-

-

S.C.R. SUPREME COURT REPORTS 697

which declares that none of the provlSlons of the

specified Acts shall

be deemed to be void or ever to have

become void

on the ground of the alleged violation of

the rights indicated

and

"notwithstanding any judg­

ment, decree or order of any court

or

tribunal." That

intention is also . emphasised by the positive declaration

that "each of the said Acts or Regulations shall, subject

to the power of any competent Legislature to repeal or

amend it,

continue in

force."

Vve are, therefore, clearly of the opinion that the

challenge to the validity of the Bombay Taluqdari

Tenure Abolition Act,

1949 on the ground put forward

was not open.

The appeals must, therefore, be

dismissed with costs.

Costs one set.

Appeals dismissed.

CENTRAL BANK OF INDIA

v.

RAM NARAIN.

MEHR CHAND MAHAJAN C.J., MuKHERJEA,

V1v1AN BosE, JAGANNADHADAS

and VENKATARAMA AYYAR JJ.]

Offence committed by a person in Pakistan-Migration to India

and acquiring domicil therein-Courts in

lndia-/urisdiction­

Trial-Indian

Penal Code (Act XLV of 1860) s. 4-Criminal

Procedure Code (Act V of 1898), s. 188-Whether apply under the

circumstances-Domicil, definition of.

A person accused of an offence under the Indian

Penal Code

and committed in a district which after the partition of India

became part of Pakistan cannot be tried for that offence by a

Criminal Court in India after his migration to India and acquiring

thereafter the status of a citizen of India.

The fact that after the comm1ss10n of an offence a person

becomes domiciled in another country, or acquires citizenship of

time when that person was neither the national of that country

retrospectively for trying offences committed and completed

at a

time when that person was neither the national of that country

nor was he domiciled there.

According to section 4 of the Indian

Penal Code and section

J 88 of the Code of Criminal Procedure if at the time of the commis­

sion of the offence the person committing it is a citizen of India

then even if the offence

is committed outside India he is subject

to.

1954

Dhirubha

Devsingh Gohil'

v.

The State of

Bomb/!Y.

Jagannadhodasj..

1954

October 12'

1954

Central Bank of

India Ltd.

v.

Ram Narain.

698 SUPREME COURT REPORTS [1955]

the jurisdiction of the Courts in India, as qua citizens the jurisdic·

tion of Courts is not lost by reason of the venue of an offence. · If,

however,

at the time of the commission of the offence the accused

person is not a citizen of India these . sections have no

applicati~n

at all.

The term "domicil" does not admit of an absolute definition.

The simplest definition of don1icif is : That place is properly the

domicil of a

person in

\vhich his habitation is fixed \Vithout any

present intention of removing therefron1. The fact is that the

tenn domicil can be illustrated but cannot be defined.

Craignish v. Craignish (11892] 3 Ch. 180, 192) referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal

Appeal No. 90 of 1952.

Appeal under article 134(1) (c) of the Constitution

of India from the Judgment and Order, dated 28th

November,

1954, of

the Punjab High Court in Criminal

Revision No.

865 of 1951, arising out of the Judgment,

dated 2nd August,

1951, of the Court of Additional

Sessions Judge, Rohtak, Gurgaon, in Criminal Revision

No. 4 of

1951.

M.

C. Seta!vad, Attorney-General

Chand and Rajinder Narain, with

appellant.

for

India

him) for

(Tek

the

Copa! Singh and K. L. Mehta for the respondent.

S. M. Sikri, Advocate'General for the State of

Punjab (Jinder Lal and P. G. Gokhale, with him) for

the Intervener (The State of Punjab).

1954. October 12. The Judgment of the Court was

delivered by

MEHR CHAND MAHAJAN C. J.-This appeal, by leave

of the High Court of Judicature at Simla, raises a novel

and interesting question

of law, viz., whether a person

accused of an offence under the Indian

Penal . Code

and committed'

in a district

which after the part1t10n

of India became Pakistan, could be tried for that

offence

by a Criminal Court in India after his migration

to that country, and thereafter acquiring the status

of a citizen.

The material facts relevant to this enquiry are these :

The respondent, Ram Narain, acting on behalf of his

firm,

Ram Narain Joginder Nath, carrying on business

at Mailsi in Multan District, was allowed a cash credit

limit of rupees three lakhs

by the Mailsi branch of the

Central Bank

of India Ltd. (the appellant) on the 23rd

-

-

,

-

-

•

S.C.R. SUPREME COURT REPORTS 699

December, 1946, shortly before the partition of British

India. The account

was secured against stocks which

were to remain in possession of the borrowers

as

trustees on behalf of the bank.

On 15th August, 1947,

when British India was split into two Dominions, the

amount due to the bank from Ram Narain

was over Rs. 1,40,000, exclusive of interest, while the value of

the goods pledged under the cash credit agreement was

approximately in the sum of Rs. 1,90,000. On account

of the disturbances that followed in the wake

of the

partition of the country, the bank's godown-keeper at

Mailsi left Mailsi

some time in September, 1947, and

the cashier, who

was left in charge, also was forced to

leave that place in October, 1947, and thus no one was

in Mailsi to safeguard the bank's godowns after that

date. It

is alleged that in January, 1948, when,

Mr. D.

P. Patel, Agent of the Multan branch of the

appellant bank, visited Mailsi, he discovered that stocks

pledged

by Messrs. Ram Narain Joginder Nath, against

the cash credit agreement had disappeared.

On inquiry

he found that 801 cotton bales pledged with the bank

had been stolen, and booked

by, Ram Narain to

Karachi on the 9th November,

1947, and that he had

recovered a sum of

Rs. 1,98,702-12-9 as price of these

bales from

one Durga<las D.

Punjabi. The bank

claimed this amount from Ram Narain but with no

result. It then applied under section

188, Criminal

Procedure Code, to the East Punjab Government for

sanction for the prosecution

of Ram Narain for the

offences committed in

Pakistan in November, 1947,

when he was there, in respect of these bales. The East

Punjab Government, by its order dated 23rd February,

1950, accorded sanction for the prosecution of Ram

Narain, under sections 380 and 454, Indian Penal Code .

Ram Narain, at this time,

was residing in Hodel,

District Gurgaon, and

was carrying on business under

the name and

style of Ram Narain Bhola Nath,

Hodel..

In pursuance of this sanction, on 18th April, 1950, the

bank filed a complaint against Ram Narain under

sections 380 and 454, Indian Penal Code, and also.

under section

412 of the Code before the District

Magistrate of Gurgaon.

1

954

Central Bank of

India Ltd.

v.

Ram Narain.

Mahqjan C. J-

1954

'Central Bank of

India Ltd.

v.

Ram Narain

Mahajan C. J.

700 SUPREME COURT REPORTS f1955]

Ram Narain, when he appeared in Court, raised a

preliminary objection that at the time of the alleged

occurrence he was a national of Pakistan and therefore

the East Punjab Government

was not competent to

grant sanction for his prosecution under section

188, Criminal Procedure Code, read with section 4,

Indian

Penal Code. This objection was not decided

at that moment, but after evidence m the

case

had been taken at the request of both sides the

Court heard arguments on the

p,rliminary point

and overruled it on the finding that Ram Narain

could not

be said to have acquired Pakistan nationality

by merely staying on there from 15th August, till

10th

November, 1947, and that all this time he had the

desire and intention to revert to Indian nationality

because he sent his family out

to India in October,

1947, wound up his business there and after his migra­

tion to India in November,

1947, he did not return to

Pakistan.

It was also said that in those days Hindus

and

Sikhs were not safe m Pakistan and they were

bound to come to India under the inveitable pressure

of circumstances over which they had no control. Ram

Narain applied

to the Sessions Judge, Gurgaon, under

sections 435 and 439, Criminal Procedure Code, for

setting aside this order and for quashing the charges

framed against him. The Additional

Sessions Judge

dismissed this petition and affirmed the decision of the

trial magistrate. Ram Narain then preferred an

application in revision

to the High Court,

Punjab, at

Simla, and with. success. The High Court allowed the

revision and quashed the charges and held that the

triai of respondent, Ram Narain,

by a magistrate m

India was without jurisdiction.

It was held that until

Ram Narain actually left Pakistan and came to India

he could not possibly be said to have become a citizen

of India, though undoubtedly he never intended to

remam m Pakistan for any length of time and wound

up his business

as quickly as he could and came

ta

India in November, 1947, and settled in Hodel. It was

further held that the Punjab Government had no

power m February, 1950, to sanction his prosecution

under section

188, Criminal Procedure Code, for acts

-

..

•

.,.

...

-

#

•

S.C.R. SUPREME COURT REPORTS 701

committed in Pakistan in November, 1947. The High

Court

also repelled the further contention of the appel­

lant bank that in any

case Ram Narain could be tried

at Gurgaon for the

possession or retention by him at

Hodel

of the sale proceeds of the stolen cotton which

themselves constitute stolen property. Leave to appeal

to this Court

was granted under article 134(1) (c) of

the Constitution.

The

sole question for determination in the appeal is

whether on a true construction of section 188, Criminal

Procedure

Code, and section 4 of the Indian Penal Code,

the East

Punjab Government had power to grant

sanction for the prosecution of Ram Narain for

offences committed in Pakistan before his migration to

India.

The relevant portion

of section 4, Indian Penal Code,

before its amendment read thus :

"The provisions of this Code apply also to any

offence committed

by-

(1) any Native Indian subject of Her Majesty in

any place without and beyond British India ;

....

"

Since 1950, the wording is :

"Any citizen of India in any place without :md

beyond India .... "

Section 188, Criminal Procedure Code, formerly read

thus : ·

"When a Native Indian subject of Her Majesty

commits an

offence at any place without and beyond

the limits

of British India .... he may be dealt with in

respect

of such offence as if it had been committed at

any place within British India at which

he may be

found."

These wordings were subsequently adapted after the

formation of two Dominions and read

as follows :-"When a British subject domiciled in India com­

mits an offence at any place without and beyond all

the limits of the provinces .... he may bee dealth with in

respect

of such offence as if it had been committed at

any place within the Provinces at which he may

be

.

found."

After 1950, the adapted section reads as follows :

"When an offence is committed by-

1954

Central Bank of

India Ltd.

v.

Ram Narain.

Mahajan C. J.

1

954

Central, Bank of

India Ltd.

v.

Ram Narain

!Jahajan C. J.

702 SUPREME COURT REPORTS [19551

(a) any citizen of India in any place without and

beyond India .... he may be dealt with m respect of

such offence

as if it had been committed at any place

within_ India at which he may be

found."

The learned Attorney-General contended that Ram

Narain

was, at the time when sanction for his prosecu­

tion was given

by the East Punjab Government, a

citizen of India residing in Hodel and

that being so, he

could be tried in India being a citizen

of_

India, at that

moment, and having committed offences outside India,

and that the provisions

of section 4, Indian Penal

Code,

and section 188, Criminal Procedure Code, were fully

attracted

to the case. In our opinion, this contention

is not well founded. The language of the sections

plainly means that if at the time of the commission of

the offence, the person committing it

is a citizen of

India, then even if the offence is committed outside

India he

is subject to the jurisdiction of the Courts in

India.

The rule enunciated in ihe

sectio1l is based on

the principle that

qua citizens the jurisdiction of Courts

is not lost by reason of the venue of the offence. If,

however, at the time of the commission of the offence

the accused person

is not a citizen of India, then the

provisions

of these sections have no application

whatsoever. A foreigner

was not liable to be dealt with

in British India for an offence committed and completed

outside British India under the provisions of the

sections

as they stood before the adaptations made in

them after the partition of India. Illustration (a) to

section

4, Indian Penal

Code, delimits the scope of the

section. It indicates the extent and the ambit of this

section. It runs

as follows :-

•

"(a) A, a coolie, who is a Native Indian subject

commits a murder in Uganda. He can be tried and

convicted of murder in any place in British India in

which he may

be

found."

In the illustration, if (A) was not a. Native Indian

subject at the time of the commission

of the murder,

the provisions

of section 4, Indian Penal Code, could

not apply

to his case. The circumstance that after the

commission of the offence a person becomes domiciled

in another country, or acquires citizenship of that

•

,•

-

•

•

-

..

}

S.C.R, SUPREME COURT REPORTS 701

State, cannot confer jurisdiction on the Courts of that

territory retrospectively for trying offences committed

and completed at a time when that person was

neither the · national of that country nor was he

domiciled there.

The question

of nationality of Ram Narain really

does not anse m the case. The real question to be

determined here is, whether Ram Narain had Indian

domicile

at the time of the commission of the offence.

Persons domiciled in India at the time of commg into

force of our Constitution were given the status of

citizens and they thus acquired Indian nationality.

If

Ram Narain had Indian domicile at the time of the

conumss1on of the offence, he would certainly come

within the ambit of section

4, Indian Penal Code, and

section

188, Criminal Procedure Code. If, on the other

hand, he

was not domiciled in India at the relevant

moment, those sect\ons would have no application to

his

case. Writers on Private International Law are

agreed that it

is impossible to lay down an absolute

definition of 'domicil.' The simplest definition of this

expression has been given

by Chitty J. in Craignish v.

Craignish(1), wherein the learned Judge said :

"That place is properly the domicil of a person in

which his habitation is fixed without any present

intention of removing therefrom."

But even this definition is not an absolute one. The

truth is ·that the term 'domicil' lends itself to illustra­

tions but not to definition. Be that as it may, two

constituent elements that are necessary

by English Law

for the existence of domicil

are: (1) a residence of a

particular kind, and

(:) an intention of a particular

kind. There must be 1 '1e factum and there must be the

<i.mmus. The residence need not be continuous but it

must

be indefinite, not purely fleeting. The intention

must

be a present intention to reside for ever in the

country where the residence has been taken up. It

is

also a well established proposition that a person may

have no home but he cannot

be without a domicil and

the law may attribute to him a domicil m a country

where

in reality he has not. A person may be a vagrant

(1) (1892] 3

Ch. 180, 192.

7-88 S. C. India/59.

195.j,

Central Bank of

India Ltd.

-'I;.

Ram Narain.

Mahajan C. J,

1954

1-­

CentTal Bank ef

India Ltd.

'fl

Ram Narain.

Maha;anC.J.

704 SUPREME COURT REPORTS [1955]

as when he lives in a yacht or wanderer from one

European hotel to another, but nevertheless the law

will arbitrarily ascribe to him a domicil

in one parti­

cular territory. In order to make the rule that nobody

can

be without a domicil effective, the law assigns

what

is called a domicil of origin to every person at his

birth. This prevails until a new domicil has been

acquired,

so that if a person leaves the country of his

origin with an undoubted intention of never returning

to it again, nevertheless his domicil of origin adheres to

him until he actually settles with the requisite inten­

tion in some other country.

It has been held

by the High Court that Ram

Narain remained in Multan District of the West

Punjab, where he and

his ancestors had lived till his

migration to India. The contention that

as no Hindu

or Sikh could possibly remain in Pakistan and therefore

every such person must have been bound upon making

his way to India

as quickly as possible and that merely

by forming an intention to come to India he became

an Indian subject and was never even for a moment a

subject

of Pakistan, was negatived, and it was said

that

"though there is no doubt that so far as Punjab

is concerned the vast majority of Hindus and Sikhs

came to India but even in the Punjab the exodus has

not been complete and in East Bengal there are a

considerable number of non-Muslims who no doubt by

now have become full citizens of Pakistan." In view

of these findings it was concluded that the only

possible way by which a resident of the territories

which became Pakistan could become an Indian

subject was

by actually coming to India and unless

and until any such person did come to India he retained

Pakistan

<lomicil, and was not covered by the words

"Native Indian subject of Her Majesty" in the mean­

ing which they automatically acquired as from the 15th

August;

1947, and he certainly could not be described

as a citizen of India in November,

1947, The learned

Attorney-General combated this view of the learned

Judge and laid considerahle emphasis

on his following

observations :

-

•

•

-

-

•

S.C.R. SUPREME COURT REPORTS 705

"There does not seem to be any doubt m the

evidence produced that Ram Narain never intended

to remain in Pakistan for any length of time.

In fact,

he wound up his business

a~ quickly as he could and

{:ame to India later in November 1947 and settled in

Hodel"

and he further emphasized the circumstance relied

upon

by the trial magistrate and Sessions

Juqge that

Ram Narain had sent his family to India

in October, !947.

In our opinion, none of these circumstances conclu­

sively indicate an intention in Ram Narain of perma­

nently removing himself from Pakistan and taking up

residence

111 India. It has to be remembered that 111 October or November, 1947, men's minds were in a

state

of flux. The partition of India and the events

that followed in its wake in both

Pakistan and India

were unprecedented and it

1s difficult to cite any

historical precedent for the situation that arose. Minds uf people affected by this partition and who were living

m those parts were completely unhinged and

unbalanced and there

was hardly any occasion to form

intentions requisite for acquiring domicil in one place

or another. People vacillated and altered their

pro­

grammes from day to day as events happened. They

went backward and forward ; families were sent from

one place to another for the

sake of safety. Most of

those displaced from West

Pakistan had no permanent

homes in India where they could

go and take up abode.

They overnight became refugees, living

111 camps m

Pakistan

or in India. No

o_ne, as a matter of fact, at

the moment thought that when he

was leaving

Pakistan for India

e>r vice versa that he was doing so

for ever or that he was for ever abandoning the place

-0f his ancest0rs. Later policies of the Pakistan Govern­

ment that prevented people from going back to their

homes

cann(l)t be taken into consideration in

determin­

ing the intention of the people who migrated at the

relevant moment. Ram Narain may well have sent

his family

to India for safety. As pointed out by the

learned Judge below, he and

his ancestors lived in the

Multan District.

He had

c0nsiderable business there.

1954

Central Bank of

India Ltd.

v.

Ram Narain.

Mahajan C.J.

1.954

Central Bank Bf

India Ltd.

v.

Ram Narain.

Mahajan C. J.

706 SUPREME COURT REPORTS [19551

The bank had given him a cash credit of rupees three

lakhs on the security of goods.

He had no doubt some

business in Hodel also but that was comparatively

small. There

is no evidence that he had any home in

India and there.

is no reason to go behind the finding

of the learned Judge below that

he and his ancestors

had been living in Mailsi. In these circumstances, if

one may

use the expression, Ram Narain's domicil of

origin

was in the district of Multan and when the

district of Multan fell

by the partition of India in

Pakistan, Ram Narain had

to be assigned Pakistan

domicil till the time he expressed his unequivocal

intention of giving up that domicil and acquiring

Indian domicil and

also took up his residence in India.

His domicil cannot

be determined by his family com­

ing

to India and without any finding that he had

established a home for himself. Even

if the animus

can

be ascribed to him the factum of residence is

wanting in his case ; and in the absence of that fact,

an Indian domicil cannot

be ascribed to Ram Narain.

The subsequent acquisition

by Ram Narain of Indian

domicil cannot affect the question of jurisdiction of

Courts

for trying him for crimes committed by him

while he did not

possess an Indian domicil. The ques­

tion in this

case can be posed thus : Can it be said

that Ram Narain at the time

of the commission of the

offence

was domiciled in India ? That question can

only

be answered in one way, viz., that he was not

domiciled in India. Admittedly, then he

was not a

citizen of India because that status

was given by the

Constitution that came into force in January,

1950.

He had no residence or home in the Dominion of India.

He may have had the animus to come to India but

that animus

was also indefinite, and uncertain. There

is no evidence at all that at the moment he committed

the offence he had finally made up

his mind to take up

his permanent residence in India, and a matter of this

kind cannot

be decided on conjectural grounds. It is

impossible to read a man's mind but it is even more

than impossible to

say how the minds of people worked

during the great upheaval of

1947.

'

-

-

-

· S.C.R. SUPREME COURT REPORTS 707

The learned Attorney-General argued that Ram

Narain was a native Indian subject of

Her Majesty

before the 15th August,

1947, and that description

continued to apply to him after the 15th August,

1947,

whether he was in India or in

Pakistan, but we think

that the. description 'Native subject

of Her Majesty'

after the 15th of August,

1947, became applicable m

the territory now constituted India only

to residents

of provinces within the boundaries

of India, and in

Pakistan to residents of provinces within the boundaries

of Pakistan and till the time that Ram Narain actually

landed on the

soil of India and took up permanent

residence therein

he cannot be described to be domiciled

m India or even a Native Indian subject of His

Majesty domiciled in India.

For the reasons given above we are

of the opinion

that the decision

of the High Court that Ram Narain

could not be tried in any Court in India for offences

committed in Mailsi in November,

1947, is right and

that the

Provincial Government had no power under

section

188, Criminal Procedure Code, to accord sanction

to his prosecution.

The

result is that the appeal fails and is dismissed.

Appeal dismissed.

SAGHIR AHMAD

ti.

THE STATE OF U. P. AND OTHERS.

(With Connected Appeal)

[M1mR CHAND MAHAJAN C.J., MuKHERJEA,

S. R. DAs, VIVIAN BosE and GHULAM HASAN JJ.]

Constitution of India, Arts. 14, 19(1) (g), 19(6), 31(2), 301-

Highway-lts origin and use-Citizen's rights in respect of high­

ways-Vis-a-vis the State-State's right to control highway-Limit

of such control-Constitution of India (First Amendment) Act, 1951

"'" -U. P. Road Transport Act, 1951 (U. P. Act II of 1951)-Whether

ultra vires the Constit,~tion-Subsequent amendment of Constitution

if can validate a prior unconstitutional Act.

1954

Central Bank of

India Ltd.

v.

Ram Narain.

Mahajan C. ],

1954

October I3f