http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 20

PETITIONER:

AJAY AGARWAL

Vs.

RESPONDENT:

UNION OF INDIA AND ORS

DATE OF JUDGMENT05/05/1993

BENCH:

RAMASWAMY, K.

BENCH:

RAMASWAMY, K.

SAHAI, R.M. (J)

CITATION:

1993 AIR 1637 1993 SCR (3) 543

1993 SCC (3) 609 JT 1993 (3) 203

1993 SCALE (2)757

ACT:

Penal Code, 1860-Sections 120A, 12OB-'Conspiracy'-'Criminal

Conspiracy'-Definition-Ingredients-Whether conspiracy-

punishable as a substantive offence and whether continuing

offence-Offences in pursuant to conspiracy whether

separately, punishable.

Code of Criminal Procedure 1973-Section 188-When applicable-

Conspiracy hatched at Chandigarh-Part of conspiracy at

Dubai-Overt acts in furtherance of such conspiracy Sanction

not necessary

Code of Criminal Procedure 1973-Section 188, Proviso-

Construction-Requirements under.

Code of Criminal Procedure 1973-Section 188, read with

Section, 4 IPC-Offence by Indian Citizen outside India-

Effect of.

Penal Code, 1860-Section 120A, 120B, 468, 471-Charged under-

Conspiracy at Chandigarh-Certain overt acts in furtherance

of conspiracy done at Dubai-Sanction under Section 188, Cr.

P.C. not necessary-Jurisdiction of Chandigarh Court-Scope

of.

Penal Code, 1860-Section 120A, 120B, 468, 471-Charged under-

Conspiracy at Chandigarh-Certain Overt acts in furtherance

of conspiracy done at Dubai by a NRI-Effect of

HEADNOTE:

The prosecution case was that the appellant, a non-resident

Indian at Dubai, hatched a conspiracy along with four others

to cheat the Bank at Chandigarh. in furtherance of the

conspiracy, the appellant got credit facility by way of

Foreign Letters of Credit and issued proforma invoices of

his concern and addressed to the Bank through the

establishments of other accused. The Manager of the Bank,

another accused, in confabulation with

544

the appellant and other accused, being in-charge of foreign

exchange department, issued Foreign letter of Credit in

violation of import policy. The Bills of Lading were

addressed to the Bank. The cable confirmation of the Bank

was sent to appellant's concern at Dubai for confirmation of

discrepancy. The appellant confirmed correctness thereof.

Placing reliance thereon, authority letter was issued by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 20

Bank and cables were sent subsequent thereto to remit the

amount-. to the Dubai Bank through one Irving Trust Company,

At the instance of accused Anand, The Dubai Bank informed

the Bankat Chandigarh that the discrepancy in the document

adaptable to accused Anand and claimed to have inspected the

goods on board in the vessel. On receipt of the information

from the appellant's concern at Dubai, full amount is US

Dollars 4,39,200 was credited against all the three Letters

of Credit on discount basis.

The investigation established that the vessel was a non-

existent one and three Foreign Letters of Credit were

fabricated on the basis of false and forged shipping

documents submitted by the appellant to the Dubai Bank.

Thus the Bank at Chandigarh was cheated of an amount of Rs.

40,30,329.

The accused were charge-sheeted under section read with

sections 420, 468, and 471, IPC.

The Trial Court discharged all the accused of the offenses

on the ground that conspiracy and the acts done in

furtherance thereof had taken place outside India and as no

sanction under section 188, Code of Criminal Procedure 1973

was produced, the prosecution was not maintainable.

The High Court in revision held that the conspiracy took

place at Chandigarh and the overt acts committed In

pursuance of that conspiracy at Dubai constituted offences

under sections 420,467 and 471 IPC., and they were triable

at Chandigarh without previous sanction of the Central Govt.

The High Court setting aside the order of discharge of the

trial Court, directed to continue further proceedings in

accordance with law. That order of the High Court was

challenged under this appeal under Article 136 of the

Constitution.

The appellant contended that he was not a privy to the

conspiracy and the conspiracy did not take place at

Chandigarh; and that even assuming that some of the offences

were committed in India, by operation of section 188 read

with the proviso thereto with a non-obstanti clause, absence

of sanction by the

545

Central Govt. barred the jurisdiction of the Courts in India

to take cognisance of or to enquire into or try the accused.

The respondents submitted that the conspiracy to cheat the

Bank was hatched at Chandigarh; that all the accused

committed over acts in furtherance of the conspiracy at

Chandigarh and therefore, the sanction of the Central Govt.

was not necessary.

Dismissing the appeal, this Court,

HELD: Per K. Ramaswarmy, J.

1.01. 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 committed by its

citizen. The general principle of international law is that

every person be it a citizen or foreigner who is found

within a foreign State is subjected to, and is punishable

by, its law. Otherwise the criminal law could not be

administered according to any civilised system of

jurisprudence. (553F)

1.02. Conspiracy may he considered to be a march under a

banner and a person may join or drop out in the march

without the necessity of the change in the text on the

banner. In the comity of International Law, in these days,

commiting offences on international scale is a common

feature. The offence of conspiracy would be a useful weapon

and there would exist no contact in municipal laws and the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 20

doctrine of autrefois convict or acquit would extend to such

offences. The comity of nations are duty bound to apprehend

the conspirators as soon as they set their feet on the

country territorial limits and nip the offence in the bud.

(564-F-G)

2.01. Section 120-A of the I.P.C. defines 'conspiracy' to

mean that when two or more persons agree to do, or cause to

be done an illegal act, or an act which is not illegal by

illegal means such an agreement is designated as criminal

conspiracy". No agreement except an agreement to commit an

offence shall amount to a criminal conspiracy, unless some

act besides the agreement is done by one or more parties to

such agreement in furtherance thereof. (557-C)

546

2.02. Section 120-B of the I.P.C. prescribes punishment for

criminal conspiracy. It is not necessary that each

conspirator must know all the details of the scheme nor be a

participant at every state. 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. (554-E)

2.03. 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,

independent of the conspiracy. (556-D)

2.04. The agreement does not come to an end with it-.

making, but would endure till it is accomplished or

abandoned or proved abortive. Being a continuing offence,

if any acts or omissions which constitute an offence are

done in India or outside its territory the conspirators

continuing to be parties to the conspiracy and since part of

the acts were done in India, they would obviate the need to

obtain sanction of the Central Govt. All of them need not

he present in India nor continue to remain in India. (556-E)

2.05. An agreement between two or more persons to do an

illegal act or legal acts by illegal means is criminal

conspiracy. If the agreement is not an agreement to commit

an offence, it does not amount to conspiracy unless it is

followed up by an overt act done by one or more persons in

furtherance of the agreement. The offence is complete as

soon as there is meeting of minds and unity of purpose

between the conspirators to de that illegal act or legal act

by illegal means. Conspiracy itself is a substantive

offence and is distinct from the offence to commit which the

conspiracy is entered into. It is undoubted that the

general conspiracy is distinct from number of separate

offences committed while executing the offence of

conspiracy. Each act constitutes separate offence

punishable, independent of the conspiracy. (563-F-G)

"Jones'Case, 1832 B & A-D 345; Mulcahy v. Reg., (1868) L.R.

3 H.L. 306; Quinn v. Leathem, 1901 AC 495 at 528; B.G.

Barsay. v. The State of Bombay, (1962) 2 SCR 229; Yashpal v.

The State of Punjab, [1977] SCR 2433; Mohammed Usman,

Mohamned Hussain Manivar & Anr.v. State of Maharashtra,

[1981] 3SCR 68;Noor

547

Mohammad Yasuf Monin v. State of Maharashtra, [1971] 1 SCR

119; R.K. Dalmia & Anr. v. The Delhi Administration, [1963]

1 SCR 253; Shivanarayan Laxminarayan & Ors. v. State of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 20

Maharashtra & Ors. [1980] 2 SCC 465 and Lennari Schussler &

Anr. v. Director of Enforcement & Anr., 1197012SCR 760,

referred to.

2.06. A conspiracy is a continuing offence and continues to

subsist and committed wherever one of the conspirators does

an act or series of facts. So long as it-; performance

continues, it is a continuing offence till it is executed or

rescinded or frustrated by choice or necessity A crime is

complete as soon as the agreement is made, but it is not a

thing of the moment It does not end with the making of the

agreement. It will continue so long as there are two or

more parties to it intending to carry into effect the

design. Its continuance is a threat to the society against

which it was aimed at and would be dealt with as soon as

that jurisdiction can properly claim the power to do so.

The conspiracy designed or agreed abroad will have the same

effect as in India,. when part of the acts, pursuant to the

agreement are agreed to be finalised or done, attempted or

even frustrated and vice versa. (564-H, 565-A)

Abdul Kader v. State. AIR 1964 Bombay 133; U.S. v. Kissal,

218 US 601; Ford v. U.S., 273 US 593 at 620 to 622; Director

of Public Prosecutions v. Doot and Ors., (1973) Appeal Cases

807 (H.L); Treacy v. Director of Public Prosecutions, (1971)

Appeal Cases 537 at 563 (H.L.) and Board of Trade v. Owen.

(1957) Appeal Cases 602, referred to.

Prof. Williams, Glanville: "Vanue and the Ambit of Criminal

Law", [1965] L.Q.R. 518 at 528; Halsbury's Law of England,

third edition Vol. 10. page 327, Para 6O2;

Archobold:Criminal pleadings. Evidence and Practice 42nd

edition, [1985] Chapter 23, In para 28-32 at page 2281;

Writ: Conspiracies and Agreements, at pages 73-74; Smith:

Crimes, at page 239 and Russel; Crime, 12th edition, page

613, referred to.

2.07. Sanction under section 188 is not a condition

precedent to take cognizance of the offence. If need be it

could he obtained before trial begins. Conspiracy was

initially hatcher at Chandigarh and though its-elf is a

completed offence, being continuing offence, even accepting

appellant's case that he was at Dubai and part of conspiracy

and overt acts in furtherance

548

thereof had taken place at Dubai and partly at Chandigar and

in consequence thereof other offences had been ensued.

Since the offences have been committed during the continuing

course of transaction culminates in cheating P.N.B. at

Chandigarh, the need to obtain sanction for various officer

under proviso to s. 188 is obviated. Therefore, there is no

need to obtain sanction from Central Govt. The case may he

different if the offences were committed out side India and

are completed in themselves without conspiracy. (566-D-E)

K. Satwant Singh v. The State of Punjab, [1960] 2 SCR 89; In

Re M. L Verghese, AIR 1947 Mad. 352; T. Fakhulla Khan and

Ors. v. Emperor, AIR 1935 Mad. 326; Kailash Sharma v. State,

1973 Crl. law journal 1021, distinguished.

Purshottamdas Dalmia v. State of Bengal, [1962] 2 SCR 101;

L.N. Mukherjee v. The State of Madras, [1962] 2 SCR 116;

R.K. Dalmia v. Delhi Administration [1963] 1 SCR 253 at 273;

Banwari Lal Jhunjhunwala and Ors v. Union of India and Anr.,

[1963] Supp. 2 SCR 338, referred to.

Per R.M. Sahai, J. (Concurring)

1.1. Language of the section 188, Code of Criminal Procedure

is plain and simple. It operates where an offence is

committed by a citizen of India outside the country.

Requirements are, therefore, one--commission of an offence;

second-by an Indian citizen; and third-that it should have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 20

been committed outside the country. (567-D)

1.2. Substantive law of extra-territory in respect of

criminal offences is provided for by Section 4 of the IPC

and the procedure to inquire and try it is contained in

Section 1 88 Cr. P.C. Effect of these sections is that an

offence committed by an Indian citizen outside the country

is deemed to have been committed in India. (567-E)

1.3. Since the proviso to Section 188, Cr.P.C. begin-. with

a non obstinate clause its observance is mandatory. But it

would come into play only if the principal clause is

applicable, namely, it is established that an offence as

defined in dause 'n'of Section 2 of the Cr.P.C. has been

committed and it has been committed outside the country.

(567-G)

549

1.4. What has to be examined at this stage is if the claim

of the appellant that the offence under Section 120B read

with Section 420 and Section 471 of the IPC were committed

outside the country. An offence is deemed 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. (567-H, 568-A)

1.5. 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 sifting 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 outside the country. (568-B-C)

1.6. If a foreign national is amenable to jurisdiction under

Section 179 of the Cr.P.C. a NRI cannot claim that the

offence shall be deemed to have been committed outside the

country merely because he was not physically present (568-F)

Mobarik Ali Ahmed v. The State of Bombay, AIR 1957 SC 857,

referred to.

1.7. An offence is committed when all the ingredients are

satisfied. The section having used the word 'offence' it

cannot be understood as part of the offence. Section 179

Cr.P.C. empowers a court to try an offence either at a place

where the offence is committed or the consequences ensue.

On the allegations in the complaint the act or omissions

were committed in India. In any case the consequence of

conspiracy, cheating and forging having taken place at

Chandigarh the offence was not committed outside the country

therefore the provisions of Sec. 188 Cr. P.C. were not

attracted. (569-B)

550

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No'400 of

1993.

From the Judgment land order dated 3.6. 1992 of the Punjab

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 20

and Haryana High Court in Criminal Revision No. 443 of 1990.

P. Chadambaram, Mukul Rohtagi, Ms. Bina Gupta and Ms. Monika

Mohil for the Appellants.

N.N. Goswamy, Y.D. Mahajan and N.D. Garg for the Respondent.

The Judgments of the Court were delivered by

K. RAMASWAMYJ: Special leave granted.

The appellant, accused No. 2 in p.Ch. (CBI) No. 40/2, dated

February 18, 1985, F.I.R. No. RC No. 2 to 4/1983 dated March

4,1983 and P.S. SPE/CBI/CTU (E) I/New Delhi, Dist. Delhi

and four other namely, V.P. Anand, Baldev Raj Sharma, Bansi

La] and Ranjit KumarMarwah are accused in the said case. It

is the prosecution case that the accused hatched a

conspiracy at Chandigarh to cheat Punjab National Bank for

short'PNB '. In furtherance thereof V.P. Anand floated three

New Link Enterprises and M/s. Moonlight Industries in the

name of Baldev Raj Sharms, his employee and M/s. Guru Nanak

Industries in the name of Bansi Lal, yet another employee.

He opened current accounts in their respective names in the

P.N.B. at Chandigarh. 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 Emirats National

Bank, Dubai informed the

551

P.N.B., Chandigarh that the discrepancy in the document

adeptable to V.P. Anand and claimed to have inspected the

goods on board in vessel, M.V. Atefeh. On receipt of the

information from the Sales International, Dubai, full amount

in US Dollars 4, 39,200 was credited against all the three

Letters of Credit on discount basis. During investigation

it was found that Vessel M.V. Atefeh was a nonexistent one

and three Foreicn Letters of Credit were fabricated on the

basis of false and forged shipping documents submitted by

the appellant, Ajay Aggarwal to the Emirates National Bank,

Dubai. Thus the P.N. B. was cheated of an amount of Rs.

40,30,329. Accordingly charge sheet was laid against the

appellant. and others for offences punishable under sections

120B read with Sections 420 (Cheating), 468 (Forgery) and

471 using as genuine (Forged documents), I.P.C. The Chief

Judicial Magistrate, Chandigarh by his order dated January

11, 1990 discharged all, the accused of the offences on the

ground that conspiracy and the acts done in furtherance

thereof had taken place outside India and, therefore the

sanction under section 188 Criminal Procedure Code, 1973 for

short the 'Code' is mandatory. Since no such sanction was

produced the prosecution is not maintainable. On revision,

the High Court of Punjab and Haryana in Criminal Revision

No. 443 of 1990 by order dated June 3, 1992 held, that the

conspiracy had taken place at Chandigarh. The overt acts

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 20

committed in pursuance of that conspiracy at Dubai

constituted offences under sections 420, 467 and 471,

I.P.C., are all triable at Chandigarh without previous

sanction of the central Govt. The order of discharge,

therefore, was set aside and the appellant and other accused

were directed to be present through their counsel in person

in the Trial Court on July 17,1992 to enable the court to

take further proceedings in accordance with law. This

appeal has been filed by the appellant alone under Art. 136

of the constitution.

Sri Chidambaram, learned Senior counsel contended that the

appellant was not a privy to the conspiracy. He was an

N.I.R. businessman at Dubai. He never visited Chandigarh.

Even assuming for the sake of argument that conspiracy had

taken place and all act committed in furtherance thereof

were also at Dubai. The transaction through, bank is only

bank to bank transaction. Even assuming that some of the

offences were committed in India 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-

obstanti clause, absence of sanction by the Central Govt.

knocks of the bottom of the jurisdiction of the courts in

India to take cognisance of or to enquire into of try the

accused. He placed strong reliance on 1. Fakhrulla khan and

Ors. v. Emperor AIR 1935 Mad. 326, In re M.L. Verghese AIR

1947 MAD. 352, kailash Sharma v. State [1973] Crl. Law

Journal 1021 and K. Satwant Singh v. State of Punjab [1960]

2 SCR 89. Sri Goswami, the learned senior counsel for the

respondents contended that the conspiracy to cheat. PNB was

hatched at Chandigarh. All the accused committed

552

overt acts in furtherance. All the accused committed overt

acts in furtherance on 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 s. 188

of the Code.

The diverse contentions give rise to the primary question

whether the sanction of the Central Govt. as required under

proviso to s. 188 of the Code is necessary. Section 188 of

the Code reads thus

"Offence committed outside India-when an

offence is committed outside India -

(a) by a citizen of India, whether on the high

seas or elsewhere; or

(b) by a person, not being such citizen, on

any ship or aircraft registered in India, he

may be dealt with in respect of such offence

asif it had been committed at any place within

India at which he may be found:

Provided that, notwithstanding anything in any

of the preceding sections of this Chapter, no

such offence shall be inquired into or tried

in India except. with the previous sanction of

the Central Government".

Section 3, IPC prescribes punishment of offences committed

beyond, but which by law may be tried with, India, It

provided that any person liable, by any Indian law, to be

tried for an offence committed beyond India shall be dealt

with according to the provisions of this Code for any act

committed beyond India in the same manner as if such act had

been committed within India. Section 4 extends its

territorial operation postulating that IPC shall apply to

any offence committed by-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 20

(1) any citizen of India in any place without any beyond

India;

(2) any person on any ship or aircraft registered in India

wherever it may be.

Explanation-in this section the word offence' includes

every act committed outside India which, if committed in

India, would be punishable under this Code..

553

Illustration-A, who is a citizen of India, commits a Murder

in Uganda. He can be tried and convicted of murder in any

place in India in which he may be found.

The Code of Criminal Procedure extends to whole of India

except the State of Jammu & Kashmir and except chapters 8,

10 and 11, the other provisions of the Code shall not apply

to the State of Nagaland and to the tribal area. However,

the State Govt. has been empowered, by a notification, to

apply all other provisions of the Code or any of them to the

whole or part of the State of Nagaland and such other tribal

areas, with supplemental, incidental or consequential

modifications, as may be specified in the notification.

Therefore, the Code also has territorial operation. The

Code is to consolidate and amend the law relating to

criminal procedure. Section 188 was suitably amended

pursuant to the recommendation made by the Law Commission.

Chapter VIII deals with jurisdiction of the courts in

inquiries and trials. Section 177 postulates that every

offence shall ordinarily 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

conumitted 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 be had

committed at any place within India at which he may be

found. But the proviso thereto puts and 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.

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 committed by its

citizen. The general principle of international law is that

every person be it a citizen or foreigner who is found

within a foreign State is subjected to, and is punishable

by, its law. Otherwise the criminal law could not be

administered according to any civilised system of

jurisprudence. Sections 177 to 186 deal with the venue or

the place of the enquiry or trial of crimes. Section 177

reiterates the well-established common law rule that the

proper and ordinary situs for the trial of a crime is the

area of jurisdiction in which the acts occurred and are

alleged to constitute the crime. But this rule is subject

to several well-recognised exceptions and some of those

exceptions have been engrafted in subsequent sections in the

chapter of the Code.

554

Therefore, the provisions in Chapter VIII are elastic and

not peremptory. In consequence there- with Sections 218 to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 20

223 of the code would also deal with exceptions engrafted in

the Code. Therefore, they do permit enquiry or trial of a

particular offence along with other offences at a common

trial in one court so that the court having jurisdiction to

try an offence gets jurisdiction to try other offence

committed or consequences thereof has ensued. The procedure

is hand maid to substantive justice, namely, to bring the

offenders to justice to meet out punishment under IPC or

special law as the case may be, in accordance with the

procedure prescribed under the Code or special procedure

under that Act constituting the offence.

The question is whether prior sanction of the Central Govt.

Is necessary for the offence of 'conspiracy under proviso to

s. 188 of the Code to take cognizance of an offence

punishable under s. 120-B etc. I.P.C. or to proceed with

trial. In Chapter VA, conspiracy was brought on statute by

the Amendment Act, 1913 (8 of 1913). Section 120-A of the

I.P.C. defines 'conspiracy' to mean that when two or more

persons agree to do, or cause to be done an ilegal act, or

an act which is not illegal by illegal means such an

agreement is designated as "criminal conspiracy". No

agreement except an agreement to commit an offence shall

amount to a criminal conspiracy, unless some act besides the

agreement is done by one or more parties to such agreement

in furtherance thereof. Section 120-B of the I.P.C.

prescribes punishment for criminal conspiracy. It is not

necessary that each conspirator must know all the details or

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 & A D 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 at 528) as under:

A conspiracy consists not merely in the

intention of two or more, but in the

agreement. of two or more to do ,in unlawful

act, or to do a lawful act by unlawful means.

So long as such a design rests in intention

only it is not indictable, When two agree to

carry it into

555

effect, the very plot is an act in itself, and

the act of each of the parties, promise

against promise, actus contra actum, capable

of being enforced, if lawful, punishable of

for a criminal object or for the use of

criminal means".

This Court in B. G. Barsay v. The State of Bombay [1962] 2

SCR at 229, held

"The (list of the offence is an agreement to

break the law. The parties to such an

agreement will be guilty of criminal

conspiracy, though the illegal act agreed to

be done has not been done. So too, it is an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 20

ingredient of the offence that all the parties

should agree to do a single illegal act. It

may comprise the commission of a number of

acts. Under section 43 of the Indian Penal

Code, an act would be illegal if fit is an

offence or if it is prohibited by law".

In Yashpal v. State of Punjab [1977] SCR 2433 the rule was

laid as follows

"The very agreement, concert or league is the

ingredient of the offence. It is not

necessary that all the conspirators must know

each and every detail of the conspiracy as

long as they are co-participators in the main

object of the conspiracy. There may be so

many devices and techniques adopted to achieve

the common goal of the conspiracy and there

may be division of performances in the chain

of actions with one object to achieve the real

end of which every collaborator must be aware

and in which each one of them must be

interested. There must be unity of object or

purpose but there may be plurality of means

sometimes even unknown to one another, amongst

the conspirators. In achieving the goal

several offences may be committed by some of

the conspirators even unknown to the others.

The only relevant factor is that all means

adopted and illegal acts done must be and

purported to be in furtherance of the object

of the conspiracy even though there may be

sometimes misfire or over-shooting by some of

the conspirators".

In Mohammed Usman. Mohammad Hussain Manivar & Anr. v. State

of Maharashtra [1981] 3 SCR 68, it was held that for an

offence under section 120B IPC, the prosecution need not

necessarily prove that the conspirators expressly

556

agreed to do or cause to be done the illegal act. the

agreement may be proved by necessary implication. In Noor

Mohammed Yusuf Momin v. State of Maharashtra [1971] 1 SCR

119, it was held that s. 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

& Anr. v. The Delhi Administration It 963] 1 SCR 253, 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 & Ors. State of Mahrashtra & Ors.

[1980] 2 SCC 465, 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.

The question then is whether conspiracy is continuing

offence. Conspiracy to commit crime it self 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, independent of the conspiracy. Yet, in our

considered view, the agreement does not come to an end with

its making, but would endure till it is accomplished or

abandoned or proved abortive. Being a continuing offence,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 20

if any acts or omissions which constitutes-an offence, are

done in India or outside its territory the conspirators

continuing to be parties to the conspiracy and since part of

the acts were done in India, they would obviate the need to

obtain sanction of the Central Govt. all of them need not be

present in India nor continue to remain in India. In

lennart Schussler- & Anr. v. Director of Enforcement & Anr.

[1970] 2 SCR 760, a Constitution Bench of this Court was to

consider the question of conspiracy in the setting of the

facts, stated thus

"A. 2 was the Managing Director of the Rayala

Corporation Ltd. Which manufactures Halda

Typewriters. A. 1 was an Export Manager of

ASSAB. A. 1 and A.2 conspired that A.2 would

purchase material on behalf of his Company

from ASSAB instead of M/s Atvidaberos, which

provided raw material. A.2 was to over-

invoice the value of the goods by 40 per cent

of true value and that he should be paid the

difference of 40 per cent on account of the

aforesaid over-invoicing by crediting it to

A.2's personal account at Stockholm in a

Swedish Bank and requested A. 1 to help him in

opening the account in Swenska Handles Banken,

Sweden and to have further

557

deposits to his personal account from ASSAB.

A. 1 agreed to act as requested by A.2 and A.2

made arrangements with ASSAB to intimate to A.

1 the various amounts credited to A.2's

account and asked A. 1 to keep a watch over

the correctness of the account and' to further

intimate to him the account position from time

to time through unofficial channels and

whenever A. 1 come to India. A. 1 agreed to

comply with this request. This agreement was

entered into between the parties in the year

1963 at Stockholm and again in Madras in the

year 1965. The question was whether Sec. 120-

B of the Indian Penal Code was attracted to

these facts".

Per majority, Jaganmohan Reddy, J. held that the gist of the

offence defined in s. 120-A IPC, which is itself punishable

as a substantive offence is the very agreement between two

or more persons to do or cause to be done an illegal act or

legal act by illegal means, subject, however, to the proviso

that where the agreement is not an agreement to commit an

offence, the agreement does not amount to a 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 s.

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 20

with Atvidaberg to that account and to help A.2 by keeping a

watch over the account. Therefore, it does not amount to a

criminal conspiracy. While negating the argument, this

court held thus:

"It appears to us that this is not a

justifiable contention, because what has to be

seen is whether the agreement between A. 1 and

A.2 is a conspiracy to do or continue to do

something which is illegal and, if it is, it

is immaterial whether the agreement to do any

of the acts in furtherance of the commission

of the offence do not strictly amount to an

offence. the entire agreement must be viewed

as a whole and it has to be ascertained as to

what in fact the conspirators intended to do

or the object they wanted to achieve".

558

Thus, this court, though not in the context of

jurisdictional issue, held that the agreement not illegal at

its inception would become illegal by subsequent conduct and

an agreement to do an illegal act or to do a legal act by

illegal means, must be viewed as a whole and not in

isolation. It was also implied that the agreement shall

continuing- till the object is achieved. The agreement does

not get terminated by merely entering into an agreement but

it continues to subsist till the object is either achieved

or terminated or abandoned.

In Abdul Kader v. State AIR 1964 Bombay 133, a conspiracy

was formed in South Africa by appellants to cheat persons by

dishonestly inducing them to deliver money in the Indian

currency by using forced documents and the acts of cheating

were committed in India. When the accused were charged with

the offence of conspiracy, it was contended that the

conspiracy was entered into and was completed in South

Africa and, therefore, the Indian Courts had no jurisdiction

to try the accused for the offence of conspiracy. The

Division Bench held that though the conspiracy was entered

in a foreign country and was completed as soon as the

agreement was made, yet it was treated to be a continuous

offence and the persons continued to be parties to the

conspiracy when they committed acts in India. Accordingly,

it was held that the Indian Courts had jurisdiction to try

the offence of conspiracy. In U.S. v. Kissal 218 US 601,

Holmes, J. held that conspiracy is a continuous offence and

stated "is a perversion of natural thought and of natural

language to call such continuous co-operation of a cinema to

graphic series of distinct conspiracies rather than to call

it a single one... a conspiracy is a partnership in criminal

purposes. That as such it 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, C.J. held that conspiracy is a continuing offence.

In Director of public Prosecutions v. Door and Ors. 1973

Appeal Cases 807 (H.L.), 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 Liverspool, 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 to try them

on the count of conspiracy since the conspiracy had been

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 20

entered into abroad. While rejecting the contention, Lord

Wilberforce held (at page 817)

"The present case involves international

elements the accused are

559

aliens and the conspiracy was initiated abroad

but there can be no question here of any

breach of any rules of international law if

the) are prosecuted in this country. Under

the objective territorial principle ( use the

terminology of the Harward Research in Inter-

national Law) or the principle of University

(For the prevention of the trade in narcotics

falls within this description)or both, the

courts of this country have a clear right, if

not a duty, to prosecute in accordance with

our municipal law. The position as it is

under the international law it not, however,

determinative of the question whether, unde

r

our municipal law, the acts committed amount

to a crime. That has to be decided on

different principles. If conspiracy to import

drugs were a statutory offence, the question

whether foreign conspiracies were included

would be decided upon the terms of the

statute. Since it is (if at all) a common law

offence, this question must be decided upon

principle and authority- In my opinion, the

key to a decision for or against the offence

charged can be found in an answer to the

question why the common law treats certain

actions as crimes. And one answer must

certainly be because the actions in question

are a threat to the Queen's peace or as we

would now perhaps say, to society. Judged by

this test, there is every reason for, and none

that I can see against, the prosecution. Con-

spiracies are intended to be carried into

effect, and one reason why, in addition to

individual prosecution of each participant,

conspiracy charges are brought is because

criminal action organised and executed, in

concert is more dangerous than an individual

breach of law. Why, then, restrain from

prosecution where the relevant concert was,

initially, formed outside the United

Kingoom?...The truth is that, in the normal

case of a conspiracy carried out, or partly

carried out, in this country, the location of

the formation of the agreement is irrelevant;

the attack upon the laws of this country is

identical wherever the conspirators happened

to commit; the "conspiracy" is a complex

formed indeed, but not separately completed,

at the first meeting of the plotters".

Viscount Dilhorne at page 823 laid the rule

that:

"a conspiracy does not end with the making of

the agreement. It will continue so long as

there are two or more parties to it intending

to carry out the design. It would be highly

unreal to say that the conspiracy to carry out

the Gunpower plot was completed when the

conspirators met and agreed to the plot at

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 20

Catesby".

561

in my view, be considered contrary to the

rules of international comity for the forces

of law and order in England to protect the

Queen's peace by arresting them and putting

them in trial for conspiracy whether they are

British subjects or foreigners and whether or

not conspiracy is a crime under the law of the

country in which the conspiracy was born".

At page 835 it was held that the respondents conspired

together in England notwithstanding the fact that they were

abroad when they entered into the agreement which was the

essence of the conspiracy. That agreement was and remained

a continuing agreement and they continued to conspire until

the offence they were conspiring to commit was in fact

committed. Accordingly, it was held that the conspiracy,

though entered into abroad, was committed in England and the

courts in England and jurisdiction. The ratio emphasizes

that acts done in furtherance of continuing conspiracy

constitute part of the cause of action and performance of it

gives jurisdiction for English Courts to try the accused.

In Trecy v. Director of Public Prosecutions 1971 Appeal

Cases 537 at 563 to ,(H. L.). the facts of the case were

that the appellant therein posted in the Isle of Wright a

letter written by him and addressed to Mrs. X in West

Germany demanding money with menaces. The letter was

received by Mrs. X in West Germany.The appellant was charged

with black mail indictable s. 21 of the Theft Act, 1968.

While denying the offence, it was contended that the courts

in England were devoted of jurisdiction. Over-ruling the

said objection, Lord Diplock 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

determining 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".

Prof. Williams, Glanville in his article "Venue and the

Ambit of Criminal Law [1965] L.Q.R. 518 at 528 stated thus:

562

"Sometimes the problem of determining the

place of the crime is assisted by the doctrine

of the continuing crime. Some crimes are

regarded as being of a continuing nature, and

they may accordingly be prosecuted in any

jurisdiction in which they are partly

committed the partial commission being, in the

eye of the law, a total commission'.

In the context of conspiracy under the caption inchoate

crimes" It was stated:

"The general principle seems to be that

jurisdiction over an inchoate crime appertains

to the State that would have had jurisdiction

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 20

had the crime been consummated".

Commenting upon the ratio laid down in Board of Trade v.

Owen [1957] Appeal Cases 602, he stated at page 534 thus

"The seems to follow owen as logical corollary

that our courts will assume jurisdiction to

punish a conspiracy entered into abroad to

commit a crime here. Although the general

principle is that crime committed abroad do

not become punishable here merely because

their evil effects occur here, there may be an

exception for inchoate crimes aimed against

persons in this country. Since conspiracy is

the widest and vaguest of the inchoate crimes,

it seems clearly that the rule for conspiracy

must apply to more limited crimes of

incitement and attempt also".

At page 535 he further stated that "the rule of inchoate

crimes is therefore an exception from the general principle

of territorial jurisdiction. The crime is wholly committed

in the State A, yet is justiciable also in State B". At

page 535 he elucidated that "certain exceptions are

recognised or suggested". Lord Tucker in own's case (supra)

illustrated that a conspiracy D 2 England to violate the

laws of a foreign country might be justiciable here if the

preferments the conspiracy charged would produce a public

mischief within the State or injure a person here by causing

him damage, abroad". At page 536 be stated that "as another

exception from the rule in Board of, Trade v. Owen (supra it

seems from the earlier decision that a conspiracy entered

into here will be punishable if the conspirators contem-

plates that the illegality may be performed either within

British jurisdiction or abroad even though, in the event,

the illegality is performed abroad". His statement of law

now receives acceptance by House of Lords in Doot's case.

563

In Halsbury's Law of England, third edition, vol. 10, page

327, para 602, while dealing with continuing offence it was

stated as under:

"A criminal enterprise may consist of

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 libellous 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.

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 committed.

Thus, an agreement between two or more persons to do an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 20

illegal act or legal acts by illegal means is criminal

conspiracy. If the agreement is not an agreement to commit

an offence, it does not amount to conspiracy unless it is

followed up by an overt act done by one or more persons in

furtherance of the agreement. The offence is complete as

soon as there is meeting of minds and unity of purpose

between the conspirators to do that illegal act or legal act

by illegal means. Conspiracy itself is a substantive

offence and is distinct from the offence to commit which the

conspiracy is entered into. It is undoubted that the

general conspiracy is distinct from number of separate

offences committed while executing the offence of

conspiracy. Each act constitutes separate offence

punishable, independent of the conspiracy. The law had

developed several or different models or technics to broach

the scope of conspiracy. One such model is that of a chain,

where each party performs even without knowledge of other a

role that aids succeeding parties in accomplishing the

criminal objectives of the conspiracy. An illustration, of

a single conspiracy, its parts bound together as links in a

chain, is

564

the process of procuring and distributing narcotics or an

illegal foreign drug for sale in different parts of the

(,lobe. In such a case, smugglers, middlemen and retailers

are privies to a single conspiracy to smuggle and distribute

narcotics. The smugglers knew that the middlemen must sell

to retailers-, and the retailers knew that the middlemen

must buy of importers of someone or another. Thus the

conspirators at one end of the chain knew that the unlawful

business would not, and could not, stop with their buyers,

and those at the other end knew that it had not begun with

their settlers. The accused embarked upon a venture in all

parts of which each was a participant and an abettor in the

sense that, the success of the part with which he was

immediately concerned, was dependent upon the success of the

whole. It should also be considered as a spoke in the hub.

There is a rim to bind all the spokes to gather in a single

conspiracy. It is not material that a rim is found only

when there is proof that each spoke was aware of one

another's existence but that all promoted in furtherance of

some single illegal objective. The traditional concept of

single agreement can also 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 three 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 be diffused.

The conspiracy continues-till it is executed in country 'B'

or frustrated. Therefore, it is a continuing act and all

are liable for conspiracy in country 'B' though first two

are liable to murder with aid of s. 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

necessity of the change in the text on the banner. In the

comity of International Law, in these days, committing

offences on international scale is a common feature. The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 20

offence of conspiracy would be a useful weapon and there

would exist no conflict in municipal laws and the doctrine

of autrefoes convict or acquit would extend to such

offences. The comity of nations are duty bound to apprehend

the conspirators as soon as they set their feet on the

country territorial limits and nip the offence in the bud.

A conspiracy thus, is a continuing offence and continues to

subsist and committed wherever one of the conspirators does

an act or series of acts. So long aits performance

continues, it is a continuing offence till it is executed or

rescinded or frustrated by choice or necessity. A crime is

complete as soon as the agreement is made, but it is not a

thing of the moment. It does not end with the making of the

565

agreement. It will continue so long as there are two or

more parties to it intending to carry into effect the

design. Its continuance is a threat to the society against

which it was aimed at and would be dealt with as soon as

that jurisdiction can properly claim the power to do so.

The conspiracy designed or agreed abroad will have the same

effect as in India, when part of the acts, pursuant to the

agreement are agreed to be finalised or done, attempted or

even frustrated and vice versa.

In K. Satwant Singh v. The State of Punjab [1960] 2 SCR 89,

a Constitution Bench of this Court was to consider as to

when s. 188 of the Code would be applicable to a case. The

facts therein was that the appellant had cheated the Govt.

of Burma whose office was at Shimla punishable under s. 420

IPC. The accused contended that the part of the act was

done at Kohlapur where payment was to be made and on that

basis the court at Shimla had no jurisdiction to try the

offence without prior sanction of the political agent.

Considering that question this court held that if the

offence of cheating was committed outside British India, the

sanction would be necessary but on facts it was held that:

"It seems to us, on the facts established in

this case, that no part of the offence of

cheating was committed by the appellant

outside British India. His false

representation to the Govt. of Burma that

money was due to him was at a place in British

India which induced that 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 Brithsh India, an

d

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 S. 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. Stale of West Bengal [1962] 2 SCR 101, this court,

when the appellant was charged with offences punishable

under ss. 120B, 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 20

jurisdiction to try the offence under s. 471 read with s.

466, EPC, even though committed in pursuance of the

conspiracy and in course of the same transaction. This

court held that the desirability of trying the offences of

alit

566

he overt acts committed in pursuance of a conspiracy

together is obvious and ss. 177 and 239 of the Code leave no

manner of doubt that the court which has the jurisdiction to

try the offence of criminal conspiracy has also the

jurisdiction to try all the overt acts committed in

pursuance of it even though outside its territorial

jurisdiction. In LN. Mukherjee v. The State of Madras

[1962] 2 SCR 116, it was further held that the court having

jurisdiction to try the offences committed in pursuance of

the conspiracy, has also the jurisdiction to try the offence

of criminal conspiracy, even though it was committed outside

its territorial jurisdiction. This view was further

reiterated in R.K. Dalmia v. Delhi Administration [1963] 1

SCR 253 at 273 and Banwari Lal Jhunjhunwala and Ors. v.

Union of India and Anr. 1963] supp. 2 SCR 338. Therein it

was held that the court trying an accused for offence of

conspiracy is competent to try him for offences committed in

pursuance of that conspiracy irrespective of the fact

whether or not overt acts have been committed within its

territorial jurisdiction. The charges framed therein under

s. 409 read with ss. 120B, 420, IPC and s. 5(1) (D) read

with s. 5(2) of the Prevention of Corruption Act were

upheld.

Thus we hold that sanction under section 188 is not a

condition precedent to take cognizance of the offence. If

need be it could be obtained before trial begins.

Conspiracy was initially hatched at Chandigarh and though

itself is a completed offence, being continuing offence,

even accepting appellant's case that he was at Dubai and

part of conspiracy and overt acts in furtherance thereof had

taken place at Dubai and partly at Chandigarh; and in

consequence thereof other offences had been ensued. Since

the. offences have been committed during the continuing

course of transaction culminated in cheating P.N.B. at

Chandigarh, the need to obtain sanction for various offences

under proviso to s. 188 is obviated.Therefore, there is no

need to obtain sanction from Central Govt. The case may be

different if the offences were committed out side India and

are completed in themselves without conspiracy. Perhaps

that question may be different for which we express no

opinion on the facts of this case. The ratio in Fakhruila

Khan has no application to the facts in this case. Therein

the accused were charged for offences under s. 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 s. 409, IPC had also, been taken place outside

British India. Therefore, it was held that the sanction

under s, 188 was necessary. The ratio in Kailash Sharma's

case is not good at law. The appeal is accordingly

dismissed.

R.M. SAHAI J. 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

567

absence of sanction under Section 188 of the Criminal

Procedure Code (in brief 'Cr. P. C.'). Two submissions were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 20

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 constituted of a number of ingredients

and even if one of them was committed outside the country

Section 188 of the Cr. P.C. was attracted.

Language of the section is plain and simple. It operates

where an offence is committed by a citizen of India outside

the country. Requirements are, therefore, one-commission of

an offence; second by an Indian citizen; and third-that it

should have been committed outside the country. Out of the

three there is no dispute that the appellant is an Indian

citizen. But so far the other two are concerned the

allegations in the complaint are that the conspiracy to

forge and cheat the bank was hatched by the appellant and

others in India. Whether it was so or not, cannot be gone

into at this stage.

What is the claim then? Two fold one the appellant was in

Dubai at the relevant time when the offence is alleged to

have been committed. Second, since the bills of lading and

exchange were prepared and were submitted to the Emirates

National Bank at Dubai and the Payment too was received at

Emirates National Bank in Dubai, the alleged offence of

forgery and cheating were committed outside India. Is that

so? Can the offence of conspiracy or cheating or forgery on

these allegations be said to have been committed outside the

country? Substantive law of extra-territory in respect of

criminal offences is provided for by Section 4 of the IPC

and the procedure to inquire and try it is contained the

Section 188 Cr.P.C. Effect of these sections is that an

offence committed by an Indian citizen, outside the country

is deemed to have been committed in India. Proviso to

Section 188 Cr. P.C. however provides the safeguard for the

NRI to guard against any unwarranted harassment by

directing, "that, notwithstanding anything in any of the

preceding sections of this Chapter, no such offence shall be

inquired into or tried in India except with the previous

sanction of the Central Government."

Since the proviso begins with a non obstinate clause its

observance is mandatory. But is would come into play only

if the principal clause is applicable, namely, it is

established that an offence as defined in clause 'n' of

Section 2 of the Cr.P.C. has been committed and it has been

committed outside the country.

What has to be examined at this stage is if the claim of the

appellant that the offence under Section 120B read with

Section 420 and Section 471 of the IPC were committed

outside the country. An offence is defined in the Cr. P.C.

to mean an

568

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 20

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 outside

the country. In Mobarik Ali Ahmed v. The State of Bombay.

AIR 1957 SC 857 this court while dealing with the question

of jurisdiction of the Courts to try an offence of cheating

committed by a foreign national held that the offence of

cheating took place only when representation was made by the

accused sitting in Karachi to the complaints sitting in

Bombay. The argument founded on corporeal presence was

rejected and it was observed:

"What is, therefore, to be seen is whether

there is any reason to think that a foreigner

not corporeally present at the time of the

commission of the commission of the offence

does not fall within the range of persons

punishable therefor under the Code. It

appears to us that the answer must be in the

negative unless there is any recognised legal

principle on which such exclusion can be

founded or the language of the Code compels

such a construction".

If a foreign national is amenable to jurisdiction under

Section 179 of the Cr. P.C. a NRI cannot claim that the

offence shall be deemed to have been committed outside the

country merely because he was not physically present.

Preparation of bill of lading at Dubai or payment at Dubai

were not isolated acts. They were part of chain activities

between the appellant and his associates with whom he

entered into agreement to cheat the bank at Chandigarh. Any

isolated act or omission committed at Dubai was insufficient

to constitute an offence. The illegal act of dishonestly

inducing the bank at Chandigarh was committed not by

preparation of bill at Dubai but its presentation in

pursuance of agreement to cheat. The submission thus

founded was on residence or on preparation of bills of

lading or encashment at Dubai are of no consequence.

569

Nor is there any merit in the submission that even part of

the offence would attract Section 189 as the section

operates when offence is committed outside India. An

offence is committed when all the ingredients are satisfied.

The section having used the word offence it cannot be

understood as part of the offence. Section 179 Cr.P.C.

empowers a court to try an offence either at a place where

the offence is committed or the consequences ensue. On the

allegations in the complaint the act or omissions were

committed in India. In any case the consequence of

conspiracy, cheating and forging having taken place at

Chandigarh the offence was not committed outside the country

therefore the provisions of Sec. 188 Cr. P.C. were not

attracted.

ORDER

For reasons given by us in our concurring but separate

orders the appeal fails and is dismissed.

Parties shall bear their own costs.

VPR. Appeal dismissed.

570