9911796707
TMI Blog1993 (5) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... In furtherance of the conspiracy and in confabulation with V.P. Anand, the appellant, Ajay Aggarwal, a non-resident Indian at Dubai who is running M/s. Sales International, Dubai, agreed to and got credit facility by way of Foreign Letters of Credit Nos.4069-p, 4070-p and 4084-p, issued proforma invoices of the said concern and addresses to PNB through Guru Nanak Industries and New link Enterprises. Ranjit Marwah, the 5th accused, Manager of P.N.B., in-charge of foreign exchange department confabulated with the accused, issued Foreign Letter of Credit in violation of import policy. The Bills of Lading were addressed to PNB at Chandigarh. The cable confirmation of P.N.B. was sent to M/s. Sales International by P.N.B., Chandigarh for confirmation of discrepancy. The appellant had confirmed correctness thereof in the name of V.P. Anand. Placing reliance thereon authority letter was issued by P.N.B., Chandigarh and cables were sent subsequent thereto to remit the amounts to Emirates National Bank Ltd. through Irving Trust Company. V.P. Anand was present on September 16, 1981 at Dubai and at his instance the Emirates National Bank, Dubai informed the P.N.B., Chandigarh that the discrep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia since as per the prosecution case itself that part of the conspiracy and related offences were committed at Dubai, by operation of Section 188 read with the proviso thereto with a non obstinate clause, absence of sanction by the Central Govt. knocks of the bottom of the jurisdiction of the courts in India to take cognizance of or to enquire into or try the accused. He placed strong reliance on T. Fakhrulla Khan and Ors. v. Emperor AIR 1935 Mad. 326, In re M.L Verghese AIR 1947 MAD. 352, Kailash Sharma v. State and K. Satwant Singh v. State of Punjab [1960]2SCR89 . Sri Goswami, the learned senior counsel for the respondents contended that the conspiracy to cheat PNB was hatched at Chandigarh. All the accused committed overt acts in furtherance of the conspiracy at, Chandigarh and, therefore, the sanction of the Central Govt. is not necessary. The High Court had rightly recorded those findings. There is no need to obtain sanction under Section 188 of the Code. 4. The diverse contentions give rise to the primary question whether the sanction of the Central Govt. as required under proviso to Section 188 of the Code is necessary. Section 188 of the Code reads thus: Offence com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inarily be inquired into and tried by a Court within whose local jurisdiction it was committed but exceptions have been engrafted in subsequent sections in the Chapter Section 179 provides venue for trial or enquiry at the place where the act, is done or consequences ensued. So inquiry or trial may be had by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. Section 188 by fiction dealt offences committed by a citizen of India or a foreigner outside India or on high seas or elsewhere or on any ship or aircraft registered in India. Such person was directed to be dealt with, in respect of such offences, as if he had committed at any place within India at which he may be found. But the proviso thereto puts an embargo that notwithstanding anything in any of the preceding sections of this Chapter have been done such offences shall not be inquired into or tried in India except with the previous sanction of the Central Govt. 7. Judicial power of a State extends to the punishment of all offences against the municipal laws of the State by whomsoever committed within the territory. It also has the power to punish all such offences wherever com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common law definition of 'criminal conspiracy' was stated first by Lord Denman in Jones' case (1832 B AD 345) that an indictment for conspiracy must charge a conspiracy to do an unlawful act by unlawful means and was elaborated by Willies, J. on behalf of the Judges while referring the question to the House of Lords in Mulcahy v. Reg (1868) L.R. 3 H.L. 306 and the House of Lords in unanimous decision reiterated in Quinn v. Leathem 1901 AC 495 as under: A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was held that Section 120-B IPC makes the criminal conspiracy as a substantive offence which offence postulates an agreement between two or more persons to do or cause to be done an act by illegal means. If the offence itself is to commit an offence, no further steps are needed to be proved to carry the agreement into effect. In R.K.Dalmia and Anr. v. The Delhi Administration [1963]1SCR253 , it was further held that it is not necessary that each member of a conspiracy must know all the details of the conspiracy. In Shivanarayan laxminarayan and Ors. v. State of Maharashtra and Ors. 1980CriLJ388 , this Court emphasized that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design. 11. The question then is whether conspiracy is a continuing offence. Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement to commit an offence, the agreement does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in pursuance of such an agreement. There must be a meeting of minds in the doing of the illegal act or the doing of a legal act by illegal means. If, in furtherance of the conspiracy, certain persons are induced to do an unlawful act without the knowledge of the conspiracy or the plot they cannot be held to be conspirators, though they may be guilty of an offence pertaining to the specific unlawful act. The offence of conspiracy is complete when two or more conspirators have agreed to do or cause to be done an act which is itself an offence, in which case no overt act need be established. It was contended in that regard that several acts which constitute to make an offence under Section 120-B may be split up in parts and the criminal liability of A.1 must only be judged with regard to the part played by him. He merely agreed to help A.2 to open an account in the Swedish Bank, having the amounts lying to the credit of A.2 with Atvidaberg to that account and to help A.2 by keeping a watch over the account. therefore, it does not amount to a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may have continuation in time is shown by the rule that overt act by one partner may be the act of all without any new agreement specifically directed to that act . In Ford v. U.S. 273 US 593 at 620 to 622, Tuft, CJ, held that conspiracy is a continuing offence. 15. In Director of Public Prosecutions v. Doot and Ors. 1973 A C 807 , the five respondents hatched a plan abroad, i.e. Belgium and Morocco and worked out the details to import cannabis into the United States via England. In pursuance thereof two vans with cannabis concealed in them were shipped from Morocco to Southampton; the other van was traced at Liverpool, from where the vans were to have been shipped to America and the cannabis in it was found. They were charged among other offences with conspiracy to import dangerous drugs. At the trial, the respondents contended that the Courts in England had no jurisdiction of try them on the count of conspiracy since the conspiracy had been entered into abroad. While rejecting the contention, Lord Wilberforce held (at page 817): The present case involves international elements the accused are aliens and the conspiracy was initiated abroad but there can be no question here o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as completed when the conspirators met and agreed to the plot at Catesby. At page 825B it was concluded thus: The conclusion to which I have come after consideration of these authorities and of many others to which the House was referred but to which I do not think it is necessary to refer is that though the offence of conspiracy is complete when the agreement to do unlawful act is made and it is not necessary for the prosecution to do more than prove the making of such an agreement a conspiracy does not end with the making of the agreement. It continues so long as the parties to the agreement intended to carry it out- Lord Pearson at page 827 held that: a conspiracy involved an agreement express or implied, A conspiratorial agreement is not a contract, not legally binding because it is unlawful. But as an agreement it has its three stages, namely, (i) making or formation; (2) performance or implementation; (3) discharge or termination. When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed, and the conspirator can be prosecuted even though no performance had taken place. But the fact that of the offence of conspira ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant was charged with black mail indictable by Section 21 of the Theft Act, 1968, While denying the offence, it was contended that the courts in England were devoid of jurisdiction. Over-ruling the said objection, Lord Diplok at page 562 observed: The State is under a correlative duty to those who owe obedience to its laws to protect their interests and one of the purposes of criminal law is to afford such protection by deterring by threat of punishment conducted by other persons which is calculated to hand to those interests. Comity gives no right to a State to insist that any person may with immunity do physical acts in its own territory which have harmful consequences to persons within the territory of another State. It may be under no obligation in comity to punish those acts itself, but it has no ground from complaint in international law if the State in which the harmful consequences had their effect punishes, when they do enter its territories, persons who did such acts. 18. Prof. Williams, Glanvilie in his article Venue and the Ambit of Criminal Law (1965) L.Q.R. 518 stated thus: Sometimes the problem of determining the place of the crime is assisted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rprise may consist of a continuing act which is done in more places than one or of a series of acts which are done in several places. In such cases, though there is one criminal enterprise, there may be several crimes, and a crime is committed in each place where a complete criminal act is performed although the act may be only a part of the enterprise. It was further elucidated in para 603 that: What constitutes a complete criminal act is determined by the nature of the crime. Thus, as regards continuing acts, in the case of sending by post or otherwise a libelous or threatening letter, or a letter to provoke a breach of the peace, a crime is committed, both where the letter is posted or otherwise sent, and also where it. is received, and the venue may be laid in either place. 22. Archbold in Criminal Pleadings, Evidence and Practice, 42nd edition (1985) Chapter 23, in para 28-32 at p. 2281, Wright on conspiracies and Agreements at pages 73-74, Smith on Crimes at page 239 and Russel on Crime, 12th edition, page 613 stated that conspiracy is a continuing offence and liable to prosecution at the place of making the agreement and also in the country where the acts are commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so accommodate the situation where a well-defined group conspires to commit multiple crimes; so long as all these crimes are the objects of the same agreement or continuous conspiratorial relationship, and the conspiracy continues to subsist though it was entered in the first instance. Take for instance that there persons hatched a conspiracy in country 'A' to kill 'D' in country 'B' with explosive substance. As far as conspiracy is concerned, it is complete in country 'A'. One of them pursuant thereto carried the explosive substance and hands it over to third one in the country 'B' who implants at a place where D' frequents and got exploded with remote control. 'D' may be killed or escape or may diffused. The conspiracy continues till it is executed in country 'B' or frustrated. therefore, it is a continuing act and al! area liable for conspiracy in country 'B' though first two are liable to murder with aid of Section 120-B and the last one is liable under s-302 or 307 IPC, as the case may be. Conspiracy may be considered to be a march under a banner and a person may join or drop out in the march without the nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Govt. to order payment of his claims. In fact, he was paid at Lahore at his own request by means of cheques on the Branch of the Imperial Bank of India at Lahore. The delivery of the property of the Govt. of Burma, namely, the money, was made at Lahore, a place in British India, and we cannot regard, in the circumstances of the present case, the posting of the cheques at Kohlapur either as delivery of property to the appellant at Kohlapur or payment of his claims at Kohlapur. The entire argument founded on the provisions of Section 188 of the Code, therefore, fails. Far from helping the appellant the ratio establishes that if an offence was committed in India the need to obtain sanction under Section 188 is obviated. In Purshottamdas Dalmia v. State of West Bengal 1961CriLJ728 , this Court, when the appellant was charged with offences punishable under Section 120-B, 466 and 477, the appellant contended that offence of conspiracy was entered into at Calcutta the offences of using the forged documents was committed at Madras. therefore, the court at Calcutta had no jurisdiction to try the offence under Section 471 read with Section 466, IPC, even though committed in pursuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. The ratio in Fakhrulla Khan has no application to the facts in this case. Therein the accused were charged for offences under Section 420, 419, 467 and 468 and the offences were committed in native State, Mysore. As a result the courts in British India i.e. Madras province had no jurisdiction to try the offence without prior sanction. Equally in Verghese's case the offences charged under Section 409, IPC had also been taken place outside British India. therefore, it was held that the sanction under Section 188 was necessary. The ratio in Kailash Sharma's case is not good at law. The appeal is accordingly dismissed. R.M. Sahai, J. 27. While agreeing with Brother Ramaswamy, J., I propose to add a few words. Prosecution of the appellant under Section 120B read with Section 420 and 471 of the Indian Penal Code (in brief 'IPC') was assailed for absence of sanction under Section 188 of the Criminal Procedure Code (in brief 'Cr.P.C.'). Two submissions were advanced, one - that even though criminal conspiracy was itself an offence but if another offence was committed in pursuance of it outside India then sanction was necessary; second - an offence is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d outside the country. An offence is defined in the Cr.P.C. to mean an act or omission made punishable by any law for the time being in force. None of the offences for which the appellant has been charged has residence as one of its ingredients. The jurisdiction to inquire or try vests under Section 177 in the Court in whose local jurisdiction the offence is committed. It is thus the commission of offence and not the residence of the accused which is decisive of jurisdiction. When two or more persons agree to do or cause to be done an illegal act or an act which is illegal by illegal means such agreement is designated a criminal conspiracy under Section 120A of the IPC. The ingredients of the offence is agreement and not the residence. Meeting of minds of more than two persons is the primary requirement. Even if it is assumed that the appellant was at Dubai and he entered into an agreement with his counterpart sitting in India to do an illegal act in India the offence of conspiracy came into being when agreement was reached between the two. The two minds met when talks oral or in writing took place in India. therefore, the offence of conspiracy cannot be said to have been committed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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