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1955 DIGILAW 59 (PAT)

State Of Bihar v. Motab Dewan

1955-05-12

IMAM

body1955
Judgment Imam, J. 1. This criminal reference has been made by Mr. A.K. Saran Sessions Judge of Champaran, against the order of the Sub-divisional Magistrate of Bettiah, dated 10-10-1953, and the order of the Munsif Magistrate of the same place dated 26-4-1954. The learned Sub-Divisional Magistrate of Bettiah had taken cognizance of the offence by his order dated 10-10-1953,, and the learned Munsif Magistrate thereafter had com mitted the members of the opposite party to stand their trial before the court of Session by his order dated 26-4-1954. 2. The facts of the case are these. The members of the opposite party, namely, Motab Dewan and Walayat Dewan, who are residents of village Purainee, within the jurisdiction of police station Sikta in the district of Champaran, are stated to have committed dacoity on 13-2-1953, in the bed of river Sikta which lies in the territory of Nepal. The first information was lodged on 14-2-1953 at Parsa Police station lying within the Nepal territory. The case was then duly investigated by the Suba court in Nepal attached to Birganj in Nepal. The Ambassador Extraordinary and Plenipo tentiary of India at the court of Nepal addressed a letter to the District Magistrae of Champaran giving a certificate purporting to be under Sec.188, Criminal P. C. to the effect that the members of the opposite party should be tried in India on the ground that they were Indian nationals. On the strength of this certificate, the Sub-Divisional Magistrate of Bettiah took cognizance of the offence. Thereafter, the District Magistrate transferred the case to the Munsif Magistrate of Bettiah who committed the members of the opposite party to stand their trial before the Court of Session. 2. The point that has been raised by the learned Sessions Judge in his letter of reference in this : that the Ambassador Extraordinary and Plenipotentiary of India in Nepal is not a political agent, and the certificate granted by him under Sec.188, Criminal P. C. would not be sufficient to confer jurisdiction on the courts in India, and thus the orders of the Sub-Divisional Magistrate and the Munsif Magistrate were without jurisdiction, and they must, therefore, be set aside. The learned Sessions Judge has relied upon a decision of this court reported in -- Shaikh Babujan V/s. State, AIR 1954 Pat 475 (A). 3. The learned Sessions Judge has relied upon a decision of this court reported in -- Shaikh Babujan V/s. State, AIR 1954 Pat 475 (A). 3. Before deciding the point at issue, it is necessary to refer to Sec.188, Criminal P. C. which is as follows : Sec.188. When an offence is committed by-- (a) any citizen of India in any place without and beyond India; or (b) any person on any ship or aircraft registered in India, whether it may be, he may be dealt with in respect of such offence as if 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 Chapters no charge as to any such offence shall be inquired into in India unless the Political Agents, if there is one, for the territory in which the offence is alleged to have been committed, certifies that, in his opinion, the charge ought to be inquired into in India; and, where there is no Political Agent, the sanction of the State Government shall be required". 4. It is not necessary to quote the rest of the section. It will be noticed that in the proviso it is stated that a certificate of the Political Agent is necessary where there is such an Agent and Where there is no Political Agent, the sanction of the State Government is necessary before an offence committed by an Indian national outside India can be inquired into within the territory of India. There is no doubt at all that the alleged offence was committed in the territory of Nepal, nor is there any doubt that when the alleged offence was committed there was no political Agent, nor is it in doubt that there is no sanction by the State Government. The question, therefore, is whether the certificate given by the Ambasador Extraordinary and Plenipotentiary of India in Nepal can be deemed to be a certificate given by the Political Agent. The question, therefore, is whether the certificate given by the Ambasador Extraordinary and Plenipotentiary of India in Nepal can be deemed to be a certificate given by the Political Agent. The word "Political Agent" in its ordinary sense cannot include an Ambassador Extraordinary and Plenipotentiary; but it appears that the General Clauses Act, 1887 was amended sometime prior to 15-3-1952, and according to that amendment Sub-section (43) of Sec.3 of that Act states that "Political Agent shall mean, in relation to any territory outside India, the Principal Officer, by whatever name called, representing the Central Government in such territory". It is not necessary to refer to the rest of that section. In view of the amendment made In the General Clauses Act, 1887, the word "Political Agent" must now mean the Principle Officer representing the Central Government in Nepal, the territory in question. There is no doubt whatsoever that Principal Officer representing the Central Government in Nepal is the Ambassador Extraordinary and Plenipotentiary of India. That being the position, the certificate granted by the Ambassador Extraordinary and Plenipotentiary of India in Nepal must be deemed to have been a certificate granted by the Political Agent, and therefore, it cannot be said that the Subdivisional Officer when he took cognisance of the offence by his order dated 10-10-1953, did so without jurisdiction, nor can it be said in these circumstances that the order of the learned Munsif Magistrate committing the members of the opposite party to stand their trial in the Court of Session by his order dated 26-4-1954 was without jurisdiction. It is true that there is a decision of this Court to which the learned Sessions Judge has made a reference, and according to that decision, namely, AIR 1954 Pat 475 (A), Imam C. J. (as he then was) held in similar circumstances that the certificate granted by the Ambassador cannot be deemed to be a certificate granted by the Political Agent. I have been through that decision very carefully, and it appears to me that the attention of Imam, C. J. was not drawn to the amendment in the General Clauses Act. It is for that reason imam, c. J. held that, as the law without the amendment stood, the Ambassador could not be included to mean Political Agent. 5. Mr. I have been through that decision very carefully, and it appears to me that the attention of Imam, C. J. was not drawn to the amendment in the General Clauses Act. It is for that reason imam, c. J. held that, as the law without the amendment stood, the Ambassador could not be included to mean Political Agent. 5. Mr. K. P. Verma representing the State submitted that this case should be referred to a Division Bench in view of the decision of Imam, C. J. But I see no reason for doing so. The law is definitely clear that Political Agent in-"cludes that the Principal Officer representing the, Central Government. It cannot be gainsaid that the Ambassador is the Principal Officer in Nepal. It is quite obvious that Imam, C. J. decided the case upon the facts that were placed before him. The amendment to the, General Clauses Act was not pointed out to him, and thus it cannot be said, that is a decision for the view that an Ambassador is not the Principal Officer representing the Central Government in the territory. In fact, Mr. Verma submitted that this case before Imam, C. J. was argued by him and at that time the amendment of the General Clauses Act was not known, to him and therefore, it was not placed before the then Chief Justice. Having -regard to these circumstances, it will be sheer waste of time in my opinion, to refer this case to a Division Bench when law as it stands, taking the amendment of the General Clauses Act into consideration, is perfectly clear that the word "Political Agent" includes the Principal Officer representing the Central Government in that territory. In my opinion, therefore, there is no merit in this reference, and it must, therefore, be rejected.