Abdul Mazid and Another vs I.M. Yacoub

Anatanarayanan, J.—These are related criminal appeals and we shall first deal with the special appeal by one Fazal Khan (No. 823 of

1963) as that alone involves any problem in the disposal of the grounds of appeal. Briefly, stated, the facts are that this Fazal Khan (appellant), a

resident of Mysore, and four others, of whom one Abdoul Mazid, is the appellant in U. S. R No. 15383 of 1963, from Jail, were tried together by

the courts at Pondicherry, with regard to alleged offences of house-breaking and theft, complicity in theft, receipt and retention of stolen articles

etc. The procedure followed was that of the Inquisitorial System recognised under the French Code of Criminal Instruction or Procedure, namely,

there was initial investigation by Judge of Instruction who talk cognisance of the information laid by the police; including the statements of the

accused (Process-verbal) and this was followed by a commitment and a trial before the court of first instance. The convictions were under Arts.

379, 401, 59 (paragraph 11), 60 460 and 365 of the Code Penal; as far as Fazal Khan was concerned, he was sentenced to imprisonment for 4

years for the offences, to local banishment for ten years and damages of Rs. 10,000. Abdul Mazid (appellant in U. S. R. No. 15383 of 1963) was

similarly convicted and sentences. The Tribunal Superieur of Appeal heard the appeals of the respective accused, and confirmed the convictions

and sentences.

As we have earlier pointed out the case of Fazal Khan involves certain special grounds, arising out of the fact that he was arrested by the

Pondicherry police at Mysore, and that the recovery of stolen articles from his house or his possession was at Mysore. It is not the case for the

prosecution that Fazal Khan actually committed the offence of house-breaking and that in Pondicherry limits, along with the other accused. The

case is that he was an accomplice in the commission of those offences, and by providing a car subsequently for conveyance of he stolen properties

form Bangalore. The case is also that he received and retained the stolen goods, with guilty knowledge.

Sri Arunachalam for the appellant (Fazal Khan) raises a preliminary ground of jurisdiction. According to his contention, the Pondicherry courts

had no jurisdiction to try his client, because the French law is clear that a person cannot be tried in France or within the French settlements for

concealment of stolen properties outside the territorial jurisdiction. Reliance is placed upon a ruling of the Tribunal Superieur d'' Appal at

Pondicherry of October 1937, quoting a French Precedent tot he effect that he French courts were not competent to hear and determine cases of

concealment committed in foreign territory of the proceeds of a theft committed in France. But, there would appear to be two clear answers to this

objection we are hence constrained to hold that he Pondicherry courts had jurisdiction in the present matter. First of all, the case against this

appellant (Fazal Khan) was not merely that the concealed in foreign territory goods which were the subject of heft in French territory; had that

been the only charge, the question of jurisdiction might conceivably have arisen. But the case against him was that he instigated the commission of

the offences of house breaking and theft at Pondicherry, though he was not bodily present, arranged for transport of stolen properties along part of

the route to Mysore, and finally concealed the stolen goods or portion of those goods, in his house at Mysore.

Sri Arunachalam stresses that, with regard tot he alleged charge of instigation or complexity, the evidence is extremely weak, and that if consists

merely of the statement is in general terms according to the Process-Verbal, and not specifically o the effect that Fazal Khan (appellant) asked the

other accused to commit the crimes at Punditry. But, obviously, the question of jurisdictions is one matter, and the question of the adequacy of the

acceptability of evidence is a totally distinct matter. Upon the charges, the courts at Pondicherry had jurisdiction to try Fazal Khan for the offences

with which he was charged. Another answer tot he objection is that, in Nouveau repertoire Dalloz, Vol. III (1949 Edn). under the Heading Recel

at pages 706-706, we find a definite statement of jurisprudence to the effect that, when, articles are removed from the French territory, by a

stranger, which are or have been the subject of theft in French territory, French Tribunal will have jurisdiction tot take cognizance of both the theft

and the receipt of stolen goods, and to try the concerned offenders. On the question of jurisdiction, we must hold that he French courts were

competent. As far as our own law is concerned, the mater is really beyond controversy, for, under illustration (b) to section 180 Criminal

Procedure Code a person can be tried on a charge of receiving or retaining stolen goods, either by the court within the local limits of whose

jurisdiction the goods wee stolen, or by the court within the local limits of whose jurisdiction the goods were dishonestly received or retained.

With regard tot he propriety of the convictions, we re unable to find any ground for interference upon any aspect, of infirmity of law, or

contravention of the principles of law accepted in the French Criminal Procedure. It is true that, had the law which prevails under our system of

Criminal Jurisprudence been applicable, that part of the evidence relating to the complicity of this appellant in the crimes committed in Pondicherry,

would be legally excluded. But even so, we find clear evidence on the record with regard tot he production by the appellant of part of the stolen

goods (33 saris) before Mr. Lingappa, Circle Inspector of Mysore City, when the officer questioned the appellant and searched his house.

Actually, we find from form the documents made available to us, that the appellant admitted this production, and indisputably the admissions were

such as to lend every justification to an inference of receipt or retention of stolen goods with guilty knowledge. Hence, the property of at least the

conviction upon this charge cannot be questioned. These facts could also be regarded as circumstantial evidence, in support of the charge of

complicity in the theft itself, when with other evidence which is admissible under the French law, though, perhaps, not under our own.

Consequently, we are unable to see any justification for interference with the propriety of the convictions of this appellant (Fazal Khan) and, they

will have to be sustained.

As regards the appellant from jail (Abdoul Mazid), the case is far stronger, because the evidence against him relates to admissions of actual

commission of the offence, along with others, including an admission of making a hole in the backdoor of the premises and obtaining entry, and also

evidence relating to disposal of the stolen goods. The convictions of this appellant are confirmed.

We have very carefully considered the question of the sentences. Were we functioning purely as a court of Cassation, we might have no

jurisdiction to interfere with the sentences actually imposed, even if they appeared to us to be excise or harsh. But under S. 10 of the Pondicherry

(Administration) Act, No. 49 of 1962, we are not merely clothed with the powers of a court of Cassation, but we have also the general jurisdiction

which is enacted under S. 9, and the is a specific exemption in the opening words of S. 10(1) to the effect that our powers are ""without prejudice

to the generality of the provisions of S. 9."" Therefore, we do have powers of ordinary criminal jurisdiction, in suitable cases, of course, to reduce

the sentence in the interests of justice. In the present case, the minimum sentence that can be awarded as a sentence of imprisonment under the

Code Penal is imprisonment for a term of one year. Taking all the circumstances of this case into account, we consider that in the interests of

justice, no heavier sentence that the minimum sentence need be imposed in the instance of Fazal Khan (appellant) and Abdoul Mazid (appellant

form jail). Accordingly, we direct the reduction of the sentences of imprisonment of Fazal Khan to a period of one year in the case of Abdoul

Mazid this will be the period already undergone by him, which is not less than the minimum. The sentences of local banishment under the French

Law are confirmed, as well as the direction, both jointly and severally to pay damages the aggrieved party to the time of Rs. 10,000.

Order accordingly.