ORDER
N.C. Talukdar, J.
1. This Rule is for setting aside an order dated the 24th April, 1968 passed by Sri K.J. Sengupta, Chief Presidency Magistrate, Calcutta, holding that a prima facie case was made out against the accused-petitioner, Sri Bijoyanand Patnayah, and framing charges against him under Section 406 I. P. C. on two counts, in case No. C/1023 of 1967 and for quashing the said proceedings.
2. The facts leading on to the present Rule are chequered but can be put in a short compass. The prosecution case brings to light an unfortunate case of a friendship foundering on two airships. The bone of contention between the two parties, both of whom are respectable and were erstwhile friends, is two aircrafts viz. VT-CRA & VT-CXR, which originally belonged to M/s. Indamer and Company (P) Limited, Customs House Road, Bombay. The prosecution case inter alia is that Capt. Brinnand (P. W. 4) the husband of the present complainant, Mrs. K.A.A. Brinnand (P. W. 1), purchased the abovementioned two aircrafts on the basis of an agreement of hire-purchase (Ext. 4), entered into on the 26th October. 1954 for a sum of Rs. 3,42,300/-payable in instalments. It was agreed that on payment of the abovementioned amount in full, Capt. Brinnand will become the absolute owner of the aircrafts. The final payment was made on the 6th August, 1965 with the sum of Rs. 20,000/-which was the amount then due, to M/s. Indamer and Company (P) Ltd. through one of its directors, Mr. J.P. Koszarekas per Ext 6. Capt. Brinnand however having no operating licence or permit standing in his name for operating the aircrafts purchased by him as per the terms of the deed of agreement mentioned above, another agreement was entered into between him and M/s. Indamer and Company (P) Limited on the basis of a letter (Ext. 7), whereby the latter company allowed its chartered permit to be used by Capt. Brinnand on payment of a licence fee of Rs. 20,000 per year. The prosecution case further is that in the absence of an operating licence, the ownership of the two aircrafts also could not be changed from the name of M/s. Indamer and Co. (P) Limited to Capt Brinnand's name in the certificate of registration, kept in the Civil Aviation Department, Govt. of India. The licence pi M/s. Indamer and Company (P) Limited in the meanwhile was cancelled by the authorities because of some irregularities in the working of the said company and Capt. Brinnand out of his anxious consideration that the two aircrafts purchased by him did not remain idle, came into contact with Shri Bijoyanand Pattanayak for making arrangement for the operation thereof, on the strength of the operating licence or permit for non-scheduled flight of the aircrafts standing in the name of the Kalinga Air Lines, whereof Sri Pattanayak was the proprietor. An agreement (Ext. 11) accordingly was executed on the 1st March, 1958 between Sri Pattanayak and Capt. Brinnand on certain terms whereby Sri Pattanayak allowed Capt Brinnand to use the operating licence, standing in the name of the Kalinga Air Lines, without taking any profit as the said licenses were remaining idle. As the two aircrafts stood in the name of M/s. Indamer and Company (P) Limited in the register of the Civil Aviation Department, Capt. Brinnand made arrangements to transfer the same to the Kalinga Air Lines (P) Limited, which in the meanwhile had come into existence. M/s. Indamer and Co. (P) Limited, agreed to allow the Kalinga Air Lines (P) Ltd. on the basis of an agreement (Ext. 12) dated the 1st March, 1958, to use six of their aircrafts including VT-CXR. With regard to the aircraft VT-CXR, it was agreed that the Kalinga Air Lines (P) Limited would not have to pay anything for its user. On the same date M/s. Indamer and Company (P) Limited wrote a letter to M/s. Kalinga Air Lines (P) Limited expressing their willingness to sell the Dakota aircraft, VT-CRA for Rs. 40,000. No consideration, however, was passed in the alleged sale of the said Dakota aircraft VT-CRA as would be borne out by Exts. 13 and 34 and it was merely a paper transaction. In order to produce the aircraft before the Director of Civil Aviation at New Delhi for the transference of the name of the owner in respect of the same, the documents were required for allowing the party to use the operating licence or permit which stood in the name of the Kalinga Air Lines, subsequently changed to Kalinga Air Lines (P) Limited. In course of time, on the 12th April, 1960, Capt. Brinnand was authorised to deal with all matters belonging to the Kalinga Air Lines (P) Limited as is evident from a resolution (Ext. 15) passed at a meeting of the Board of Directors of the said company. Ext. 17 is an agreement dated the 23rd May, 1960 between M/s Indamer and Company (P) Limited on the one hand and M/s Kalinga Air Lines (P) Limited, represented by Capt. Brinnand on the other, described as the hirer, and it shows that three aircrafts belonging to M/s Indamer and Company (P) Limited were lent to the Kalinga Air Lines (P) Limited for their use and that the hire charges of those three aircrafts being VT-DGR, VT-DGX and VT-DFJ were fixed at a sum of Rs. 12,37,500 for three years. This was also described by the prosecution to be a paper transaction. Capt. Brinnand worked in the Kalinga Air Lines (P) Limited upto 10th August, 1967 and thereafter cut off all connections with the said organisation and called upon Sri Pattanayak to return back his aircrafts VT-CRA and VT-CXR which were entrusted with him. On Sri Pattanayak's refusal to do the same, the petitioner filed a petition of complaint before the learned Chief Presidency Magistrate, Calcutta on the 17th April, 1967 against the two accused persons viz., Mr. 3, P. Koszarek and Sri Bijoyanand Pattanayak, under Section 406, I. P. C. The complainant was examined by the learned Chief Presidency Magistrate, Calcutta on the 17th April, 1967 and the case was sent for judicial enquiry by Sri A. Sengupta, Presidency Magistrate, 5th Court, Calcutta, fixing 1-6-67 for report. The learned enquiring Magistrate thereafter recorded evidence and ultimately submitted a report, holding that there was a prima facie case under Section 406 I. P. C. against the accused No. 2, Sri Bijoyanand Pattanayak. The learned Chief Presidency Magistrate, Calcutta, thereupon by his order dated the 7th June, 1967, issued process against Sri Bejoyanand Pattanayak under Section 406 I. P. C. 9 witnesses thereafter were examined on behalf of the prosecution to unfold the occurrence and several documents were proved both on behalf of the prosecution and the defence and as a result of the trial the learned Chief Presidency Magistrate by his order dated the 24th April, 1968 held that a prima facie case was made out for framing charges against the accused-petitioner and he accordingly framed against him charges under Section 406 I. P. C. on two counts but he rejected, however, the prayer made on behalf of the complainant for issuing process against the co-accused Mr. Koszarek, on the ground of a purported conspiracy between the two accused, for a criminal breach of trust in respect of the two air-crafts. The said order has been impugned and forms the subject matter of the present Rule.
3. Mr. Ajit Kumar Dutt, Advocate (with Mr. Milan Kumar Banerjee, Barrister-at-law, Mr. Amiya Kumar Mukherjee, Advocate and Mr. Birendra Nath Banerjee, Advocate) appearing on behalf of the accused-petitioner Sri Bijoyanand Pattanayak in support of the Rule, has made an eight-fold submission. The first contention of Mr. Dutt relates to jurisdiction and goes to the very root of the case. Mr. Dutt submitted that neither entrustment nor conversion having taken place within the territorial jurisdiction of the learned Chief Presidency Magistrate's Court, the present proceedings are bad in law and without jurisdiction and as such should be quashed. The second contention of Mr. Dutt relates to procedure and is that an erroneous view of Section 254 of the Code of Criminal Procedure having been taken, the resultant proceedings are bad and repugnant. The third contention of Mr. putt is about the inordinate delay in lodging the present complaint, ten years after the incident and six years after the civil suit. The fourth point urged by Mr. Dutt relates to the merits. Mr. Dutt has submitted in this context that the petition of complaint does not disclose any criminal offence, far less offence under Section 406 I. P. C. No entrustment within the meaning of Section 405 I. P. C. has been alleged in the petition of complaint and there is also no averment regarding the delivery of the aircrafts in Calcutta or of conversion thereof, in the said place. The fifth contention of Mr. Dutt is that the charge of criminal breach of trust is not sustainable on the evidence on record and in this context he referred to the evidence of P. Ws. 1 and 4 as also the averments made in the petition of complaint. Mr. Dutt's sixth submission relates to the pendency of the civil suit and its effect upon the present criminal proceedings. He contended that at best the dispute is one of civil nature and should properly be determined in a different forum. Mr. Dutt next contended that the petition of complaint being based upon a suppression of material facts and the processes having been issued on the said basis, the present proceedings are not maintainable in law. The eighth and the last submission of Mr. Dutt is that neither the complainant nor her husband is the competent person to institute the present criminal proceedings inasmuch as, amongst others, the husband, Capt. Brinnand is not even the registered owner of the two aircrafts. In thiscontext Mr. Dutt referred to Sections 5 and 33 of the Indian Aircrafts Rules, 1937. Mr. J. P. Mitter, Counsel (with Mr. Promode Ranjan Roy, Advocate^ appearing on behalf of the complainant-opposite party, Mrs. K. A. A. Brinnand, contended in the first instance that the first point in the nature of a preliminary objection raised by Mr. Dutt as to the jurisdiction is more technical than real and is notwarranted upon ultimate analysis. In view of the averments made in the petition of complaint as also the statements made in the evidence, the proceedings are quite competent and within jurisdiction. Mr. Mitter submitted in this connection thatneither the entrustment nor the conversion as alleged, having taken place outside the territorial jurisdiction of the learned Chief Presidency Magistrate's Court,there is no bar in law to the maintainability of the present proceedings in the said court. Mr. Mitter next contended thatthere is no defect in procedure as alleged or at all and that there has been no non-conformance to the provisions of Section 254 of the Code of Criminal Procedure. The learned Magistrate has not overlooked the statements made by the prosecution witnesses in cross-examination in framing the charges and the same would be evident from the findings arrived at in the judgment itself. Mr. Mltter's third submission relates to the objection raised on behalf of the accused-petitioner to the maintainability of the present proceedings on the ground of inordinate delay. He submitted that the said delay isnot for a period of ten years as alleged and that it is due to an attempt to settle the matter in dispute because of the friendship that existed originally between the two parties. In this context, he further urged that there being no limitation to the institution of a criminal proceedings, the delay alleged is not in any way fatal to the same. Mr. Miner's fourthcontention is that the submissions made by Mr. Dutt relating to the merits of the case are premature and that the statements made in the petition of complaint do disclose a criminal offence while the evidence adduced by the material prosecution witnesses doesmake out the offence of criminalbreach of trust as charged. Mr. Mitter submitted in this context that both entrustment and dishonest conversion have been proved by cogent evidence as havingtaken place within the jurisdiction of the court of the learned Chief Presidency Magistrate Calcutta. In this context forestablishing entrustment, Mr. Mitter referred to Exts. 9, 11, 12, 13, 17, 18, 21,22, 27 and 38 as also to the evidence of P. Ws. 4 and 9. As to the sixth submission of Mr. Dutt regarding the effect of the civil suit on the present criminal proceedings, Mr. Mitter submitted that both the accused are not parties thereto and the relief prayed for is also different. In any event, it was contended, that there is no bar in law to such an institution. Mr. Mitter next contended that there has been no suppression of material facts by the complainant either in the petition of complaint or in the evidence, as alleged or at all and that the complainant had been merely trying her utmost to establish the lawful claim of her husband, and that the resultant proceedings are but an aggrieved person's odyssey in quest of his rights. Mr. Mitter lastly contended that the objection raised by Mr. Dutt to the locus standi of the present complainant or her husband to institute the criminal proceedings is clearly unfounded inasmuch as the evidence on record would establish that Capt. Brinnand is the owner of the two aircrafts. To prove the same, Mr. Mitter referred to the evidence of P. Ws. 1, 4 and 6 and also exhibits 4, 5, 5/1, 6, 7, 18, 31 and 32. Mr. Mitter in this context referred also to the provisions of Sections 19 and 33 of the Sale of Goods Act and certain circumstances wherefrom the knowledge of the accused regarding the ownership of Capt. Brinnand might reasonably be inferred. Besides meeting the points raised by Mr. Dutt as above, Mr. Mitter also made a broad submission that the quashing of a criminal proceeding is an extraordinary procedure and should not be resorted to in the facts and circumstances obtaining in the present case. In this context Mr. Mitter further urged that the claims of aggrieved persons may not be scotched on technical grounds at an early stage, instead of being determined by a full-fledged trial.
4. Mr. J.M. Banerjee, Advocate, appearing on behalf of the State opposed the Rule and broadly adopted the submissions made on behalf of the complainant opposite-party by Mr. J. P. Mitter. He also made some further submissions. On the question of jurisdiction Mr. Banerjee submitted that the evidence on the record establishes the factum of entrustment within the jurisdiction of the court of the learned Chief Presidency Magistrate, Calcutta and even if no conversion could be proved within the said jurisdiction, it will not render the ultimate proceedings taking place there under Section 406 I. P. C. to be bad and without jurisdiction. Mr. Banerjee in this context further contended that even if such jurisdiction was not established in the petition of complaint, the objection to the same is merely academic at this stage when theprosecution has led material evidence, both oral and documentary establishing such jurisdiction. On the point of delay, Mr. Banerjee contended that there is no bar in limine to the institution of a criminal proceeding because of any purported limitation and even if there was any such delay, it is for the learned trying Magistrate to determine the same. Mr. Banerjee finally contended that no case has been made out on behalf of the defence either under Section 253(1) or under Section 253(2) of the Code of Criminal Procedure and that even if the petition of complaint disclosed no offence, as alleged or at all, now that evidence has been taken, the said objection is unwarranted and untenable and the dominant consideration should be whether such evidence has made out the charges framed. In reply, Mr. Mitter further contended that the evidence on record establishes the offence of conspiracy between Sri Bejoyanand Pattanayak and Mr. J.P. Koszarek and if the same be taken into consideration, the present proceedings will not be bad for absence of jurisdiction and will certainly be maintainable in the court of the learned Chief Presidency Magistrate, Calcutta. Mr. Dutt, however, contended in the first place that not only was this point taken either in the court below or even in the arguments advanced in this court before now, but also the same is wholly untenable on merits and unwarranted by any procedure enjoined by law. The steps of Mr. Dutt's reasoning in this context are inter alia that even regarding Mr. Koszarek, no abetment was alleged in the petition of complaint and also no conspiracy; that the element of any conspiracy is non est in the present case and is even ruled out by the materials on the record; that Sri B. Pattanayak was discharged of the charge under Section 406/114 I. P. C. and has not even been impleaded in the other Rule, being Criminal Revision Case No. 508 of 1968, pending against Mr. Koszarek; that there will be apparently legal difficulties because at this stage no trial is possible in this case, also on the charge under Section 120B I. P. C. of Mr. Koszarek alone or along with Sri Pattanayak; that at this stage when no charge was framed against Mr. Koszarek, he cannot be tried under Section 120B/406 I. P. C. along with Sri Pattanayak in the same case unless and until everything is washed cut including the present charges framed; and that even if any charge could be deemed to be tenable against Mr. Koszarek either under Section 406/114 I. P. C. or under Section 120B/406 I. P. C., he cannot be tried along with Sri Pattanayak in this case, excepting in a new trial.
5. Having heard the learned counsel appearing on behalf of the respectiveparties and on going through the evidence, oral and documentary, which Ihave been taken through, I will take up for determination, in the first instance, the point raised on behalf of the accused-petitioner, relating to jurisdiction, as it goes to the very root of the case. Jurisdiction is the very foundation of the case; it is the plinth whereupon rests the entire superstructure of the proceedings. Any order passed in a case, vitiated by the absence of jurisdiction, will be a nullity. As their Lordships of the Judicial Committee held in the case of Yusofalli Mulla Noorbhoy v. King that even an order of acquittal passed in a case without jurisdiction would not be binding even if it is not appealed against and set aside-Sir John Beaumont delivering the judgment of the Judicial Committee observed that 'but if the orders were a nullity there was nothing to appeal against'. Chapter XV of the Code of Criminal Procedure deals with the jurisdiction of the criminal courts in enquiries and trials. Section 177 of the Code of Criminal Procedure apparently adopts the Common Law of England that all crimes are local and justiciable only by the local courts within whose jurisdiction they are committed. The Lord Chancellor. Lord Halsbury delivering the judgment of the Judicial Committee in the case of Muhammad Yusuf-Ud-Din v. Queen-Empress, (1898) ILR 25 Cal 20 (PC) observed at page 30 that: 'It is important to observe this because crime is in its essential nature local'. The General Rule of Lex fori as contained in Section 177 of the Code of Criminal Procedure is modified by the exceptions or alternatives provided for in the following sections under Chapter XV of the Code of Criminal Procedure. In the Full Bench case of Charu Chandra Majumdar v. Emperor reported in ILR 44 Cal 595 = (AIR 1917 Cal 137) (FB), Sir Asutosh Mukherjee observed at page 621 that 'section 177 formulates the general principle that the ordinary place of enquiry and trial is the court within the local limits of whose jurisdiction the offence is committed . . . Sections 179-84 embody provisions in the nature of exceptions or alternatives to Section 177'. For properly appreciating the point raised, it will be pertinent to refer to Section 181(2) of the Code of Criminal Procedure which is as follows: 'The offence may be tried by the court within whose jurisdiction -- (i) any part of the property was received by the accused, or (ii) was retained by him, or (iii) the offence was' committed.' There was at one stage a cloud raised over the interpretation of the above mentioned provision by the conflicting decisions of the different High Courts, as also of other courts but the same hassince been lifted by a series of recent decisions and I would refer only to a few of those to avoid repetition. The starting point of one school of thought appears to be the case of Reg v. Davison and Gordon decided by Baron Alderson and Coleridge J. as reported in (1855) 7 Cox C. C. 158. Baron Alderson observed therein at pp. 162-163 that 'where there is no evidence of fraudulent embezzlement except the non-accounting the venue may be laid in the place where the non-accounting occurred, because the jury may presume that there the fraudulent misappropriation was made, but this cannot apply where there is distinct evidence of the misappropriation elsewhere'. The aforesaid case was discussed at great length in a Division Bench decision of this court reported in : AIR1942Cal575 by Mr. Justice Blagden, who ultimately observed that the learned Baron 'was dealing with the Common Law of England which at that date almost wholly regulated English criminal procedure, and our law of procedure is codified.' and that 'there is no justification for holding that the English law is the law of Bengal.' I agree with the said observations of Mr. Justice Blagden and I hold that the above-mentioned observations of the Lord Baron were made in a different context while dealing with the statutory offence of embezzlement and that our law of procedure being codified, the English law on the point should not be taken as a precedent for interpreting the relevant Indian law. There are also some cases of the different High Courts in India supporting this other school that the failure to render account at a particular place provides an alternative venue for a trial of the case therein and to avoid repetition a reference may be made to some of these cases. In the case of Gunananda Dhone v. Lala Santi Prokash Nanley, decided by Mr. Justice Suhrawardy and Mr. Justice Mukerii and reported in : AIR1925Cal613 . Mr. Justice Mukerji delivering the judgment of the court observed at page 437 that 'where the accused is under a liability to render accounts at a particular place and fails to do so by reason of having committed an offence of criminal breach of trust which is alleged against him, the Court within the local limits of whose jurisdiction that place is situate, may inquire into and try the offence under the provisions of Section 181, Sub-section (2), Cr. P. C.'. The next case is the case of Paul De Flonder v. Emperor reported in : AIR1931Cal528 decided by Mr. Justice Lort-Williams and Mr. Justice S.K. Ghose. Mr. Justice Lort-Williams delivering the judgment of the court approved of the decision in the case of G. N. Pascal v. Raj Kishore Mathur reported in AIR1931 Cal 521 and dissented from the decisions reported in 29 Cal WN 432 and in 26 Cal WN 175 = (AIR 1922 Cal 46(1)) and observed at page 815 of (35 Cal WN) = (at page 531 of AIR) that : 'If there is no evidence to show where the misappropriation was committed other than the fact of non-accounting then the venue may be laid in the place where the accused failed to account, because that is where the offence was committed within the meaning of Section 181 (2) -- R. v. Davison and Gordon, (1855) 7 Cox C. C. 158.(6)'
The next case on the point is the case of Prokash Chandra Sircar v. Mohim Chand Haldar reported in : AIR1934Cal392 wherein Mr. Justice Mukherji and Mr. Justice S. K. Ghose held that where there is no definite allegation of misappropriation having been committed, in any particular place, in respect of a sum which forms the subject-matter of a case, but the allegation is merely of non-accounting in respect of the sum, failure to account may itself be taken as evidence of intention to misappropriate and the offence of misappropriation is deemed to have been committed at the place at which the accused ought to have rendered the accounts. In the case of Sheo Shankar v. Mohan Sarup reported in AIR 1921 All 12 (FB), the Full Bench of the Allahabad High Court held that where the duty to account was at a certain place and the misappropriation is made at another place, the offence can be tried at the place where account was to be given. In a more recent decision in the case of S. Arunachala Goundan v. K.S. Akhileshwara Ayyar, reported in : AIR1952Mad158 Mr. Justice Ramaswami held that where the charge is of non-accounting and there is no specific allegation of misappropriation in any particular place the venue of the trial will be the place where the accounting has got to be done and has not been done. The view taken in the abovementioned group of cases has been negatived in another group of cases and the position in law, as held in the latter group of cases is now well settled, A reference in this context may be made to the case of In re; Jivandas Savchand reported in AIR 1930 Bom 490 (FB), wherein Chief Justice Beaumont after considering the various decisions of the different High Courts observed at page 495 that 'the jurisdiction to try an offence of criminal misappropriation or criminal breach of trust is governed by Section 181, Sub-section (2), and not by Section 179 ......But where the offence is completed at one place, the further liability to render accounts at another place and failure in rendering such false accounts at the second place does not confer jurisdiction under Section 179 upon the Magistrate atthe latter place since the offence is already completed at the former place'. A reference again may be made to the case of Daityari Tripatty v. Subodh Chandra Chowdhury, reported in : AIR1942Cal575 . Mr. Justice Blagden, delivering the judgment of the court after considering different decisions by the various High Courts including the Full Bench decision of the Bombay High Court reported in AIR 1930 Bom 490 (FB) observed at page 577 that 'neither failure to account for breach of contract, however dishonest, is actually and in itself the offence which Section 405, Penal Code defines, but merely evidence of that offence.' In a latter decision of this Court in the case of Debendranath Sen v. Rajendra Chandra Roy, reported in : AIR1955Cal498 , Mr. Justice S. R. Dasgupta (as his Lordship then was) and Mr. Justice Mullick approved of the decisions by the Bombay Full Bench as also by Mr. Justice Lodge and Mr. Justice Blagden of the Calcutta High Court, Mr. Justice S.R. Dasgupta, delivering the judgment of the court, observed at pages 498-499 that 'on consideration of the said provisions of the criminal procedure it appears to us that the offence of criminal misappropriation or criminal breach of trust can be inquired into or tried by a court within the local limits of whose jurisdiction any part of the property was received or retained or the offence was committed.' I respectfully agree with the said observations and I hold that an offence of criminal breach of trust is not triable at a place where neither the factum of entrustment nor the positive act of conversion had taken place, because an offence of criminal breach of trust always consists in an act and not in an omission. A further reference in this connection may be made to the decision of the Supreme Court in the case of State of Madhya Pradesh v. K.P. Ghiara, reported in AIR 1957 SC 196. It was observed therein by Mr. Justice Govinda Menon, delivering the judgment of the court, that 'the venue of enquiry or trial of a case like the present is primarily to be determined by the averments contained in the complaint or charge-sheet and unless the facts there are positively disproved, ordinarily the court, where the charge-sheet or complaint is filed, has to proceed with it, except where action has to be taken under Section 202 of the Criminal Procedure Code.' I respectfully agree with the same and I have taken into my view the averments made in the petition of complaint and the evidence for the purpose of the said consideration. I will now proceed to consider the further contention raised by Mr. J. P. Mitter, in reply, that in any event, in view of the evidence on the record, a charge of conspiracy to commit the offence of criminal breach of trust has been made out between the present petitioner and the co-accused. Mr. J.P. Koszarek and as such because of the said charge of conspiracy, the jurisdiction for trying the case will be before the learned Chief Presidency Magistrate, Calcutta. I find, however, on ultimate analysis that the said contention is not tenable and the reasons for the same can be catalogued hereunder. In the first instance it will appear from the petition of complaint that the charge against the petitioner Sri B. Pattanayak is only under the substantive offence of Section 406, I. P. C. and no conspiracy is alleged so far as he is concerned. The allegation of conspiracy in paragraph 9 is to be read along with that made in paragraph 11 of the said complaint and the same amounts to, at the highest, a conspiracy regarding abetment. In this context, it would be pertinent to refer to the expression 'conspiracy' as it occurs in Section 107 of the Indian Penal Code, denning the abetment of a thing, for a proper interpretation. Offences created by Sections 109 and 120B I. P. C. are quite distinct. As was held by Mr. Justice Mudholkar delivering the judgment of the court in the case of the State of Andhra Pradesh v. Kandimalla Subbiah, reported in : 1961CriLJ302 that there is no analogy between Section 120B and Section 109 I. P. C. There may be an element of abetment in a conspiracy but conspiracy is something more than an abetment. Conspiracy to commit an offence is itself an offence and a person can be separately charged with in respect to such conspiracy. I respectfully agree with the said observations and I hold that an offence created by Sections 109 and 120B I. P. C. are quite distinct and accordingly the statements made in the petition of complaint do not make out a case of a conspiracy under Section 120B I. P. C. The next point that cannot be overlooked is that even after the judicial enquiry and the evidence adduced therein, the learned enquiring Magistrate did not recommend any process against Mr. Koszarek under Section 406/114 I. P. C. and the complainant also did not come up against the same so far as Mr. Koszarek is concerned or even against Sri B. Pattanayak because he was not summoned under Section 120B I. P. C. It is pertinent again to refer to the application dated the 4th November, 1967, filed on behalf of the complainant after the principal witnesses were examined, praying that Mr. Koszarek may be summoned under Section 120B /406 I. P. C. and the order that was passed therein rejecting it. The Court was not moved against the said order of rejection nor was any prayer made under Section 227 of the Codeof Criminal Procedure for adding a charge against Sri Pattanayak under Section 120B read with Section 406 I. P. C. The sanction that was prayed for is under Section 196A of the Code of Criminal Procedure but no application is there for adding a charge against Sri Pattanayak. On the 27-3-1968 again, when a second application in that behalf was filed praying for a process against Mr. Koszarek for being tried along with Sri Pattanayak, and an order was passed thereupon, there is significantly no prayer made for adding such a charge under Section 227 of the Code of Criminal Procedure. It is material again to note that on the 24th April, 1968, when the application for a process against Mr. Koszarek was rejected, the complainant moved against a part of the said order viz.. the refusal to summon Mr. Koszarek and did not move against any refusal to add a charge against Sri Pattanayak under Section 120B/406, I. P. C. In the other Rule again, against Mr. Koszarek and others, Sri Pattanayak was not made a party. In short, at no stage was any prayer made against Sri Pattanayak under Section 120B, I. P. C. or any prayer for the addition of such a charge under Section 227 Cr. P. C. I find also no offence of conspiracy in the evidence, either oral or documentary and the learned Chief Presidency Magistrate, Calcutta is right in holding that it is non est. P. W. 1 does not refer to any allegation of conspiracy and P. W. 4 follows suit. The documents proved again do not make out any conspiracy. The facts referred to therein are in course of usual business and do not constitute any overt acts, germane to the issue of a conspiracy. Ext. 'K' was sworn at Bombay and the Kalinga Air Lines besides having its head office at Cuttack, has, amongst others, an office at Bombay. I hold therefore that this ancillary contention of Mr. Mitter is not only belated but is also unwarranted and untenable on merits and that on the ground of a purported conspiracy between Mr. Koszarek and Sri Pattanayak, the court of the learned Chief Presidency Magistrate, Calcutta cannot be held to have the requisite jurisdiction. On a perusal therefore of the petition of complaint and the averments made therein as also on an appraisal of the evidence on record, and on a consideration of the submissions made by the learned counsel appearing on behalf of the respective parties, I ultimately hold that the venue of the trial of the instant case is not the Court of the learned Chief Presidency Magistrate, Calcutta and accordingly the proceedings pending there are vitiated by the absence of any jurisdiction. The stage also at which this objection to jurisdiction has been taken, is the proper stage. A reference in this context may be made to the observations of Mr. Justice Jagannadhadas, delivering the judgment of the Court, in the case of H. N. Rishbud v. State of Delhi, reported in : 1955CriLJ526 that 'when the attention of the court is called to such an illegality at a very early stage, it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Section 537, Cr. P. C., of making out that such an error has in fact occasioned a failure of justice.' The first contention raised by Mr. Dutt relating to jurisdiction accordingly succeeds.
6. The only other point that abides determination is the ancillary ground viz., the concept of liberal consideration or a broad approach to issues involved, as pinpointed by Mr. J, P. Mitter. The learned counsel has contended that the spirit of law enjoins some remedy for the claims of unsophisticated persons, bona fide aggrieved, and the same should not be brushed aside on hypertechnical grounds. The complainant in a criminal case, according to Mr. Mitter, is as much a part of the proceedings as the accused is and his interests should not be equated at a lower level. The said submission is true to a degree but cannot overstep the bounds of the principles laid down by law, enjoining a benefit of doubt to be given to the accused and not to the prosecution, apart from the presumptions of innocence and the standard of proof required. The point, however, need not be weighed in golden s as it ultimately does not arise out of the facts and circumstances of the present case. The point involved here is not of a liberal consideration but one of a proper construction of the law, relating to jurisdiction which transgressed, must render the proceedings into a nullity. I have given my anxious consideration to the submissions of Mr. Mitter, but I am unable to overlook the non-conformance made to the mandatory provisions of law, relating to jurisdiction vitiating the entire proceedings. Mr. Mitter has ultimately pressed his case on the grounds of justice. There appears to be however no chemistry of justice when in the context of the Judicial Reforms in England, Bentham posed the question: 'Does justice require less precision than chemistry?' It could only be answered on the footing that 'the precision attainable in the one case, is of a nature which the other does not admit.' Justice may not be as precise as chemistry but nonetheless it must be in accordance with law and as has been observed by Francis Bacon 'Judges ought to remember that their office is jus dicere and jus dare; to interpret law, not to make law or give law.' Applying the said yardstick to the facts of this case and in con-formance to the provisions of the law relating to jurisdiction, as incorporated in Section 181(2) of the Code of Criminal Procedure. I hold ultimately that the present proceedings under Section 406 I. P. C. are vitiated by the absence of jurisdiction.
7. In view of the findings arrived at on the first point, it is not necessary for me to enter any further into the merits of the case and determine the other points raised and I accordingly refrain from doing so. I however make it quite clear that I make no observations as to the merits of the case, relating to the charge under Section 406, I. P. C. Before I part with the case, I must also observe that both Mr. Ajit Kumar Dutt and Mr. J. P. Mitter, the learned Counsel appearing on behalf of the respective parties, placed their cases very ably and assisted this court to come to a proper decision.
8. In the result, I make the Rule absolute; and I quash the impugned order dated the 24th April, 1968 passed by Sri K. J. Sengupta, Chief Presidency Magistrate, Calcutta, as also the relative proceedings, being case No. C/1023 of 1967, pending before the learned Magistrate, as without jurisdiction.