials.-

It will be convenient at this stage to consider the problem of venue in relation to joinder of charges and joint trials for which provision is made in sections 234, 235, 236 and 239 of the Code. Except as provided in these sections there has to be a separate charge for every distinct offence of which any person is accused and every such charge has to be tried separately under section 233.

When under sections 234, 235 or 236 an accused person may be charged with and tried at one trial for all or more offences, it is but reasonable to assume that the venue for the trial can be laid in any local jurisdiction within which any of those offences may be inquired into or tried under the provisions of Chapter XV of the Code. Similarly when under section 239 two or more persons may be charged with and tried together for different offences, the prosecution has a similar choice of venue for the trial.

15.46. Decisions of Supreme Court in cases of criminal conspiracy.-

This question has, however, been frequently raised in the courts in regard to a criminal conspiracy. It has now been held by the Supreme Court1 that the court having jurisdiction to try the offence of criminal conspiracy, even if those offences were committed outside the jurisdiction of the court, as the provisions of section 239 are not controlled by section 177.

It was observed in that decision, that "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." In another decision,2 the Supreme Court has also held that a court having jurisdiction to try the offences committed in pursuance of the conspiracy can try the main offence of conspiracy, even if it was committed outside the jurisdiction of the court.3

1. Purushottam Das Dalmia v. State of West Bengal, (1962) 2 SCR 106: AIR 1961 SC 1589.

2. L.N. Mukherjea v. State, (1962) 2 SCR 116: AIR 1961 SC 1601.

3. See also R.K. Dalmia v. Delhi Administration, (1963) 1 SCR 253: AIR 1961 SC 1821.

15.47. Express provision recommended.-

However, since there appears to be a lacuna in the venue provisions and this has led to controversies in the court proceedings, we recommend that an express provision should be made on the following lines.-

"184. Place of trial for offences triable together.-Where

(a) the offences committed by any person are such that he may be charged with and tried at one trial for, each such offence by virtue of the provisions of sections 234, 235 or 236, or

(b) the offence or offences committed by several persons are such that they may be charged and tried together by virtue of the provisions of section 239, the offences may be inquired into or tried by any court competent to inquire into or try any of the offences."

This provision would only be giving effect to a view accepted by the Supreme Court as right and proper and would not, in our opinion, be prejudicial to the accused in any way.

15.48. Section 185.-

Provision is made in section 185 for deciding any question arising as to the court which "ought to inquire into or try an offence". This formula was adopted in su.-section (1) of the section when it was revised by the Amendment act of 1923 to make it clear that, in deciding the question, the High Court could take into account, not only the convenience of the prosecution or the defence, but also the competence of the forum. The High Court however, cannot decide a question under this section unless the matter is brought to its notice with the proper records. As was suggested by the Calcutta High Court in State v. Sadananda Darji, AIR 1952 Cal 563, it would be convenient if the High Court made rules laying down the procedure to be, followed by subordinate courts in making a reference under this section.

15.49. Power should be with High Court.-

With reference to su.-section (1) we considered a suggestion that it should be amended so as to provide that the court which first took cognizance should try the offence, thereby saving the time of the High Court. Reference was made to the analogous provision in section 10 of the Civil Procedure Code, but different considerations must apply to criminal proceedings where the question of proper forum could be of importance, both to the prosecution and the defence. Where, for instance, proceedings for the same offence against different persons are instituted in different courts, one on complaint and the other on police report, the court which first took cognizance may not be the proper forum, and the power to decide the question should be with the High Court.

15.50. Modification of su.-section (1) suggested.-

It will be noticed that the wording of su.-section (1) is wide enough to permit a reference being made by a subordinate court which has first taken cognizance of an offence even where no other court subordinate to the same High Court has taken cognizance of that offence. For a reference under su.-section (2), however, the requisite condition is that two or more courts not subordinate to the same High Court should have taken cognizance of the same offence. While this difference in approach appears to have been deliberate and for fairly obvious reasons, we feel that no harm would be done by bringing su.-section (1) into line with su.-section (2) in this respect. Even where the question of forum concerns only one High Court it need be referred to it for decision only when two or more subordinate courts have taken cognizance of the offence.

Code of Criminal Procedure, 1898 Back

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