CASE OF MOBARIK ALIAHMED V.

STATE OF BOMBAY

BY
ISHITA PANDEY
INTERN
1stYEAR,
LLOYD LAW COLLEGE
GREATER NOIDA,
UTTAR PRADESH
Mob-8869905060
Email-pandeyishita2203@gmail.com

26th APRIL 2020

 Mobarik AliAhmedcase And It’s Impact On Society

Background Of The Case

At a certainpointof time, there was a scarcity of rice in Goa. At that time the complainant, the
Director of a import and export firm popularly known as Colonial Limitada was anxious to
import rice and contacted his friend Rosalio Carvalho who was working as a commission agent
and resided in Bombayto import rice. Rosalio further contacted Jasawalla who also used to
work as a commission agent under Universal Supply Corporation. Jasawallacontacted the
appellant who during that time was carrying business in Karachi. Further, by exchange of letters
between Jasawalla and the appellant and Jasawalla and the complainant a contract of purchase
1200 tons of rice at the rate of £ 51 per ton to be shipped from Karachi to Goa was brought
about. The payment was to be made by paying 25% in advance, 50% on shipping of rice and the
rest was to be paid after the shipping papers were presented. Subsequently, the payment of
81,000 was made on July 23, 1951 to one of the defendent who was working as an agent of the
appellant and the receipt for the payment was given by him to the complainant on behalf of the
appellant. The second and third sum of money amounting to Rs 2,30,000 and 2,36,900 was paid
on 28 August and August 29,1951 on the basis of the information received from the appellant
stating that rice was going to be shipped and the amounts were paid on the basis of various
representations made by the appellant and all these amounts were admitted to have been
received by the appellant and the receipt was also produced by the agent of the appellant on his
behalf. However, the rice was never shipped in fact and all the telegraphic communications were
false and misrepresented by the appellant and the amount was also not returned to the
complainant. The appellant was convicted by the Presidency Magistrate under Section 420 read
with section 34 of the Indian Penal Code, 1860 on three counts of cheating viz. the first amount
of 81,000, second for an amount of 2,30,000 and third for a amount of 2,36,900.He was
convicted with a two years rigorous imprisonment and a fine of Rs 1000 for the first amount
and similarly for twenty two months rigorous imprisonment and a fine of 1000 for second
amount and 2 months imprisonment for the third amount. The appellant filed a special leave
petition in Honorable Supreme Court of India on the grounds that his conviction cannot be
carried out on the grounds that he was not present in India at the time the offence was
committed. In the appeal filed in the landmark judgmentMobarik Ali Ahmed V. State of
Bombay1 the Supreme Court held that even if the offender was not in India at the time of offence
and is not a Indian citizen he shall be punished under the Indian Penal Code. The Court through
this judgement ended the question of criminal jurisdiction extending to foreign nationals and of
extra territorial powers of a state.

International Law Related to Criminal Jurisdiction

Halsbury Laws of England para 581 and The Hyde’s International laws states the jurisdiction in
respect of the acts done by the person outside the territory of the state. It is thereon well
established that authors of the act which on commission are in the territory of another state the
crime is regarded as have been committed in the state if one of the elements of crime or
exclusively it effects are produced in that state. It also established that if the act of a person
produces detrimental effects on the state, the state shall succeed in punishing the person and
taking him in its power. The question of jurisdiction has also been settled in the case of Queen
VS. Keyn2that states that’ it is the locality of the offence that determines the jurisdiction and it is
not the nationality of the offender that determines the jurisdiction.

Facts in Issue

A special leave petition is filed in the Honorable Supreme Court of India by the appellant under
Section 136 of the Constitution of India on the grounds that there exists a question of law that
exists of criminal jurisdiction. The conviction was contended on the basis thatduring the time of
offence the appellant did not step in India and was outside the Indian territory. There also existed
a question of whether he can be tried for this offence since he was brought to India by a virtue of
extradition from England for the different offence that he had committed in India. The charge
under section 34 of the Indian Penal Code was requested to be held unsustainable since the
defendent represented as defendent 2,3and 4 were notInfront of the court and the appellant not
being in Bombay at the time of offence and so there was no act committed conjointly. The
documents such as telegraphs and letters were requested to be declared disputed and
inadmissible under section 16 of Indian Evidence Act,1872.

1
Mobarik Ali Ahmed vs. The State of Bombay 1957 AIR 857

2
The Queen vs. Keyn
Appellant’s Argument

a) The appellant is a Pakistani national and never stepped India during the entire period of
commission of offence. He has not committed any offence punishable under Indian Penal
Code and cannot be tried by the Indian Court.
b) The appellant was brought from England by the virtue of extradition in connection to
other offence, the trial of which is pending so he cannot be tried and convicted for
different offence like the present.
c) The various documents like the letter and telegram presented by the complainant are
legally inadmissible since no one saw the appellants writing those letters.
d) The charge under section 420 read with section 34 of the Indian Penal Code for the
conjoint acts of the appellant and the defendent 2,3,4 arenot sustainable since the
defendent are not present in front of the court and the appellant during the time of offence
was not present in India.

Complainants Arguments

a) a person who is defendantcommission of an offence by the reason of his act can be tried
by a court under whose local jurisdiction the act has been done.
b) The appellant was surrendered to the Indian authorities under Fugitive Offenders Act,
1881 and there is no provision in this act preventing arrest in India for the purpose of a
trial in fresh offence, his conviction upon his trial is valid.
c) The contents of the messages received in the form of the letters and telegraphs in the
context of chain of correspondence may well furnish proof of authorship on the
dispatching end.
d) The facts of the case support conviction under section 420 read with section 34 as the
defendant 2,3,4 were working on the direction and behalf of the appellant.

Cheating

Cheating is a criminal offence described under section 415 of the Indian Penal code as
whoever by deceiving a person dishonestly induces this person to deliver any property to any
 person or induces the deceived person to do or omit to do some act which he would have
done or not omit to do such as that act would damage or cause harm to that person body,
property, mind and reputation is said to “cheat”. The same shall be punishable with the
punishment extending to seven years and also liable with fine. A dishonest concealment of
facts is a deception within the meaning of cheating.

Acting Dishonestly

The term ‘acting dishonestly’ has been defined under section 24 of Indian Penal Code. The
term is defined as, “whenthe doing of any act or not doing of any act causes wrongful gain of
property to one person or a wrongful loss of property to a person the act is done dishonestly.”

Property

The property has a wider meaning. It does not only include money but others things as well
which can be measured in terms of money. The property should be in a complete ownership
of the person and he must have the full right to enjoy its possession.

Fraudently

Fraudulent means which involves deception mainly criminal deception. According to section
25 a person is said to do a thing fraudulently if he does that thing with intent to defraud but
not otherwise.

In the case of S.W. Palantikar V. State of Bihar3it was held that to convict a person for the
offence of cheating there should be pre-existing dishonest or fraudulent intention of person
from the beginning but in case of Breach of Contract the dishonest intention is not present in
the beginning of the agreement.

Breach of Contract

A breach of contract is the violation of any of the agreed- upon terms and conditions of a
binding contract. The breach could be anything from a late payment to a more serious
violation such as failure to deliver a promised asset.

3
S.W. Palantikar And Ors vs State of Bihar 2001(1) BLJR 527
 In the case of Vesa Holdings(P) Ltd. V. State of Kerala 4that breach of contract can amount
to cheating where there was a deception played at the very inception. It is true that a given set
of facts may make out a civil wrong and also a criminal offence and only because a civil
remedy may be available to the complainant that cannot be a ground to quash a criminal
proceeding. The really test is whether the allegations in the complaint enclose disclose the
criminal offence of cheating or not. The legal principles need to applied in the facts to
ascertain whether or not the offence of cheating is made out.

Criminal Jurisdiction

Criminal Jurisdiction is usually defined as a special type of state power, the power to punish.
Criminal Jurisdiction has a national and a international dimension. The Halsbury rules of
England have laid down that for the purpose of criminal jurisdiction an act may be regarded
to be done in the English territory even if the person is in abroad and hires an agent to do an
act which has detrimental effects on the territory of England or a part of the elements of his
act has been committed in England he can be tried if he subsequently comes to England.

The Hackworth Digest of International Law has further elaborated on the question of
criminal jurisdiction by stating that act done beyond the jurisdiction but intending to produce
or producing detrimental effects within the territory it is justified for the state to punish for
the effects of the harm done and the State would succeed in getting the person in power. It is
established in the case of SSLotus5that in certain countries Criminal legislation is given
territorial character and the offence to which the author is outside the territory of the state is
not seen to have committed the offence in the national territory of the State. In contrast the
Oppenheim’s InternationalLaw emphasize on the principle that exercise of criminal offence
depends on the locality of the offence and not on the nationality of a offence.

Section 2 of the Indian Penal Code defines punishment of offences committed in India and in
contrast section 3 defines punishment for offences committed beyond, but which by law may
be tried in India. Section 3 recognizes the principle of criminal jurisdiction on the basis of

5
S.S. Lotus (Fr. Turk), 1927 P.C.I.J.(ser.A) No.10
 locality of an offence to be within India irrespective of the nationality of the offender. The
phrase “every other” person in section 2 is in contrast to the phrase “every other” in section
as section 3 is indicative of the ides that to an extent the guilt of an offence committed within
India and can be attributed to the person and every such person without exception is liable for
punishment under this code.

In the case of Privy Council in Macleod v. Attorney general of New South Wales 6 it was
held that a foreigner not present corporeally at the time of commission of offence does not
fall under the jurisdiction of the court and any interpretation which extends the territorial
legislation should be avoided. There has been a subsequent change in the doctrine of extra
territorial legislation since that time as defined in the case of Governor-General v. Rayleigh
Investment7 and Emperor v. ChhotalalBabar8where it was held that foreign national who
has committed offence in India the court has the jurisdiction of his trial.

International Law v Municipal Law

International Law is a law which governs the Relation of sovereign independent States.
Municipal Law or State law or National Law is the law of a State or a Country and is opposed to
International Law which consists of rules which civilized States consider as binding upon them
in their mutual relations.

Legislations and court system are different in international and municipal levels.

 Municipal level uses legislature to enforce and test the laws

 International Court system relies on a series of treaties without a legislature which makes
all countries equal

Implementation of International Obligations

Article 51(C) of the Constitution of India provides for a provision by the virtue of which
international law become implementable. Article 51(c) enjoins the State to endeavor to foster
respect for international law and treaty obligations in dealings of organized people with one

6
Privy Council in Macleod v. Attorney general of New South Wales1894 AC 57
7
Governor-General v. Rayleigh Investment 1943 11 IITR 393CAL
8
Emperor v. Chhotalal Babar (1912 ) 14 BOMLR 367
another. Article 51 enshrines one of the fundamental principles of State policy (DPSP),
embodied in Part IV of the Constitution. The directive principles, according to article 37, are not
enforceable through the court of law, nevertheless they are fundamental in the governance of the
country and there is a nonobligatory duty on the part of the State to apply these principles in
making of laws. Thus, the article 51 and the international law per se are not justiciable in the
realm of Indian municipal law. However, the non-justifiability of Article 51 does not preclude
government to strive to achieve the objectives of the international treaty.

In the case of Vellore Citizens Welfare Forum v. Union of India and Others 9, referring to the
“precautionary principle” and the “polluter pays principle” as part of the environmental law of
the country, it was held that even otherwise, once these principles are accepted as part of the
Customary International Law there would be no difficulty in accepting them as part of the
domestic law. It is almost accepted proposition of law that the rules of Customary International
Law which are not contrary to the municipal law shall be deemed to have been incorporated in
the domestic law and shall be followed by the Courts of Law.

Admissibility of The Documents

Section 88 of the Indian Evidence Act states that the Court may presume that a message,
forwarded from a telegraph office to the person to whom such message purports to be
addressed, corresponds with a message delivered for transmission at the office from which
the message purports to be sent; but the Court shall not make any presumption as to the
person by whom such message was delivered for transmission.

In the case of Punnakottaiah vs. Kolikamba10 it has been held that under Section 88 of the
Indian Evidence Act, 1872, the presumption is limited to what is expressively provided in
this Section.

Section 45 and 47 of the evidence act state that the proof relating to genuineness of document
can be direct of circumstantial. It may be either be a proof by a person who saw the person
writing the document or affixing a signature or it could be the proof of handwriting of the
contents or of the signature. The last mode of proof by the contents may be of considerable

9
Vellore Citizens Welfare Forum v. Union of India and Others 1996 /914
10
Punnakottaiah vs. Kolikamba
 value where the disputed documents purports to be a link in chain of correspondence, some
links in which are to be proved for the satisfaction of the court.

In the case of Bhima TimaDhotre vs The Pioneer Chemical Co. 11 it was held that legal
propositions, such as that proof of a document does not amount to proof of "the truth" or "the
correctness" of its contents, or that proof of a document is no "guarantee of the truth or
correctness" of its contents, are, in my opinion, entirely out of place in regard to the question
of admissibility of documentary evidence. The object of proving a document is, no doubt, to
prove the truth or correctness of those contents, but whether it amounts to proof of "the truth"
of the contents of the document is purely a question of probative value and not of
admissibility.

Handwriting

· Like other expert opinion, the opinion of handwriting expert is advisory in nature. The
expert can compare disputed handwriting with the admitted handwriting and give his opinion
whether one person is the author of both the handwriting.

· The court shall exercise great care and caution at the time of determining the genuineness of
handwriting. A handwriting expert can certify only probability and 100% certainty. On the
question of the handwriting of a person, the opinion of a handwriting expert is relevant, but it
is not conclusive and handwriting of a person can be proved by other means also.

Validity of Section 420/34

Section 34 of the Indian Penal Code fixes equal liability for a crime on all persons who had
common intention to commit it and participated in furtherance of committing it.In the case
ofJoymalaBaghchi and Suvra Ghosh it was held that common intention is not the same as
similar intention it comes to fastening criminal liability by invoking Section 34, IPC.

Common Intention

Common intention under Section 34 of the Indian Penal Code is a species of constructive
liability which renders every member of a group who shares such intention responsible for

11
Bhima TimaDhotre vs The Pioneer Chemical Co. (1968)70 BOMLR 683
 the criminal act committed by anyone of them when such act is done in furtherance of the
common intention.in the 'criminal act' as well as in the 'common intention' which are the twin
aspects of Section 34, I. P. C

In 'Bashir v. State'12, it all the persons who are sought to be made liable by virtue of Section
34 must have done some act which is included in the 'criminal act'.

In 'Faiyaz Khan v. Rex'13,Section 34 refers to cases in which several persons both intend to
do and do an act. It does not refer to cases where several persons intend to do an act and
some one or more of them do an entirely different act.

In the case of Abdul Kader v. Emperor'14it was to convict any particular defendant
constructively under Section 34, of an offence, there must be clear evidence of some action
or conduct on his part to show that he shared in the common intention of committing murder.

Physical Presence at the Place of Offence

In the case of ShreekantiahRamayyaMunipalli v State of Bombay15 it was held that the

essence of the section that the person must be physically present at the actual commission of the
crime and must actually participate in commission of an offence in some way or the other at time
the crime is actually being committed.

Later, in the case of Willie (William) Slaney v State of Madhya Pradesh 16it was held that
section 34 of the Indian Penal Code by itself does not create any offence and where it is
possible to ascertain who did the act and where other was also sought to be liable does not
invalidate the conviction unless there was a prejudice.

Fugitive Offenders Act

Section 3 (2) of the English Extradition Act states that the person who is surrendered under
the Extradition Act in respect for an offence shall not be tried for the other offence until he
has been restored or given an opportunity of returning.
12
'Bashir v. State AIR 1953 All 668
13
'Faiyaz Khan v. Rex 1949 CriLJ 232
14
Abdul Kader v. Emperor (1947) 49 BOMLR 25
15
ShreekantiahRamayyaMunipalli v State of Bombay 1955AIR 287, 1955 SCR(1) 1177
16
Willie (William) Slaney v State of Madhya Pradesh 1956 AIR 116
 Section 8 of the Fugitive Offenders Act provides for a optional repatriation of the
surrendered person if he is acquitted of the offence for which he surrendered. In the case of
Prabhu v Emperor17and LumbhardarZutshi v. King18it was well settled that even if the
arrest in India for the purpose of trial in respect of fresh offence is considered not justified,
this cannot vitiate the conviction following upon the trial.

Judgement at A Glance

1. Appellant to be held guilty and punished under the Indian Penal Code.
2. The question of jurisdiction with regards to applicability of penal laws foreign
nationals who at the time of offence were outside the territories was ended.
3. The appellant was given the substantive sentences of two years under the first count
and twenty-two months under the second. The total term of imprisonment was three
years ten months.
4. It is legitimate to construe the Code according to the modern needs wherever it is
permissible unless it is defined in the Code or any section contrary.

Overview of Judgement

The Judgement held the appellant guilty under the India Penal Code and upheld the
conviction made by the Magistrate. The court provided with the interpretation of section 2
and 3. The Court settled the question of extra-territorial power of the state that has been a
question for many years and also stated that the jurisdiction depends entirely on the
locality of the offence and not on the nationality of the offender.

The contentions raised by the appellant on jurisdiction and the power of the court to try a
foreign national who at the time of the offence was not present in India. The court
dismissed the contentions raised by the appellant on the grounds that his extradition to
India was for the purpose of a trial of the other offence on the basis of section 3 (2) of
Fugitive Offenders Act. The court said that section 8 of the act provides for optional
repatriation for the defendant person at his request if he is acquitted. The court in this

17
Prabhu v Emperor AIR 1944 Mad 369
18
LumbhardarZutshi v. King (1950) 52 BOMLR 480
 context provided with the fact that the arrest even if not justified according to does not
vitiate the conviction of the trial.

The contentions raised by the appellant on the admissibility of the documents and liability
under section 34 of the Indian Penal Code were quashed by the court. With respect to the
contention on admissibility of the documents the court gave the interpretation of Section
88 of the Evidence Act. The court gave the analysis of section 45 and 47 of the Evidence
Act. Further, the question on validity and the liability under section 34 of the Indian Penal
Code the court brought in the concept that physical presence is not a requisite to be liable
under this section and intention to do a criminal act and preparation to do any such act
with others is sufficient to be liable under this section.

The court with regards to the previous existing concepts said that these concepts are no
more tenable after India became a dominion under Indian Independence Act 1947 and
sovereign republic under the Constitution Of India. The court also said that it is legitimate
to construe the Code according to the modern needs wherever it is permissible unless it is
defined in the Code or any section contrary.

References

 Mobarik Ali Ahmed vs. The State of Bombay 1957 AIR 857
 The Queen vs. Keyn
 S.W. Palantikar And Ors vs State of Bihar 2001(1) BLJR 527
 S.S. Lotus (Fr. Turk), 1927 P.C.I.J.(ser.A) No.10
 Privy Council in Macleod v. Attorney general of New South Wales1894 AC 57
 Governor-General v. Rayleigh Investment 1943 11 IITR 393CAL
 Emperor v. Chhotalal Babar (1912 ) 14 BOMLR 367
 Vellore Citizens Welfare Forum v. Union of India and Others 1996 /914
 Punnakottaiah vs. Kolikamba
 Bhima TimaDhotre vs The Pioneer Chemical Co.( 1968 )70 BOMLR 683
 'Bashir v. State AIR 1953 All 668
 'Faiyaz Khan v. Rex 1949 CriLJ 232
 Fazoo Khan v. Jatoo Khan AIR 1931 Cal 643
 Abdul Kader v. Emperor (1947) 49 BOMLR 25
 ShreekantiahRamayyaMunipalli v State of Bombay 1955AIR 287, 1955 SCR(1) 1177
 Willie (William) Slaney v State of Madhya Pradesh 1956 AIR 116
 Prabhu v Emperor AIR 1944 Mad 369
 LumbhardarZutshi v. King (1950) 52 BOMLR 480

About the Author

Ishita pandey is a 1st year B.A.LLB student at Lloyd Law College, Greater Noida. Her key
areasof interest are Criminal law, Family Law, Torts and Contracts and also, debating. Her
interest in legal research and legal writing cannot be kept aside from her areas of interests.
During her first 1st year of law school she has participated in various parliamentary debates
and a Trial Advocacy competition 2020, at GH Raisoni Law College, Nagpur where she was
the Quarter Finalist. She is a person who believes in new ideas and effectuating them.