Central Bank of India vs Ram Narain
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Criminal Appeal No. 90 of 1952
Decision Date: 12 October, 1954
Coram: Mehar Chand Mahajan, B.K. Mukherjea, Vivian Bose, B. Jagannadhadas
The case Central Bank of India versus Ram Narain was decided by the Supreme Court of India on 12 October 1954. The judgment was authored by Justice Mehar Chand Mahajan, who sat together with Justices B. K. Mukherjea, Vivian Bose, B. Jagannadhadas, B. Aiyyur and T. L. Venkatarama. The petitioner in the proceeding was the Central Bank of India and the respondent was Ram Narain. The judgment was recorded on the same date as the hearing, 12 October 1954, and the bench was headed by Chief Justice Mehar Chand Mahajan. The official citation of the decision is reported as 1955 AIR 36 and 1955 SCR (1) 697, and it has been referenced in later reports including R 1966 SC1614 (7) and RF 1991 SC1886 (9). The matter concerned an offence that was alleged to have been committed by a person in the territory that, after the partition of India, became part of Pakistan, and subsequently the question arose whether the courts in India retained jurisdiction after the accused migrated to India and acquired Indian citizenship.
The headnote of the decision explains that a person charged with an offence under the Indian Penal Code, which was committed in a district that after partition became a part of Pakistan, cannot be tried by a criminal court in India after that person has moved to India and obtained Indian citizenship. The reasoning emphasizes that merely becoming domiciled in another country or acquiring that country’s citizenship does not give that country’s courts retrospective jurisdiction over offences that were committed and completed at a time when the accused was neither a national of that country nor domiciled there. According to section 4 of the Indian Penal Code and section 188 of the Code of Criminal Procedure, if at the time of the offence the accused was an Indian citizen, the Indian courts retain jurisdiction even if the offence occurred outside India, because citizenship carries jurisdiction irrespective of the venue. Conversely, if the accused was not an Indian citizen at the time of the offence, these provisions do not apply. The judgment also observes that the term “domicile” does not have an absolute definition; a simple definition is the place where a person’s habitation is fixed without any present intention to remove it. It is noted that while the concept can be illustrated, it cannot be exhaustively defined, and reference is made to the case Craignish v. Craignish ([1892] 3 Ch. 180, 192) for further illustration. The procedural posture of the appeal is that it is Criminal Appeal No. 90 of 1952, filed under article 134(1)(c) of the Constitution of India, challenging the judgment and order dated 28 November 1954 of the Punjab High Court in Criminal Revision No. 865 of 1951, which itself arose from the judgment dated 2 August 1951 of the Additional Sessions Judge, Rohtak, Gurgaon, in Criminal Revision No. 4 of 1951. The appellant was represented by counsel including the Attorney-General for India, while the respondent was represented by counsel for the appellant, and an intervenor, the State of Punjab, was also represented.
L. Mehta appeared for the respondent, while S. M. Sikri, the Advocate-General for the State of Punjab, was assisted by Jinder Lal and P. G. Gokhale in representing the intervenor, the State of Punjab. The judgment was dated 12 October 1954 and was delivered by Chief Justice Mehr Chand Mahajan. The appeal, taken on a certificate of leave from the High Court of Judicature at Simla, presented a novel question of law: whether a person charged with an offence under the Indian Penal Code, committed in a district that became part of Pakistan after the partition of India, could be tried by an Indian criminal court after he migrated to India and acquired Indian citizenship. The material facts were set out as follows. The respondent, Ram Narain, acted on behalf of his firm Ram Narain Joginder Nath, which carried on business at Mailsi in the Multan District. On 23 December 1946, shortly before the partition of British India, the Mailsi branch of the Central Bank of India Ltd., the appellant, granted the firm a cash-credit facility of three lakh rupees. The credit was secured by stocks that the borrowers were to retain in trust for the bank. By the date of the partition, 15 August 1947, the sum due to the bank from Ram Narain exceeded Rs 1,40,000, exclusive of interest, while the pledged goods were valued at approximately Rs 1,90,000. Following the communal disturbances that accompanied partition, the bank’s godown-keeper left Mailsi in September 1947 and the cashier, who had been left in charge, was forced to leave in October 1947, leaving no one to safeguard the bank’s godowns. In January 1948, Mr D. P. Patel, an agent of the bank’s Multan branch, visited Mailsi and discovered that the stocks pledged by Messrs Ram Narain Joginder Nath had disappeared. His inquiry revealed that eight hundred and one cotton bales pledged to the bank had been stolen and had been booked by Ram Narain for shipment to Karachi on 9 November 1947. Patel further found that Ram Narain had recovered a sum of Rs 1,98,702-12-9 as the price of those bales from a person identified as Durgadas D. Punjabi. The bank demanded the recovery of that amount from Ram Narain but obtained no payment. Consequently, the bank applied, under section 188 of the Criminal Procedure Code, to the East Punjab Government for a sanction to prosecute Ram Narain for the offences alleged to have been committed in Pakistan in November 1947 in respect of the cotton bales. By an order dated 23 February 1950, the East Punjab Government granted the sanction, authorising prosecution under sections 380 and 454 of the Indian Penal Code. At that time, Ram Narain was residing in Hodel, District Gurgaon, and was carrying on business under the name …
In accordance with the sanction granted by the East Punjab Government on 23 February 1950, the bank lodged a formal complaint against Ram Narain before the District Magistrate of Gurgaon on 18 April 1950. The complaint alleged violations of sections 380 and 454 of the Indian Penal Code as well as section 412 of the Code of Criminal Procedure. When Ram Narain appeared before the magistrate, he raised a preliminary objection, contending that at the material time he possessed Pakistani nationality and therefore the East Punjab Government lacked authority to issue a sanction under section 188 of the Code of Criminal Procedure read together with section 4 of the Indian Penal Code. The magistrate did not decide this objection immediately; instead, after both parties had presented evidence, the court heard arguments on the preliminary issue. The court thereafter overruled Ram Narain’s objection, finding that mere residence in Pakistan from 15 August to 10 November 1947 did not amount to the acquisition of Pakistani nationality. The court observed that Ram Narain had continuously intended to revert to Indian nationality, as demonstrated by his decision to send his family to India in October 1947, to wind up his business there, and to migrate permanently to India in November 1947 without returning to Pakistan thereafter. The court also noted the prevailing circumstances of communal insecurity, which compelled Hindus and Sikhs to seek refuge in India, a situation beyond Ram Narain’s control.
Subsequently, Ram Narain filed an application before the Sessions Judge of Gurgaon invoking sections 435 and 439 of the Code of Criminal Procedure, seeking to set aside the magistrate’s order and to have the charges against him dismissed. The Additional Sessions Judge rejected the application and upheld the lower magistrate’s decision. Ram Narain then appealed by filing a revision petition before the High Court of Punjab at Simla, which was ultimately successful. The High Court set aside the charges, holding that the trial conducted by the Indian magistrate was void for lack of jurisdiction because Ram Narain could not be regarded as an Indian citizen until he physically left Pakistan and entered India, notwithstanding his immediate settlement in Hodel after arriving in November 1947. The High Court further concluded that the Punjab Government, in February 1950, possessed no power to sanction prosecution under section 188 of the Code of Criminal Procedure for acts committed in Pakistan in November 1947. The court also rejected the bank’s contention that Ram Narain could be tried in Gurgaon for possession of the proceeds from the stolen cotton, which the bank characterized as stolen property. Leave to appeal to the Supreme Court was granted under article 134(1)(c) of the Constitution, and the sole question before the Supreme Court was whether, on a true construction of section 188 of the Code of Criminal Procedure and section 4 of the Indian Penal Code, the East Punjab Government had the authority to sanction prosecution of Ram Narain for offences committed in Pakistan prior to his migration to India.
In this appeal, the Court was asked to determine whether, on a proper construction of section 188 of the Criminal Procedure Code and section 4 of the Indian Penal Code, the Government of East Punjab possessed the authority to grant sanction for the prosecution of Ram Narain for offences that had been committed in Pakistan before he migrated to India. The Court first set out the wording of the relevant statutory provisions before and after their amendment. The portion of section 4 of the Indian Penal Code, as it stood before amendment, read: “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 language was altered to read: “Any citizen of India in any place without and beyond India.” The earlier version of section 188 of the Criminal Procedure Code stated: “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.” After the formation of the two Dominions, the provision was adapted to read: “When a British subject domiciled in India commits an offence at any place without and beyond all the limits of the provinces he may be dealt with in respect of such offence as if it had been committed at any place within the Provinces at which he may be found.” Following the 1950 amendment, the section was further revised to state: “When an offence is committed by- (a) any citizen of India in any place without and beyond India … 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.”
The Attorney-General argued that, at the time the East Punjab Government granted sanction for Ram Narain’s prosecution, he was already a citizen of India residing in Hodel. Accordingly, the Attorney-General submitted that Ram Narain could be tried in India because he was a citizen at that moment, even though the offences had been committed outside India, and that both section 4 of the Indian Penal Code and section 188 of the Criminal Procedure Code were fully applicable to his case. The Court, however, found this contention to be without merit. It held that the language of the two sections makes it clear that jurisdiction attaches only when the person who commits the offence is a citizen of India at the time the offence is committed. The rule embodied in the provisions is based on the principle that a citizen’s liability to Indian courts does not disappear merely because the offence occurs abroad. Conversely, if the offender was not an Indian citizen at the time of committing the act, the provisions do not apply at all. The Court emphasized that a foreign national could not be subject to the jurisdiction of British India for an offence that was both committed and completed outside British India.
In this matter, the Court considered the operation of section 4 of the Indian Penal Code as it existed before any amendments that were made after the partition of India. To explain the scope of that provision, the Court referred to Illustration (a) attached to section 4, which sets out a hypothetical situation to show the extent of the section. The illustration read: “(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.” The Court observed that if the person designated as A had not been a Native Indian subject at the time he committed the murder, then the provisions of section 4 of the Indian Penal Code would not apply to him. The Court further stated that a change in a person’s status after the offence—such as acquiring domicile in another country or obtaining the citizenship of that country—could not retrospectively give the courts of that country jurisdiction over an offence that was committed and completed when the person was neither a national of that country nor domiciled there.
The Court noted that the question of Ram Narain’s nationality was not the point that required determination. The essential issue was whether Ram Narain possessed an Indian domicile at the time he allegedly committed the offence. The Court explained that persons who were domiciled in India when the Constitution came into force were given the status of citizens and consequently acquired Indian nationality. Accordingly, if Ram Narain had been domiciled in India at the relevant time, he would fall within the ambit of section 4 of the Indian Penal Code and also within section 188 of the Criminal Procedure Code. Conversely, if he had not been domiciled in India at that moment, those statutory provisions would have no application to his case.
The Court turned to the law of private international law for guidance on the concept of domicile. It cited the view of scholars that an absolute definition of “domicile” is impossible to lay down. The Court quoted the simple definition offered by Justice Chitty in the case of Craignish v. Craignish, wherein the learned judge described domicile as “that place which is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom.” The Court acknowledged, however, that even this definition was not absolute. It explained that the term “domicile” lends itself more readily to illustration than to precise definition. Nevertheless, under English law, two essential elements were required for the existence of a domicile: first, a residence of a particular kind, and second, an intention of a particular kind. The Court described these as the “factum” and the “animus.” It clarified that the residence need not be continuous, but it must be indefinite and not merely fleeting. The intention must be a present intention to reside forever in the country where the residence has been established.
Finally, the Court affirmed the well-established proposition that a person may be without a home, but the law will not permit a person to be without a domicile. Even when a person has no fixed abode, the law may attribute a domicile to him in a particular territory. This principle ensures that nobody is left without a legal domicile for the purposes of jurisdiction.
The discussion began by observing that the law may attribute a domicile to a person even when, in fact, the individual does not physically reside in the territory that is assigned to him. The text illustrated this principle by referring to a vagrant, as described in the case reported at (1) [1892] 3 Ch. 180, 192, who might live aboard a yacht or wander from one European hotel to another; nevertheless, the law arbitrarily assigns such a person a domicile in a particular jurisdiction.
To give effect to the rule that nobody may be without a domicile, the legal system creates a “domicile of origin” for every person at the moment of birth. This original domicile continues to apply until the individual acquires a new domicile. The text explained that even if a person departs from his country of origin with a clear intention never to return, the domicile of origin remains attached to him until he actually settles in another country with the requisite intention to remain there permanently.
The High Court held that the petitioner, Ram Narain, had remained in the Multan District of West Punjab, the place where he and his ancestors had lived up to his migration to India. The Court rejected the argument that, because no Hindu or Sikh could plausibly remain in Pakistan, every such person must have been automatically bound to become an Indian subject merely by forming the intention to go to India, and that such a person was never, even for a moment, a subject of Pakistan. The Court observed that, although the majority of Hindus and Sikhs from Punjab did move to India, the exodus was not total, and in East Bengal a considerable number of non-Muslims had already become full citizens of Pakistan.
Based on these findings, the Court concluded that the only way a resident of the territories that became Pakistan could acquire Indian subject status was by physically arriving in India. Until such actual relocation occurred, the individual retained a Pakistani domicile, was not encompassed by the expression “Native Indian subject of Her Majesty” that took effect on 15 August 1947, and could not be described as an Indian citizen in November 1947.
The learned Attorney-General challenged this view, stressing several observations. He noted that the evidence left no doubt that Ram Narain never intended to stay in Pakistan for any length of time. He further asserted that Ram Narain had wound up his business as quickly as possible and had come to India later in November 1947, where he settled in Hodel. The Attorney-General also highlighted the fact that a trial magistrate and the Sessions Judge had relied on the circumstance that Ram Narain had sent his family to India in October 1947. However, the Court expressed the opinion that none of these facts conclusively demonstrated an intention on the part of Ram Narain to permanently remove himself from Pakistan and to establish residence in India. It has to be
In this case, the Court observed that during October and November of 1947 the minds of individuals were in a state of flux. The partition of India and the subsequent events in both Pakistan and India were without precedent, making it difficult to find any historical analogue for the circumstances that arose. The Court noted that the minds of people affected by the partition and residing in the affected areas were completely unsettled and unbalanced, and there was scarcely any opportunity for them to form the intention required to acquire domicile in either country. The Court further explained that persons repeatedly changed their plans from day to day as events unfolded; they moved back and forth, and families were transferred from one place to another for safety. Most of those displaced from West Pakistan did not have permanent homes in India to which they could move and take up residence. They instantly became refugees, living in camps either in Pakistan or in India. The Court stated that, in fact, at the moment of departure from Pakistan to India or vice-versa, no one conceived that the move would be permanent or that they were forever abandoning the place of their ancestors. The Court held that later policies of the Pakistan Government that prevented people from returning to their homes could not be considered when determining the intention of those who migrated at the relevant time. The Court observed that Ram Narain may well have sent his family to India for safety. As the learned Judge had pointed out, Ram Narain and his ancestors had lived in the Multan District, where he carried on a considerable business. The bank had extended to him a cash credit of three lakh rupees secured by goods. He also had some business in Hodel, but that was comparatively small. The Court found no evidence that he possessed any home in India, and saw no reason to go beyond the finding of the learned Judge that he and his ancestors had been residing in Mailsi. In these circumstances, the Court expressed that, if one may use the expression, Ram Narain’s original domicile lay in the district of Multan, and when that district became part of Pakistan after partition, his domicile remained in Pakistan until he expressed an unequivocal intention to abandon that domicile and acquire an Indian domicile, and also actually took up residence in India. The Court held that his domicile could not be determined merely by the fact that his family migrated to India, absent a finding that he himself had established a home there. Even if an animus to reside in India could be ascribed to him, the fact of residence was missing in his case; and in the absence of such fact, an Indian domicile could not be ascribed to Ram Narain. The Court further stated that any subsequent acquisition by Ram Narain of an Indian domicile could not affect the question of jurisdiction of the courts to try him for offences committed while he did not possess an Indian domicile. The Court then framed the question whether Ram Narain at the time of the commission of the offence was domiciled in India, and concluded that the answer could be given in only one way, namely that he was not domiciled in India.
According to the judgment, the decisive question was whether Ram Narain was domiciled in India at the time he committed the offence. The answer, as the Court explained, could only be that he was not domiciled in India. Consequently, the Court observed that he could not be deemed a citizen of India because citizenship under the Constitution had become effective only in January 1950. The record showed that he possessed no residence or home within the Dominion of India. While it was possible that he entertained an intention to move to India, the Court described that intention as indefinite and uncertain. No evidence was presented to demonstrate that, at the moment of the offence, he had definitively resolved to establish a permanent residence in India, and the Court stressed that such a matter could not be decided on conjecture. The judgment further noted that it is impossible to read a person’s mind, and even more difficult to assess how people’s minds functioned during the chaotic period surrounding the partition of 1947.
The learned Attorney-General contended that Ram Narain had been a native Indian subject of Her Majesty prior to 15 August 1947 and that this description continued to apply to him after that date, irrespective of whether he was physically in India or in Pakistan. The Court, however, rejected this argument. It held that the term “native subject of Her Majesty” after 15 August 1947 applied only to individuals who were residents of provinces within the newly defined boundaries of India, and similarly applied in Pakistan only to residents within its own boundaries. Accordingly, until Ram Narain actually set foot on Indian soil and established a permanent residence there, he could not be described as domiciled in India nor as a native Indian subject of His Majesty domiciled in India.
For these reasons, the Court affirmed the decision of the High Court that Ram Narain could not be tried by any Indian court for offences committed in Mailsi in November 1947. It also concluded that the Provincial Government lacked authority under section 188 of the Criminal Procedure Code to grant sanction for his prosecution. As a result, the appeal was dismissed, and the order of the High Court stood.