Mobarik Ali Ahmed v. State of Bombay AIR 1957 SC 857
Kunal Jadoun
S. S. Jain Subodh Law College, Shipra Path, Mansarovar, Jaipur, Rajasthan
This Case Commentary is written by Kunal Jadoun, a Fourth-Year Law Student of S. S. Jain Subodh Law College, Shipra Path, Mansarovar, Jaipur, Rajasthan
Case Details:
Court - Supreme Court of India
Equivalent citation - 1957 AIR 857, 1958 SCR 328.
Bench - B. Jagannadhadas, Syed Jaffer Imam, P. Govinda Menon
Decided on – 06 September 1957
Case Type – Criminal Appellate Petition
Parties:
Petitioner – Mobarik Ali Ahmed
Respondent – The State of Bombay
Introduction:
According to Section 2 of the Indian Penal Code, 1860, everyone, whether they are Indian or not, is accountable for any offence committed within Indian territory that violates the code and is subject to the penalties outlined therein. The meaning of section 2 of the Indian Penal Code provided a basis for elucidating the matter in this landmark ruling on the question of intraterritorial offences. All offences are local, yet the jurisprudence on "extra-territorial jurisdiction" contradicts this fundamental idea. The concerned government has the legal right to use its authority outside of its borders by the ETJ. The landmark case Mobarik Ali Ahmed v. State of Bombay resolved the relevant legal issues.
When determining the foreign national's liability, the Apex Court noted that the argument that the accused was not present when the crime was committed does not apply to acts committed within India from outside the country.
Facts of the Case:
The complainant, Mr. Louis Anton Cornea, was a businessman residing in Goa and also the director of Colonial Limitada, a trading company that was engaged in import and export business. The complainant was concerned about the import of rice because there was scarcity in Goa at the time and thus, he contacted Mr. Jassawla, a commission agent for Universal Supply Corporation. The appellant, Mr. Mobarik Ali Ahmed, was a businessman who operated under the names Ifthiar Ahmed & Co. and Atlas Industrial and Trading Corporation while he lived and worked in Karachi, Pakistan.
Mr. Jasawalla got in contact with the appellant. After the formation of a contract for the sale and purchase of 1200 tonnes (later 2000 tonnes) of rice at the price of 51 pounds per tonne, Mr. Jasawalla and the complainant exchanged a series of telegrams, phone conversations, and letters.[1]. An advance payment of 25% was paid to Mr. Jasawalla and the rice was to be shipped from Karachi to Goa.
Following the appellant’s guarantee of full arrangements, 50% of the money was made in advance once the quantity was increased to 2000 tons. The complainant asked for his money back after the delivery was delayed, but the appellant declined to receive any cash. To persuade the complainant to pay the greater sum even though the consignment was still excessive to do the job, the appellant used deception and foul play. Under such an impression, the complainant paid the total amount of Rs. 8,1000, Rs. 2,30,000, and Rs. 2,36,900, respectively, but the appellant did not initialize the shipping consignment. The appellant made comments regarding the disclosure of the letter of credit and the non-acceptance of funds by a guaranteed bank of Pakistan.
The unethical actions of the appellant alarmed the complainant, who expressed worries in one of the letters and requested the appellant to initialize the shipping consignment as soon as possible and reimburse the paid advance if the complainant failed to comply. The complainant waited for months to receive the consignment but failed to receive it from the appellant neither he was repaid the advance which resulted in the termination of the contract between them. All the telegraphic communications were incorrect and misrepresented by the appellant and the amount was also not returned to the complainant.
The appellant was found guilty by the Presidency Magistrate under Section 420 read with Section 34 of the Indian Penal Code, 1860 on three counts of cheating namely the first amount of 81,000, the second amount of 2,30,000, and the third amount of 2,36,900. As a result, he was sentenced to two years of rigorous imprisonment and a fine of Rs. 1000 for the first amount, and similarly for 22 months of rigorous imprisonment and a fine of Rs. 1000 for the second amount, and two months imprisonment for the third amount.
After this, the appellant approached the Hon’ble Supreme Court with the special leave petition because his conviction could not be carried forward because he was not present in India at the time of the commission of the offence.
Issues raised in the Case:
· Whether an Indian court can try the appellant, a national of Pakistan who was conducting business in Karachi but wasn't in India before or following the offence?
· Whether the letters and telegrams that were exchanged be allowed to be admitted into evidence or not?
· Whether the English Extradition Act, 1870's Section 3(2) convictions against the appellant are upheld or not?
· Whether the appellant's conviction upheld by section 34 and section 420 of the Indian Penal Code, 1860, or not?
· Whether a foreign nationalist who is brought up through Extradition Procedures for any pending trial and correspondingly can be tried with another alleged offense?
· Whether sections 420 and 34 of IPC hold a reliable charge against the appellant where there are 3 more Co-accused/s who were present at the place of offense in the alleged case?
Judgment of the Case:
When the appellant approached the Supreme Court, the court determined that the telegrams and letters were genuine, making them acceptable in court and regarded as significant pieces of direct evidence. Articles 45 and 47 of the Indian Evidence Act were used in support of this conclusion. Three witnesses provided testimony that was taken into consideration: Sequeria, an ex-employee of the appellant, Mr. Jasawalla, the mediator, and the complainant.
Drawing from the case of H. N. Rishbud v. The State of Delhi[2], it was noted that as the appellant had turned himself in, section 3(2) of the English Extradition Act, 1870 was null and void. The court stressed that any foreign national who commits an offence in India is subject to unlimited punishment under this section of the Indian Penal Code since criminal jurisdiction is based on the crime itself, not the nationality of the perpetrator.
The appellant's council had relied on the case of Shreekantiah Munipalli v. The State of Bombay.[3], which the court further stated had an impact on the current case based on the facts.
The appeal was denied, and it was decided to find appellant Mobarik Ali Ahmed guilty by sections 34 and 420 of the IPC after taking into account the arguments, the evidence, and the facts that were brought before the court.
Regarding the issue related to the physical presence of the appellant, the Supreme Court declared that the appellant's physical presence did not invalidate or prevent him from being tried in a criminal proceeding.[4]. Section 2 of the Indian Penal Code states that anyone who violates its provisions, whether they are Indian or not, will be held accountable. This case falls under the purview of Sections 3 and 4, which deal with extraterritorial jurisdiction and extension, respectively.
Moreover, the Supreme Court held that the appellant's attorney used an aphorism in his argument, which the court deemed inappropriate in this particular case. It is evident from the evidence that the appellant was the one who started the main offence, and this conviction under section 420/34 of the IPC supports the actual findings.
Conclusion: Understanding of the case
Even though the appellant was not visibly present in India during the commission of the crime, his conviction was upheld by the Indian Penal Code because Bombay was the scene of all the events that make up the cheating offence under Section 420 of the Indian Penal Code.
The Court declared that he was liable "in absentia" and that anyone who violates the Penal Code's requirements, whether they are Indian or not, will be held accountable under Section 2 of the Indian Penal Code. Furthermore, the court used Sections 3 and 4 of the Indian Penal Code, which grant extraterritorial jurisdiction and code extension, respectively, as justifications for the accused's arrest and extraction.
In light of the facts, the Supreme Court dismissed the appellant's criminal appeal and found him guilty of crimes punishable by up to three years and ten months in jail. This decision was made in the interest of justice and the law, as the court emphasized intraterritorial jurisdiction and offences. The court also made it very clear that, even if the offender is a foreign nationalist, he will still be held accountable for all acts and offenses by the Indian Penal Code.
References:
· Nirnesh Rajendra Naidu, Mobarik Ali Ahmed vs. The State of Bombay, https://lawtimesjournal.in.
· Prapti Kothari, “Extraterritorial Applicability of Indian Penal Code”,https://lexforti.com/legal-news/.
[1]Prapti Kothari, Extraterritorial Applicability of Indian Penal Code (2021), Lexforti, https://lexforti.com/legal-news/, accessed 17 September 2024.
[2]H.N Rishbud v. The State of Delhi (1955) 1 S.C R. 1150, 1163.
[3]Shreekanitah Ramayya Munipalli v. The State of Bombay (1955) 1 S.C.R. 177, 1188.
[4]Nirnesh Rajendra Naidu, Mobarik Ali Ahmed vs. The State of Bombay (2020), Lawtimesjournal.in, https://lawtimesjournal.in., accessed 18 September 2024.