PURUSHOTTAMDAS DALMIA versus THE STATE OF WEST BENGAL

2 S.C.R. SUPREME COURT REPORTS

PURUSHOTTAMDAS DALMIA

THE STATE OF "WEST BENGAL

(K. SUBBA RAO antl RAGUUBAR DAYAL, ,JJ.)

Criminal Trial-]urisdiction--Court trying criminal conspi-racy committed within its territvriul furisdiction, if can try offences in pursuance of such conspiracy committed without - Code of Crimi-nal Procedure, r898 (Act V of 1898), ss. r77, 3.15· 337(a)--1ndian Penal Code, r86o (Act XLV of r86o), ss. I20B, 466, 471,

The appellant was convicted by the Court of Session, High Court, Calcutta, of offences under s. l20B read with s 471 and s. 471 read with s. 466 of the Indian Penal Code in rPspect of an import licence. His appeal against the order of conviction and sentence passed by the trial Junge was summarily dismissed by the High Court. Although the conspiracy was eut<'recl into at Calcutta the offences of using the forged docume~ts as genuine were committed at Madras. It was contended on behalf of the appellant in this Conrt that the said offences having been comnci t-ted outside the territorial jurisdiction of the Calcutta Courts, they had no jurisdiction to try the offences under s. 471 read with s. 466 of the Indian Penal Code, even !bough committed in pursuance of the conspiracy and in course of the same tran-saction.

Held, that the desirability of trying all the overt acts con1rnitted in pursuance of 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 jurisdictio~. t'? try the offence of criminal conspiracy hos also the 1ur1st11ct1on to try all the overt acts <>1mmitted in pursuance of it even though outsi<le its territorial jurisdiction.

]iban Banerjee v. State, A.LR. '959 Cal. 500, overruled.

Pritam Singh v, The State of Punjab, A.LR. 1956 S.C. 415, referred to.

Babula! Choukhani v. The King Emperor, (1938) LR. 60 I.A. 158, relied on. '

It is evident from the relevant provisions of the Code of Criminal Procedure that of the two types of jurisdiction of criminal court, namely, (r) that of trying particular offence and (2) its territorial jurisdiction, while the former go1•s to the root of the matter and any transgrnssion of it renders the ent1r.c trial void, the latte1 is not of peremptory character and !ca''" the place of trial open.

Assistant Sessions ]ttdge, North Arcot v. Ramaswami Asari, (1914) I.LR. 38 Mad. 779, referred to.

Although ss. 235 and 239(a) of the Code of Criminal Proce-dure do not expressly so provide, there can be no doubt that

April I9.

Purtultoll••dcas Doi-'" v. 51111• of W111 Blftt•l

they con template the joint trial of offences and perso11s mention-ed therein in court whether or not all the offences to be tried ~y ~tare r.om.mitted within its territorial jurisdiction, the only hm1tatton bemg that the offences must have been committed in the course of the same transaction. Section 177 ol the Code, there fore, does not control s. 239.

No presumption as to the approval of the LegiJJature of particular construction of statute can be draW11 from the absence of any statutory modification of its provisiona unless there is consistent series of decisions in favour of that construction.

Case-law discussed.

CRIMINAL API'BLLATE J~ISDICTION: Appeal No. 51 of 1959.

Criminal·

Appeal by specie.I, leave from the judgment and order dated May 16, 1958, of the Caioutt. High Court in Criminal Appeal No. 2 of 1958. · . · . ·

A. S. R. Chari, K. C. Jain and B. P . .Maliefhwart, for

the e.ppella.nt.

N. C. Chat~rjee, II. R. Khaltna and D. Gupta, for

respondent.

1961. Aptil 19. The Judgment of the Court waa delivered by

RAGHUBAB DAYAL, J.-Thia appeal, by special

leave, is from the order of the Calcutta. High Court dated ~fay 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 s. 120-B read with s. 471, Indian Pena.I Code, and on two counts nnder s. 471 read with 8[, ][466, Indian Pena.I Code, with respect to two docu-]ments. L. N. Ka.lya.na.m, who was also tried e.t the same trial and convicted of the offcnooe under s. 120-B rt>e.d with R. 4,71, Indian Pena.I Code, two counts under 8[, ][466, ][Indian Penal Code, and of the offence under ]8 [• ][109, read with ][s. ][471, ][Indian ][Pen&l ][Code, did ][not ]appeal age.inst his conviction.

The brief fa.eta of the prosecution ce.se &re that the appell:J.nt Purushotte.mda.s Da.h11ia. was one of the part-ners of the firm known e.s Laxmine.ra.ye.n Gourishe.n-ka.r whioh had its head office e.t Gaye. &nd .branch e.t Calcutt&. The Calcutta. bra.neh was looaf.fid a.t 19,

2 S.C.R. SUPREME COURT REPORTS

Sambhu Mallick Lane. On April 26, 1952, the appel-lant applied for li?lek.nce for impoMrtingrnpees one crore worth of art s1 yarn. 0n ay , 21 52, 9t 1 ie Joint Chief Controller of Imports, Calcutta, issued 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 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 appel-lant. The letter communicating the dismissal of the appeal and the return of the licence was issued from th.e office of the Joint Chief Controller of Imports on September 26, 1952.

Puntshottamdas Dalmia v. State of West Bmgal ~.~:;bj~

The letter dated September 29, 1952, from the ofuce of the Chief Controller of Imports, New Delhi, in-formed 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 Octo-. her 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, long letter expressing his grie-vance at the action of the Joint Chief Controller of Im-ports and Exports, Calcutta, and requesting for sym-pathetic decision. The Chief Controller of Imports and Exports, by his letter dated April 20, 1953, informed the

Purushottamdas Dalmia v. State of West Bengal Raghubar Dayal ].

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 men-tioned its number as '16' instead of the correct num-ber '19'. In other respects the addreBs 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 con-taining 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 at-tempt was made to clear them at Madras. The clear-ing office at Madras suspected the genuineness of the confirmation and re-validating endorsements and find-ing the suspicion confirmed, made over the matter to the Police. As result of the investigation and preli-minary enquiry, the appellant and Kalyanam were committed to the High Court for trial.

Eight charges were framed. The first charge relat-ed 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 criminal conspiracy to commit an offence punishable with rigorous im-prisonment for two years or upwards, to wit, an

2 S.C.R. SUPREME COURT REPORTS

offence of forgery by certificate or endorsement of confirmation and an endorsement of validation of . l' the Import Trade ontro 1 Lwence [, ]emg ICence no. 331913/48 (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 and/or the offence of fraudulently or dishonestly using the aforesaid licence containing the aforesaid forged certificates and endorsements as to the confirmation and validation thereof know-ing 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 Section 120-B read withs. 466 and/or section 471 read withs. 466 of the Indian Penal Code within the cognizance of this Court."

Charges Nos. 2, 3 and 4 were with respect to the false andorsements on the copy of the licence Ext. 5. The second charg? was under s. 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 docu-ment as genuine. Charges 5, 6 and 7 related to corres-ponding matters with respect to the licence copy Ext. 6. The eighth charge was against Kalyanam alone and was for his abetting the appellant in his committipg the offence of fraudulently and dishonestly using as genuine the Customs Copy of the said licence, Ext. 6.The jury returned verdict of 'not guilty' with respect to charges Nos. 3 and 6 and also with respect to the charge of conspiracy under s. 120-B read with s. 466, Indian Penal Code. The jury returned verdict of 'guilty' against the appellant on the charge of conspiracy under s. 120-B read withs. 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:

r96r -Purushottamdas Dalmia v. State of West Bengal i;;;:zb;.

Purushottanidas Dalmia v. State of rv est Bengal Raghubar Dayal].

(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 s. 471 read withs. 466, Indian Penal Code.

(ii) Alternative conspiracies could not be charged as they must be the result of different agreements bet-ween the conspirators.

(iii) The learned Judge misdirected the jury in put-

ting 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 forgery; (b) even if the proper officer of the Department had signed the re-validation, it would still be forgery when it was ante.dated; (c) the letter of the Chief Controller of Imports and Exports dated April 20, 1953, though wrongly address-ed, 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 s. 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 conte,nded for the appellant, in view of s. 177 of the Code of Crimi-nal 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 v. 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 com-mitted in pursuance of it, is obvious. To establish the offence of criminal conspiracy, evidence of the (1) A.l.R. 1959 Cal. 500.

overt acts must be given by the prosecution. Such evidence will be necessarily tested by cross-examina-tion on behalf of the accused. The Court will have to come to 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" find-ing of 'guilty' or 'not guilty' with respect to the accused said to haye 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 commis-sion of those overt acts or that both the prosecution and the accused af'l put to unnecessary trouble inasmuch as the prosecution will have to produce the same evidence second time and the accused will have to test the credibility of that evidence second time. The time of another Court will be again spent second time in determining the same question. There would be the risk of the second Court coming to 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 different con-clusion in view of what has been said by this Court in Pritam Singh v. The State of Punjab ([1]):

"The acquittal of Pritam Singh Lohara of that charge was tantamount to finding that the pro-secution had failed to establish the possession of the revolver Ex. P-56 by him. The possession of that revolver was 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 prosecu-tion and having regard to the observations of Lord MacDermott quoted above, could not be proved against Pritam Singh Lohara. in any further pro-ceedings between the Crown and him."

(1) A.LR. 1956 S.C. 415, 422.

Purushottamdas Dal1nia

v. State of H'est Bengal

Raghubar Dayal ].

Purusholtamdas Dallnia v. Stats of West Bengal

ilaghubar Dayal j.

In these circumstances, unless the provisions of the Code of Criminal Procedure admit of no other con-struction 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 pur-suance of that conspiracy. We do not find any com-pelling reasons in support of the view expreRsed by the Calcutta High Court. ·

It is true that the Legislature tren,'ts with impor-tance the jurisdiction of Courts for the trial of offences. Jurisdiction fff Courts is of two kinds. One type of jurisdiction deals with respect to the power of the Courts to try particular kinds of offence8. That is jurisdiction~vhich goes to the root of the matter and if Court not empowered to try particular offence uv<;' try it, the entire trial is void. The-other jurisdic-tion i8 what may be ca!ll)d territorial jurisdiction. Similar importance is· not attached to it. 1'.l;iis.is clear from the provisions of ss. 178, 188, 197(2) and 531, Criminal Procedure Code. Sect.ion 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 wrong sessions division, district, sub-division or other local area, unless it appears t.hat such error bas in fact occasioned failure of justice."The reason for such difference in the result of case being tried by Court not competent to try the offence anc;I by 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 accord-in" to tht1 view the Legislature holds with respect to th~ capability and responsibility of those Courts. The higher the capability and the sense of responsibility, the larger is t·he jurisdiction of those Courts over the various offences. Territorial jurisdiction is provided just as matter of co.qveniencE1, keeping in mind the admini8tmt.ive point o( view with respect to the work of partic1Jlar Court, the convenience of the accused

2 S.C.R. SUPREME COURT REPORTS

who will havo to meet the oha~ge levelled againt him and the convenience of the witnesses who have to appear before the Court. It is therefore that it is pro-vided iri s. 177 that an offence would ordinarily be tried by Court within the local limits of whose jurisdiction it is committed.

It was said in Assistant Sessions J.udge, North Arwt

Y. Ramaswami Asari (1):

"The scheme of chapter XV, sub-chapter (A) in which sections 177 to 189 appear, seems to ine to be intended to enlarge as mnch as· possible the ambit of the sites in w;hich the trial of an offence might bo held and to minimise as .much as possible the inconvenience which would he caused to the pro-secution, by the success of technical plea that the offence was not committed within the local limits of the jurisdiction of the trying_ Conrt."

It is further significant to notice-t-he ,difference in the language of s. 177 and s. 233. Sect.ion 177 simply says that ordinarily every offence would be tried by 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 ss. 179 to 185 and 188 or in cases specially provided by any other provision of law. It leaves ti}e place of trial open. Its provisions are not peremptory. Them is no reasoµ why tho provisions of ss. 233 to 239 may not also provide exceptions. to s. 177, if thoy do per-mit the trial of particular offence along with others in one Court. On the other hand, s. 233, dealing with the trial of offences, reads: ·

"For every distinct offence of which any person is accused there shall be separate charge, and every such charge shall be tried separately, except in the cases mentioned in ss. 234, 235, 236 and 239."

The language is very peremptory. There is clear direction that there should be separate charge for every distinct offence and that any deviation from such course would b!i~-only in cases mentioned in ss. 234, 235, 236 and 239. ,

It is true that ,.i.~~§ not stated in express terms

(I) ('9•-t) i.L R. 3~· 779, 782.

Purusholla1ndas

Dolinia

v. State of West Ee;lgal

Ilaghubar Dayal j.

Purushotta,ndas l>aln1ia v. Slate cf West H111gal

Ra.r:liufiar Da1·al .].

llO SUPREME COURT REPORTS

either in s. 235 or s. 239, that their pro'l'isions wouk justify the joint trial of offences or of persons men-tioned th<'rein in Court irrespective of the fact whe-ther the offences t-0 be tried were committed within the jurisdiction of that particular Court or not. But such, in our opinion, should be the interpretation of the provi,;ions in those two sections. The sections do not expressly state that all such offences which can be <"ha.rged and tried toguther or for which various per-sons can ho charged and tried together must ta.ke place within the jurisdiction of the Court trying them. The provisions a.ro in genera.I terms. Sub-sections (1) to (3) of H. 235 provide for the offences being charged with and tried e.t one trial a.nd therefore provide for the trial of those offences at one trial in any Court which has jurisdiction (Jver •~ny of the offences com-mitted in the coursr of the same transaction. The illustrations to s. 235 a.lso make no reference to the places where t.be offences wern committed. In parti-cular, illustration (r) can apply even when the olien-ces refPrr1'd to therein were committe1! at µla.cps with-in th" territorial jurisdiction of diff~n'nt. Courb. Simi-larly, s. 239 provides for the various persons being charged and tried tugetht>r for the ~ame offoncc rom-rn itt{'d in the course of the same 11'.lnsn.ction a.re accuse1! of differ1•nt ofT1•nc!.'s committed in the course of the su.mo tranA:tction. Such offenceR or persons would not be tried together if some of the offences a.re committed by some of them outside the jurisdiction of the Court which can try the other offences, if the contention for the appellant be a.ccepte<l an<l tha.t would .Ut1ount to providing, by construction. an excep-tion for t hesc sections.

As ss. 235 and 239 of the Code arl• enabling sec-

tions, thP Legislature, rightly, did not use the expres-sion which would h.we made it incumbent on the Court to try, a. person of the various offences at one trial or to t.ry various persons for the different offences committed in the courHc of the same transaction to-gether. The omission to make such peremptory provision does not nC'cessarily indicate the intention of the legislature that the Court having jurisdiction to try certain offences cannot try a.n offence committed

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 ss. 235 and 239, Criminal Procedure Code, by the Calcuttn, High Court in Bisseswar v. Emperor (') or by the Madras High Court in In re; Dani ([2]) and in Sachi-danandam v. Gopala Ayyangar (') can be arrived at when it is found that there had been some cases which expressed the contrary view. The case law having bearing on the question under determination is, how-ever, meagre.

In Gurdit Singh v. Emperor (') the conspiracy to murder 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 appear8 that, rightly or wrongly, an allega-tion has been made that the abetment by conspi-racy or by instigation took place in the Montgo-mery District, ai;id thJJ.t, 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 (') person murdered and B, one after the other, in the same night. The houses of and were divided by street which formed the boundary between two districts. The accused was sent up for trial for the murders of and to the various Courts having jurisdiction to try the offences of the murder of and of the murder of B. The learned Judges said:

"There is further aspect of the case on which we would like to make some observations. These two cases of alleged murder by the same appel-lant 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.I.R. 1924 Cat 1034. (2) A.LR. 1936 Mad. 317.

(3) (1929) LL.R. 52 Mad. 991, 99.. (4) (1917) 13 Cr!. L.J. 514, 517.

(5) A.I.R. 1953 Mad. 372, 373·

1-'ur u.shottamdas Dalmia

v. State of H'esl Bi:ngal

Raghul.iar Dayal,).

Sessions Judge. The street between the houses of Govindan Servai and l\falayappa Konan appears however to have been boundary between the dis. tricts of Tiruchirapalli and Tanjore and one murder was committed in the jurisdiction of the Sessions division of ·Tirnchirapalli and the other in the jurisdiction of the Sessions dfrision 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 s. 234( 1 ), Cr. P. C., and it is indeed obvious that one Court should have doalt with J:ioth these murders."

Pio ushottamdas JJal11iia v. Stale of TVest llengal

RagJiubar Dayal j

The two cases could not be tried by any one of the two Sessi~ns Courts if the provisions of s. 234, Crimi-nal Procedure Code, were- subject to the provisions of ss. 177 l9 188 with respect tO the territorial jurisaic-tion of Criminal Courts.

In 8achidanandam v. GopalaAyyangar (')Odgers,.[.,,.,,~

relying on thfl case reported as Bisseswar v. Empe-ror (') held that unless the a.betmtlnt of an offence took place within its territorial jurisdiction, Court could not avail itself of the provisions of s. 239 to try ·such abctment along with the principal offence. 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 thin!!: that jurisdiction, being the foundation of the charge, is to be imported or understood as present in all the subsequent proce-dure set out in the Code; a~1d if that is so, it clearly must govern s. 239."

The approval of the Legislature of particular

construction put on the provisions of an Act on account of its making no alter\)-tion in those provisions is presumed only when there had b(len c.onsistent series of cases putting certain construction on cer-tain provisions.

(1) (1929)'1.L.R. 52 Mad. 991, 994·

{2) A.I.R. 1924 Cal. 1034.

Lastly, an implied support to the view we are in-clined to take is to be obtained from the observations of the Judicial Committee in Babulal Choukhani v. The King Emperor ([1]):

"Nor is there any limit of number of offences spe-cified in s. 239(d). The one and only limitation there is that the accusation should be of offences 'com-mitted 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 con· spire 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 con-spiracy and the acts done under it. The common concert and agreement which constitute the conspi-racy serve to unify the acts done in pursuance of it."

This indicates that the only limitation on the jurisdic-tion of the court to charge and try together various persons in pursuance of the provisions 01 ,. ' ·1f s. 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 pur-suance of conspiracy is with respect to offences com-mitted 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 cl. (a) of s. 239. We therefore hold that the Cal-cutta Court had jurisdiction to try the appellant of the offences under s. 471 read with s. 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 charge (I) (1938J L.R. 65 l.A. 158, 175, 176,

f'111usl1 ittumdas naimia

C\tat!' of H'est Hengal

l\.:ig/,ubar lJayal J.

Purushottamdas Dalmia v.

Slate of West Bengal

Raghubar Dayal].

114 SUPREME COtJR'.1' REPOR'l'S [1962)

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 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 dis-honestly using the licence containing the forged certi-ficates and endorsements. The expression 'and/or' 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 for-geries in the licences. In other words, the charge was that the appellant and Kalyanam entered into conspiracy to commit offences punishable with rigo-rous 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 agree-ment among themselves to do or cause to be done forgery of the document or whether they merely agreed to use it as genuine document knowing that it was 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 forged document knowing

2 S.C.R. SUPREME COURT REPORTS

that it is forged. So both 'and/or' is mentioned in

the charge, either they agreed to commit forgery or Purusho.,amd•s they agreed to use it knowing it is forged or they Dalmi• agreed to do both, both to commit forgery and use v. it knowing it to be forged document." State of

Dalmi• v. State of West Bengal Raghubar Dayal f.

Such charge is justified by the provisions of s. 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 ap-pears to him to be the effect of certain pieces of evi-dence. But that, in our opinion, has not been in such 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· ma.de by the proper departmental officer and they were ante-dated, for-gery would have been committed. That is the correct proposition of law. The ante-dated document would be 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

Pur11slintlttmdaJ l>almitt v. Slttle of W esl Rengal Ragltubar D•y•I ] .

April i9.

116 SUPRE..'1E COURT REPORTS

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 Xo. 16, ordinary courteRy requires that that shop would have Rent over the letter to thl' neighbouring Shop Xo. 19. The appel-l1int's conduce in not ta.king any action to find out w'ia.t was the result of his rrprcsentation 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 l'ircum-stance8, an expression of opinion t}rn.t. t lie let tor would have reached the appt•llant cirnnot. b,. said to amount to misdirection.

Tho learner! Judge is perfectly justified to ask the jury to take into consideration the probabilities of a. case, whore no definite evidence, in connection with an incidental matter, exists.

We do not consider that the contentions raised do a.mount to misdirections.

In view of the above, we see no force in this appoal a.nd accordingly dismiss it.

Appr.al dismi.ised.

L. N. MUKHERJEE

THE STATE OF MADRAS

(K. SuB!lA RA.o and ltao1n:llAR DAYAL, JJ.)

Criminal Trial- Jurisdiction-Court having jurisdictio>t to tr1: offences cammitted in pursua11ce of conspiracy, •f can try the oJJence of criminal conspiracy-Code of Cmnii:al Proctdure, 1898 (V of 1898), ss. 177, 239-lndian Penal Code, 1860 (Act X LV of 1860). ss. 120-B, 420, 463.

The appellant was committed to the Court of Session at ~iadras for trial under s. 120-B read with s. 420 of the Indian Penal Code and for committing the offence o! forgery in pursu-ance of that conspiracy. The Criminal conspiracy was alleged to have been cvmmitted at Calcutta, while the other offences in