criminal appellate jurisdiction criminal appeal number00 of
1993.
from the judgment land order dated 3.6. 1992 of the punjab
and haryana high companyrt in criminal revision number 443 of 1990.

chadambaram mukul rohtagi ms. bina gupta and ms. monika
mohil for the appellants. n. goswamy y.d. mahajan and n.d. garg for the respondent. the judgments of the companyrt were delivered by

ramaswamyj special leave granted. the appellant accused number 2 in p.ch.  cbi  number 40/2 dated
february 18 1985 f.i.r. number rc number 2 to 4/1983 dated march
41983 and p.s. spe cbi ctu  e  i new delhi dist. delhi
and four other namely v.p. anand baldev raj sharma bansi
la and ranjit kumarmarwah are accused in the said case. it
is the prosecution case that the accused hatched a
conspiracy at chandigarh to cheat punjab national bank for
shortpnb . in furtherance thereof v.p. anand floated three
new link enterprises and m s. moonlight industries in the
name of baldev raj sharms his employee and m s. guru nanak
industries in the name of bansi lal yet anumberher employee. he opened current accounts in their respective names in the

n.b. at chandigarh. in furtherance of the companyspiracy and
in companyfabulation with v.p. anand the appellant ajay
aggarwal a number-resident indian at dubai who is running m s.
sales international dubai agreed to and got credit
facility by way of foreign letters of credit number. 4069-p
4070-p and 4084-p issued proforma invoices of the said
concern and addresses to pnb through guru nanak industries
and new link enterprises. ranjit marwah the 5th accused
manager of p.n.b. in-charge of foreign exchange department
confabulated with the accused issued foreign letter of
credit in violation of import policy. the bills of lading
were addressed to pnb at chandigarh.the cable companyfirmation
of p.n.b. was sent to m s sales international by p.n.b. chandigarh for companyfirmation of discrepancy. the appellant
had companyfirmed companyrectness thereof in the name of v.p. anand. placing reliance thereon authority letter was issued by

n.b. chandigarh and cables were sent subsequent thereto
to remit the amounts to emirates national bank limited through
irving trust companypany. v.p. anand was present on september
16 1981 at dubai and at his instance the emirats national
bank dubai informed the

n.b. chandigarh that the discrepancy in the document
adeptable to v.p. anand and claimed to have inspected the
goods on board in vessel m.v. atefeh. on receipt of the
information from the sales international dubai full amount
in us dollars 4 39200 was credited against all the three
letters of credit on discount basis. during investigation
it was found that vessel m.v. atefeh was a numberexistent one
and three foreicn letters of credit were fabricated on the
basis of false and forged shipping documents submitted by
the appellant ajay aggarwal to the emirates national bank
dubai. thus the p.n. b. was cheated of an amount of rs. 4030329. accordingly charge sheet was laid against the
appellant. and others for offences punishable under sections
120b read with sections 420  cheating  468  forgery  and
471 using as genuine  forged documents  i.p.c. the chief
judicial magistrate chandigarh by his order dated january
11 1990 discharged all the accused of the offences on the
ground that companyspiracy and the acts done in furtherance
thereof had taken place outside india and therefore the
sanction under section 188 criminal procedure companye 1973 for
short the companye is mandatory. since numbersuch sanction was
produced the prosecution is number maintainable. on revision
the high companyrt of punjab and haryana in criminal revision
number 443 of 1990 by order dated june 3 1992 held that the
conspiracy had taken place at chandigarh. the overt acts
committed in pursuance of that companyspiracy at dubai
constituted offences under sections 420 467 and 471

p.c. are all triable at chandigarh without previous
sanction of the central govt. the order of discharge
therefore was set aside and the appellant and other accused
were directed to be present through their companynsel in person
in the trial companyrt on july 171992 to enable the companyrt to
take further proceedings in accordance with law. this
appeal has been filed by the appellant alone under art. 136
of the companystitution. sri chidambaram learned senior companynsel companytended that the
appellant was number a privy to the companyspiracy. he was an

i.r. businessman at dubai. he never visited chandigarh. even assuming for the sake of argument that companyspiracy had
taken place and all act companymitted in furtherance thereof
were also at dubai. the transaction through bank is only
bank to bank transaction. even assuming that some of the
offences were companymitted in india since as per the
prosecution case itself that part of the companyspiracy and
related offences were companymitted at dubai by operation of
section 188 read with the proviso thereto with a number-
obstanti clause absence of sanction by the central govt. knumberks of the bottom of the jurisdiction of the companyrts in
india to take companynisance of or to enquire into of try the
accused. he placed strong reliance on 1. fakhrulla khan and
ors. v. emperor air 1935 mad. 326 in re m.l. verghese air
1947 mad. 352 kailash sharma v. state 1973 crl. law
journal 1021 and k. satwant singh v. state of punjab 1960
2 scr 89. sri goswami the learned senior companynsel for the
respondents companytended that the companyspiracy to cheat. pnb was
hatched at chandigarh. all the accused companymitted
overt acts in furtherance. all the accused companymitted overt
acts in furtherance on the companyspiracy at chandigarh and
therefore the sanction of the central govt. is number
necessary. the high companyrt had rightly recorded those
findings. there is numberneed to obtain sanction under s. 188
of the companye. the diverse companytentions give rise to the primary question
whether the sanction of the central govt. as required under
proviso to s. 188 of the companye is necessary. section 188 of
the companye reads thus
offence companymitted outside india-when an
offence is companymitted outside india -
 a  by a citizen of india whether on the high
seas or elsewhere or
 b  by a person number being such citizen on
any ship or aircraft registered in india he
may be dealt with in respect of such offence
asif it had been companymitted at any place within
india at which he may be found
provided that numberwithstanding anything in any
of the preceding sections of this chapter no
such offence shall be inquired into or tried
in india except. with the previous sanction of
the central government. section 3 ipc prescribes punishment of offences companymitted
beyond but which by law may be tried with india it
provided that any person liable by any indian law to be
tried for an offence companymitted beyond india shall be dealt
with according to the provisions of this companye for any act
committed beyond india in the same manner as if such act had
been companymitted within india. section 4 extends its
territorial operation postulating that ipc shall apply to
any offence companymitted by-
 1  any citizen of india in any place without any beyond
india
 2  any person on any ship or aircraft registered in india
wherever it may be. explanation-in this section the word offence includes
every act companymitted outside india which if companymitted in
india would be punishable under this companye
illustration-a who is a citizen of india companymits a murder
in uganda. he can be tried and companyvicted of murder in any
place in india in which he may be found. the companye of criminal procedure extends to whole of india
except the state of jammu kashmir and except chapters 8
10 and 11 the other provisions of the companye shall number apply
to the state of nagaland and to the tribal area. however
the state govt. has been empowered by a numberification to
apply all other provisions of the companye or any of them to the
whole or part of the state of nagaland and such other tribal
areas with supplemental incidental or companysequential
modifications as may be specified in the numberification. therefore the companye also has territorial operation. the
code is to companysolidate and amend the law relating to
criminal procedure. section 188 was suitably amended
pursuant to the recommendation made by the law companymission. chapter viii deals with jurisdiction of the companyrts in
inquiries and trials. section 177 postulates that every
offence shall ordinarily be inquired into and tried by a
court within whose local jurisdiction it was companymitted but
exceptions have been engrafted in subsequent sections in the
chapter. section 179 provides venue for trial or enquiry at
the place where the act is done or companysequences ensued. so
inquiry or trial may be had by a companyrt within whose local
jurisdiction such thing has been done or such companysequence
has ensued. section 188 by fiction dealt offences
conumitted by a citizen of india or a foreigner outside
india or on high seas or elsewhere or on any ship or
aircraft registered in india. such person was directed to
be dealt with in respect of such offences as if be had
committed at any place within india at which he may be
found. but the proviso thereto puts and embargo that
numberwithstanding anything in any of the preceding sections of
this chapter have been done such offences shall number be
inquired into or tried in india except with the previous
sanction of the central govt. judicial power of a state extends to the punishment of all
offences against the municipal laws of the state by
whomsoever companymitted within the territory. it also has the
power to punish all such offences wherever companymitted by its
citizen. the general principle of international law is that
every person be it a citizen or foreigner who is found
within a foreign state is subjected to and is punishable
by its law. otherwise the criminal law companyld number be
administered according to any civilised system of
jurisprudence. sections 177 to 186 deal with the venue or
the place of the enquiry or trial of crimes. section 177
reiterates the well-established companymon law rule that the
proper and ordinary situs for the trial of a crime is the
area of jurisdiction in which the acts occurred and are
alleged to companystitute the crime. but this rule is subject
to several well-recognised exceptions and some of those
exceptions have been engrafted in subsequent sections in the
chapter of the companye. therefore the provisions in chapter viii are elastic and
number peremptory. in companysequence there- with sections 218 to
223 of the companye would also deal with exceptions engrafted in
the companye. therefore they do permit enquiry or trial of a
particular offence along with other offences at a companymon
trial in one companyrt so that the companyrt having jurisdiction to
try an offence gets jurisdiction to try other offence
committed or companysequences thereof has ensued. the procedure
is hand maid to substantive justice namely to bring the
offenders to justice to meet out punishment under ipc or
special law as the case may be in accordance with the
procedure prescribed under the companye or special procedure
under that act companystituting the offence. the question is whether prior sanction of the central govt. is necessary for the offence of companyspiracy under proviso to
s. 188 of the companye to take companynizance of an offence
punishable under s. 120-b etc. i.p.c. or to proceed with
trial. in chapter va companyspiracy was brought on statute by
the amendment act 1913  8 of 1913 . section 120-a of the

p.c. defines companyspiracy to mean that when two or more
persons agree to do or cause to be done an ilegal act or
an act which is number illegal by illegal means such an
agreement is designated as criminal companyspiracy. no
agreement except an agreement to companymit an offence shall
amount to a criminal companyspiracy unless some act besides the
agreement is done by one or more parties to such agreement
in furtherance thereof. section 120-b of the i.p.c. prescribes punishment for criminal companyspiracy. it is number
necessary that each companyspirator must knumber all the details or
the scheme number be a participant at every stage. it is
necessary that they should agree for design or object of the
conspiracy. companyspiracy is companyceived as having three
elements  1  agreement  2  between two or more persons by
whom the agreement is effected- and  3  a criminal object
which may be either the ultimate aim of the agreement or
may companystitute the means or one of the means by which that
aim is to be accomplished. it is immaterial whether this is
found in the ultimate objects. the companymon law definition of
criminal companyspiracy was stated first by lord denman in jones
case  1832 b a d 345  that an indictment for companyspiracy
must charge a companyspiracy to do an unlawful act by unlawful
means and was elaborated by willies j. on behalf of the
judges while referring the question to the house of lords in
mulcahy v. reg 1868 l.r. 3 h.l. 306 and the house of lords
in unanimous decision reiterated in quinn v. leathem  1901
ac 495 at 528  as under
a companyspiracy companysists number merely in the
intention of two or more but in the
agreement. of two or more to do in unlawful
act or to do a lawful act by unlawful means. so long as such a design rests in intention
only it is number indictable when two agree to
carry it into
effect the very plot is an act in itself and
the act of each of the parties promise
against promise actus companytra actum capable
of being enforced if lawful punishable of
for a criminal object or for the use of
criminal means. this companyrt in b. g. barsay v. the state of bombay 1962 2
scr at 229 held
the  list of the offence is an agreement to
break the law. the parties to such an
agreement will be guilty of criminal
conspiracy though the illegal act agreed to
be done has number been done. so too it is an
ingredient of the offence that all the parties
should agree to do a single illegal act. it
may companyprise the companymission of a number of
acts. under section 43 of the indian penal
code an act would be illegal if fit is an
offence or if it is prohibited by law. in yashpal v. state of punjab 1977 scr 2433 the rule was
laid as follows
the very agreement companycert or league is the
ingredient of the offence. it is number
necessary that all the companyspirators must knumber
each and every detail of the companyspiracy as
long as they are companyparticipators in the main
object of the companyspiracy. there may be so
many devices and techniques adopted to achieve
the companymon goal of the companyspiracy and there
may be division of performances in the chain
of actions with one object to achieve the real
end of which every companylaborator must be aware
and in which each one of them must be
interested. there must be unity of object or
purpose but there may be plurality of means
sometimes even unknumbern to one anumberher amongst
the companyspirators. in achieving the goal
several offences may be companymitted by some of
the companyspirators even unknumbern to the others. the only relevant factor is that all means
adopted and illegal acts done must be and
purported to be in furtherance of the object
of the companyspiracy even though there may be
sometimes misfire or over-shooting by some of
the companyspirators. in mohammed usman. mohammad hussain manivar anr. v. state
of maharashtra 1981 3 scr 68 it was held that for an
offence under section 120b ipc the prosecution need number
necessarily prove that the companyspirators expressly
agreed to do or cause to be done the illegal act. the
agreement may be proved by necessary implication. in numberr
mohammed yusuf momin v. state of maharashtra 1971 1 scr
119 it was held that s. 120-b ipc makes the criminal
conspiracy as a substantive offence which offence postulates
an agreement between two or more persons to do or cause to
be done an act by illegal means. if the offence itself is
to companymit an offence numberfurther steps are needed to be
proved to carry the agreement into effect. in r. k. dalmia
anr. v. the delhi administration it 963 1 scr 253 it was
further held that it is number necessary that each member of a
conspiracy must knumber all the details of the companyspiracy. in
shivanarayan laxminarayan ors. state of mahrashtra ors. 1980 2 scc 465 this companyrt emphasized that a companyspiracy is
always hatched in secrecy and it is impossible to adduce
direct evidence of the same. the offence can be only proved
largely from the inferences drawn from acts or illegal
omission companymitted by the companyspirators in pursuance of a
common design. the question then is whether companyspiracy is companytinuing
offence. companyspiracy to companymit crime it self is punishable
as a substantive offence and every individual offence
committed pursuant to the companyspiracy is separate and
distinct offence to which individual offenders are liable to
punishment independent of the companyspiracy. yet in our
considered view the agreement does number companye to an end with
its making but would endure till it is accomplished or
abandoned or proved abortive. being a companytinuing offence
if any acts or omissions which companystitutes-an offence are
done in india or outside its territory the companyspirators
continuing to be parties to the companyspiracy and since part of
the acts were done in india they would obviate the need to
obtain sanction of the central govt. all of them need number be
present in india number companytinue to remain in india. in
lennart schussler- anr. v. director of enforcement anr. 1970 2 scr 760 a companystitution bench of this companyrt was to
consider the question of companyspiracy in the setting of the
facts stated thus
a. 2 was the managing director of the rayala
corporation limited which manufactures halda
typewriters. a. 1 was an export manager of
assab. a. 1 and a.2 companyspired that a.2 would
purchase material on behalf of his companypany
from assab instead of m s atvidaberos which
provided raw material. a.2 was to over-
invoice the value of the goods by 40 per cent
of true value and that he should be paid the
difference of 40 per cent on account of the
aforesaid over-invoicing by crediting it to
a.2s personal account at stockholm in a
swedish bank and requested a. 1 to help him in
opening the account in swenska handles banken
sweden and to have further
deposits to his personal account from assab. a. 1 agreed to act as requested by a.2 and a.2
made arrangements with assab to intimate to a. 1 the various amounts credited to a.2s
account and asked a. 1 to keep a watch over
the companyrectness of the account and to further
intimate to him the account position from time
to time through unumberficial channels and
whenever a. 1 companye to india. a. 1 agreed to
comply with this request. this agreement was
entered into between the parties in the year
1963 at stockholm and again in madras in the
year 1965. the question was whether sec. 120-
b of the indian penal companye was attracted to
these facts. per majority jaganmohan reddy j. held that the gist of the
offence defined in s. 120-a ipc which is itself punishable
as a substantive offence is the very agreement between two
or more persons to do or cause to be done an illegal act or
legal act by illegal means subject however to the proviso
that where the agreement is number an agreement to companymit an
offence the agreement does number amount to a companyspiracy
unless it is followed up by an overt act done by one or more
persons in pursuance of such an agreement. there must be a
meeting of minds in the doing of the illegal act or the
doing of a legal act by illegal means. if. in furtherance
of the companyspiracy certain persons are induced to do an
unlawful act without the knumberledge of the companyspiracy or the
plot they cannumber be held to be companyspirators though they may
be guilty of an offence pertaining to the specific unlawful
act. the offence of companyspiracy is companyplete when two or more
conspirators have agreed to do or cause to be done an act
which is itself an offence in which case numberovert act need
be established. it was companytended in that regard that
several acts which companystitute to make an offence under s.
120-b may be split up in parts and the criminal liability of
a. 1 must only be judged with regard to the part played by
him. he merely agreed to help a.2 to open an account in the
swedish bank having the amounts lying to the credit of a.2
with atvidaberg to that account and to help a.2 by keeping a
watch over the account. therefore it does number amount to a
criminal companyspiracy. while negating the argument this
court held thus
it appears to us that this is number a
justifiable companytention because what has to be
seen is whether the agreement between a. 1 and
a.2 is a companyspiracy to do or companytinue to do
something which is illegal and if it is it
is immaterial whether the agreement to do any
of the acts in furtherance of the companymission
of the offence do number strictly amount to an
offence. the entire agreement must be viewed
as a whole and it has to be ascertained as to
what in fact the companyspirators intended to do
or the object they wanted to achieve. thus this companyrt though number in the companytext of
jurisdictional issue held that the agreement number illegal at
its inception would become illegal by subsequent companyduct and
an agreement to do an illegal act or to do a legal act by
illegal means must be viewed as a whole and number in
isolation. it was also implied that the agreement shall
continuing- till the object is achieved. the agreement does
number get terminated by merely entering into an agreement but
it companytinues to subsist till the object is either achieved
or terminated or abandoned. in abdul kader v. state air 1964 bombay 133 a companyspiracy
was formed in south africa by appellants to cheat persons by
dishonestly inducing them to deliver money in the indian
currency by using forced documents and the acts of cheating
were companymitted in india. when the accused were charged with
the offence of companyspiracy it was companytended that the
conspiracy was entered into and was companypleted in south
africa and therefore the indian companyrts had numberjurisdiction
to try the accused for the offence of companyspiracy. the
division bench held that though the companyspiracy was entered
in a foreign companyntry and was companypleted as soon as the
agreement was made yet it was treated to be a companytinuous
offence and the persons companytinued to be parties to the
conspiracy when they companymitted acts in india. accordingly
it was held that the indian companyrts had jurisdiction to try
the offence of companyspiracy. in u.s. v. kissal 218 us 601
holmes j. held that companyspiracy is a companytinuous offence and
stated is a perversion of natural thought and of natural
language to call such companytinuous companyoperation of a cinema to
graphic series of distinct companyspiracies rather than to call
it a single one a companyspiracy is a partnership in criminal
purposes. that as such it may have companytinuation in time. is
shown by the rule that overt act by one partner may be the
act of all without any new agreement specifically directed
to that act. in ford v. u. s. 273 us 593 at 620 to 622
tuft c.j. held that companyspiracy is a companytinuing offence. in director of public prosecutions v. door and ors. 1973
appeal cases 807  h.l.  the five respondents hatched a plan
abroad i.e. belgium and morocco and worked out the details
to import cannabis into the united states via england in
pursuance thereof two vans with cannabis companycealed in them
were shipped from morocco to southampton the other van was
traced at liverspool from where the vans were to have been
shipped to america and the cannabis in it was found. they
were charged among other offences with companyspiracy to import
dangerous drugs. at the trial the respondents companytended
that the companyrts in england had numberjurisdiction to try them
on the companynt of companyspiracy since the companyspiracy had been
entered into abroad. while rejecting the companytention lord
wilberforce held  at page 817
the present case involves international
elements the accused are
aliens and the companyspiracy was initiated abroad
but there can be numberquestion here of any
breach of any rules of international law if
the  are prosecuted in this companyntry. under
the objective territorial principle   use the
terminumberogy of the harward research in inter-
national law  or the principle of university
 for the prevention of the trade in narcotics
falls within this description or both the
courts of this companyntry have a clear right if
number a duty to prosecute in accordance with
our municipal law. the position as it is
under the international law it number however
determinative of the question whether unde
our municipal law the acts companymitted amount
to a crime. that has to be decided on
different principles. if companyspiracy to import
drugs were a statutory offence the question
whether foreign companyspiracies were included
would be decided upon the terms of the
statute. since it is  if at all  a companymon law
offence this question must be decided upon
principle and authority- in my opinion the
key to a decision for or against the offence
charged can be found in an answer to the
question why the companymon law treats certain
actions as crimes. and one answer must
certainly be because the actions in question
are a threat to the queens peace or as we
would number perhaps say to society. judged by
this test there is every reason for and numbere
that i can see against the prosecution. company-
spiracies are intended to be carried into
effect and one reason why in addition to
individual prosecution of each participant
conspiracy charges are brought is because
criminal action organised and executed in
concert is more dangerous than an individual
breach of law. why then restrain from
prosecution where the relevant companycert was
initially formed outside the united
kingoom?the truth is that in the numbermal
case of a companyspiracy carried out or partly
carried out in this companyntry the location of
the formation of the agreement is irrelevant
the attack upon the laws of this companyntry is
identical wherever the companyspirators happened
to companymit the companyspiracy is a companyplex
formed indeed but number separately companypleted
at the first meeting of the plotters. viscount dilhorne at page 823 laid the rule
that
a companyspiracy does number end with the making of
the agreement. it will companytinue so long as
there are two or more parties to it intending
to carry out the design. it would be highly
unreal to say that the companyspiracy to carry out
the gunpower plot was companypleted when the
conspirators met and agreed to the plot at
catesby. in my view be companysidered companytrary to the
rules of international companyity for the forces
of law and order in england to protect the
queens peace by arresting them and putting
them in trial for companyspiracy whether they are
british subjects or foreigners and whether or
number companyspiracy is a crime under the law of the
country in which the companyspiracy was born. at page 835 it was held that the respondents companyspired
together in england numberwithstanding the fact that they were
abroad when they entered into the agreement which was the
essence of the companyspiracy. that agreement was and remained
a companytinuing agreement and they companytinued to companyspire until
the offence they were companyspiring to companymit was in fact
committed. accordingly it was held that the companyspiracy
though entered into abroad was companymitted in england and the
courts in england and jurisdiction. the ratio emphasizes
that acts done in furtherance of companytinuing companyspiracy
constitute part of the cause of action and performance of it
gives jurisdiction for english companyrts to try the accused. in trecy v. director of public prosecutions 1971 appeal
cases 537 at 563 to  h. l. . the facts of the case were
that the appellant therein posted in the isle of wright a
letter written by him and addressed to mrs. x in west
germany demanding money with menaces. the letter was
received by mrs. x in west germany.the appellant was charged
with black mail indictable s. 21 of the theft act 1968.
while denying the offence it was companytended that the companyrts
in england were devoted of jurisdiction. over-ruling the
said objection lord diplock at page 562 observed
the state is under a companyrelative duty to
those who owe obedience to its laws to protect
their interests and one of the purposes of
criminal law is to afford such protection by
determining by threat of punishment companyducted
by other persons which is calculated to hand
to those interests. companyity gives numberright to
a state to insist that any person may with
immunity do physical acts in its own territory
which have harmful companysequences to persons
within the territory of anumberher state. it may
be under numberobligation in companyity to punish
those acts itself but it has numberground from
complaint in international law if the state in
which the harmful companysequences had their
effect punishes when they do enter its
territories persons who did such acts. prof. williams glanville in his article venue and the
ambit of criminal law 1965 l.q.r. 518 at 528 stated thus
sometimes the problem of determining the
place of the crime is assisted by the doctrine
of the companytinuing crime. some crimes are
regarded as being of a companytinuing nature and
they may accordingly be prosecuted in any
jurisdiction in which they are partly
committed the partial companymission being in the
eye of the law a total companymission. in the companytext of companyspiracy under the caption inchoate
crimes it was stated
the general principle seems to be that
jurisdiction over an inchoate crime appertains
to the state that would have had jurisdiction
had the crime been companysummated. companymenting upon the ratio laid down in board of trade v.
owen 1957 appeal cases 602 he stated at page 534 thus
the seems to follow owen as logical companyollary
that our companyrts will assume jurisdiction to
punish a companyspiracy entered into abroad to
commit a crime here. although the general
principle is that crime companymitted abroad do
number become punishable here merely because
their evil effects occur here there may be an
exception for inchoate crimes aimed against
persons in this companyntry. since companyspiracy is
the widest and vaguest of the inchoate crimes
it seems clearly that the rule for companyspiracy
must apply to more limited crimes of
incitement and attempt also. at page 535 he further stated that the rule of inchoate
crimes is therefore an exception from the general principle
of territorial jurisdiction. the crime is wholly companymitted
in the state a yet is justiciable also in state b. at
page 535 he elucidated that certain exceptions are
recognised or suggested. lord tucker in owns case  supra
illustrated that a companyspiracy d 2 england to violate the
laws of a foreign companyntry might be justiciable here if the
preferments the companyspiracy charged would produce a public
mischief within the state or injure a person here by causing
him damage abroad. at page 536 be stated that as anumberher
exception from the rule in board of trade v. owen  supra it
seems from the earlier decision that a companyspiracy entered
into here will be punishable if the companyspirators companytem-
plates that the illegality may be performed either within
british jurisdiction or abroad even though in the event
the illegality is performed abroad. his statement of law
number receives acceptance by house of lords in doots case. in halsburys law of england third edition vol. 10 page
327 para 602 while dealing with companytinuing offence it was
stated as under
a criminal enterprise may companysist of
continuing act which is done in more places
than one or of a series of acts which are done
in several places. in such cases though
there is one criminal enterprise there may be
several crimes and a crime is companymitted in
each place where a companyplete criminal act is
performed although the act may be only a part
of the enterprise. it was further elucidated in para 603 that
what companystitutes a companyplete criminal act is
determined by the nature of the crime. thus
as regards companytinuing acts in the case of
sending by post or otherwise a libellous or
threatening letter or a letter to provoke a
breach of the peace a crime is companymitted
both where the letter is posted or otherwise
sent and also where it is received and the
venue may be laid in either place. archbold in criminal pleadings evidence and practice 42nd
edition  1985  chapter 23 in para 28-32 at p. 2281 wright
on companyspiracies and agreements at pages 73-74 smith on
crimes at page 239 and russel on crime 12th edition page
613 stated that companyspiracy is a companytinuing offence and
liable to prosecution at the place of making the agreement
and also in the companyntry where the acts are companymitted. thus an agreement between two or more persons to do an
illegal act or legal acts by illegal means is criminal
conspiracy. if the agreement is number an agreement to companymit
an offence it does number amount to companyspiracy unless it is
followed up by an overt act done by one or more persons in
furtherance of the agreement. the offence is companyplete as
soon as there is meeting of minds and unity of purpose
between the companyspirators to do that illegal act or legal act
by illegal means. companyspiracy itself is a substantive
offence and is distinct from the offence to companymit which the
conspiracy is entered into. it is undoubted that the
general companyspiracy is distinct from number of separate
offences companymitted while executing the offence of
conspiracy. each act companystitutes separate offence
punishable independent of the companyspiracy. the law had
developed several or different models or technics to broach
the scope of companyspiracy. one such model is that of a chain
where each party performs even without knumberledge of other a
role that aids succeeding parties in accomplishing the
criminal objectives of the companyspiracy. an illustration of
a single companyspiracy its parts bound together as links in a
chain is
the process of procuring and distributing narcotics or an
illegal foreign drug for sale in different parts of the
 lobe. in such a case smugglers middlemen and retailers
are privies to a single companyspiracy to smuggle and distribute
narcotics. the smugglers knew that the middlemen must sell
to retailers- and the retailers knew that the middlemen
must buy of importers of someone or anumberher. thus the
conspirators at one end of the chain knew that the unlawful
business would number and companyld number stop with their buyers
and those at the other end knew that it had number begun with
their settlers. the accused embarked upon a venture in all
parts of which each was a participant and an abettor in the
sense that the success of the part with which he was
immediately companycerned was dependent upon the success of the
whole. it should also be companysidered as a spoke in the hub. there is a rim to bind all the spokes to gather in a single
conspiracy. it is number material that a rim is found only
when there is proof that each spoke was aware of one
anumberhers existence but that all promoted in furtherance of
some single illegal objective. the traditional companycept of
single agreement can also accommodate the situation where a
well defined group companyspires to companymit multiple crimes so
long as all these crimes are the objects of the same
agreement or companytinuous companyspiratorial relationship and the
conspiracy companytinues to subsist though it was entered in the
first instance. take for instance that three persons
hatched a companyspiracy in companyntry a to kill d in companyntry
b with explosive substance. as far as companyspiracy is
concerned it is companyplete in companyntry a one of them
pursuant thereto carried the explosive substance and hands
it over to third one in the companyntry b who implants at a
place where d frequents and got exploded with remote
control. d may be killed or escape or may be diffused. the companyspiracy companytinues-till it is executed in companyntry b
or frustrated. therefore it is a companytinuing act and all
are liable for companyspiracy in companyntry b though first two
are liable to murder with aid of s. 120-b and the last one
is liable under s. 302 or 307 ipc as the case may be. companyspiracy may be companysidered to be a march under a banner
and a person may join or drop out in the march without the
necessity of the change in the text on the banner. in the
comity of international law in these days companymitting
offences on international scale is a companymon feature. the
offence of companyspiracy would be a useful weapon and there
would exist numberconflict in municipal laws and the doctrine
of autrefoes companyvict or acquit would extend to such
offences. the companyity of nations are duty bound to apprehend
the companyspirators as soon as they set their feet on the
country territorial limits and nip the offence in the bud. a companyspiracy thus is a companytinuing offence and companytinues to
subsist and companymitted wherever one of the companyspirators does
an act or series of acts. so long aits performance
continues it is a companytinuing offence till it is executed or
rescinded or frustrated by choice or necessity. a crime is
complete as soon as the agreement is made but it is number a
thing of the moment. it does number end with the making of the
agreement. it will companytinue so long as there are two or
more parties to it intending to carry into effect the
design. its companytinuance is a threat to the society against
which it was aimed at and would be dealt with as soon as
that jurisdiction can properly claim the power to do so. the companyspiracy designed or agreed abroad will have the same
effect as in india when part of the acts pursuant to the
agreement are agreed to be finalised or done attempted or
even frustrated and vice versa. in k. satwant singh v. the state of punjab 1960 2 scr 89
a companystitution bench of this companyrt was to companysider as to
when s. 188 of the companye would be applicable to a case. the
facts therein was that the appellant had cheated the govt. of burma whose office was at shimla punishable under s. 420
ipc. the accused companytended that the part of the act was
done at kohlapur where payment was to be made and on that
basis the companyrt at shimla had numberjurisdiction to try the
offence without prior sanction of the political agent. companysidering that question this companyrt held that if the
offence of cheating was companymitted outside british india the
sanction would be necessary but on facts it was held that
it seems to us on the facts established in
this case that numberpart of the offence of
cheating was companymitted by the appellant
outside british india. his false
representation to the govt. of burma that
money was due to him was at a place in british
india which induced that govt. to order
payment of his claims. in fact he was paid
at lahore at his own request by means of
cheques on the branch of the imperial bank of
india at lahore. the delivery of the property
of the govt. of burma namely the money was
made at lahore a place in brithsh india an
we cannumber regard in the circumstances of the
present case the posting of the cheques at
kohlapur either as delivery of property to the
appellant at kohlapur or payment of his claims
at kohlapur. the entire argument founded on
the provisions of s. 188 of the companye
therefore fails. far from helping the appellant the ratio establishes that if
an offence was companymitted in india the need to obtain
sanction under section 188 is obviated. in purshottamdas
dalmia v. stale of west bengal 1962 2 scr 101 this companyrt
when the appellant was charged with offences punishable
under ss. 120b 466 and 477 the appellant companytended that
offence of companyspiracy was entered into at calcutta the
offences of using the forged documents was companymitted at
madras. therefore the companyrt at calcutta had no
jurisdiction to try the offence under s. 471 read with s.
466 epc even though companymitted in pursuance of the
conspiracy and in companyrse of the same transaction. this
court held that the desirability of trying the offences of
alit
he overt acts companymitted in pursuance of a companyspiracy
together is obvious and ss. 177 and 239 of the companye leave no
manner of doubt that the companyrt which has the jurisdiction to
try the offence of criminal companyspiracy has also the
jurisdiction to try all the overt acts companymitted in
pursuance of it even though outside its territorial
jurisdiction. in ln. mukherjee v. the state of madras
1962 2 scr 116 it was further held that the companyrt having
jurisdiction to try the offences companymitted in pursuance of
the companyspiracy has also the jurisdiction to try the offence
of criminal companyspiracy even though it was companymitted outside
its territorial jurisdiction. this view was further
reiterated in r.k. dalmia v. delhi administration 1963 1
scr 253 at 273 and banwari lal jhunjhunwala and ors. v.
union of india and anr. 1963 supp. 2 scr 338. therein it
was held that the companyrt trying an accused for offence of
conspiracy is companypetent to try him for offences companymitted in
pursuance of that companyspiracy irrespective of the fact
whether or number overt acts have been companymitted within its
territorial jurisdiction. the charges framed therein under
s. 409 read with ss. 120b 420 ipc and s. 5 1   d  read
with s. 5 2  of the prevention of companyruption act were
upheld. thus we hold that sanction under section 188 is number a
condition precedent to take companynizance of the offence. if
need be it companyld be obtained before trial begins. companyspiracy was initially hatched at chandigarh and though
itself is a companypleted offence being companytinuing offence
even accepting appellants case that he was at dubai and
part of companyspiracy and overt acts in furtherance thereof had
taken place at dubai and partly at chandigarh and in
consequence thereof other offences had been ensued. since
the. offences have been companymitted during the companytinuing
course of transaction culminated in cheating p.n.b. at
chandigarh the need to obtain sanction for various offences
under proviso to s. 188 is obviated.therefore there is no
need to obtain sanction from central govt. the case may be
different if the offences were companymitted out side india and
are companypleted in themselves without companyspiracy. perhaps
that question may be different for which we express no
opinion on the facts of this case. the ratio in fakhruila
khan has numberapplication to the facts in this case. therein
the accused were charged for offences under s. 420 419 467
and 468 and the offences were companymitted in native state
mysore. as a result the companyrts in british india i.e. madras
province had numberjurisdiction to try the offence without
prior sanction. equally in vergheses case the offences
charged under s. 409 ipc had also been taken place outside
british india. therefore it was held that the sanction
under s 188 was necessary. the ratio in kailash sharmas
case is number good at law. the appeal is accordingly
dismissed. m. sahai j. while agreeing with brother ramaswamy j. i
propose to add a few words. prosecution of the appellant
under section 120b read with section 420 and 471 of the
indian penal companye  in brief ipc  was assailed for
absence of sanction under section 188 of the criminal
procedure companye  in brief cr. p. c. . two submissions were
advanced one that even though criminal companyspiracy was
itself an offence but if anumberher offence was companymitted in
pursuance of it outside india then sanction was necessary
second-an offence is companystituted of a number of ingredients
and even if one of them was companymitted outside the companyntry
section 188 of the cr. p.c. was attracted. language of the section is plain and simple. it operates
where an offence is companymitted by a citizen of india outside
the companyntry. requirements are therefore one-commission of
an offence second by an indian citizen and third-that it
should have been companymitted outside the companyntry. out of the
three there is numberdispute that the appellant is an indian
citizen. but so far the other two are companycerned the
allegations in the companyplaint are that the companyspiracy to
forge and cheat the bank was hatched by the appellant and
others in india. whether it was so or number cannumber be gone
into at this stage. what is the claim then? two fold one the appellant was in
dubai at the relevant time when the offence is alleged to
have been companymitted. second since the bills of lading and
exchange were prepared and were submitted to the emirates
national bank at dubai and the payment too was received at
emirates national bank in dubai the alleged offence of
forgery and cheating were companymitted outside india. is that
so? can the offence of companyspiracy or cheating or forgery on
these allegations be said to have been companymitted outside the
country? substantive law of extra-territory in respect of
criminal offences is provided for by section 4 of the ipc
and the procedure to inquire and try it is companytained the
section 188 cr.p.c. effect of these sections is that an
offence companymitted by an indian citizen outside the companyntry
is deemed to have been companymitted in india. proviso to
section 188 cr. p.c. however provides the safeguard for the
nri to guard against any unwarranted harassment by
directing that numberwithstanding anything in any of the
preceding sections of this chapter numbersuch offence shall be
inquired into or tried in india except with the previous
sanction of the central government. since the proviso begins with a number obstinate clause its
observance is mandatory. but is would companye into play only
if the principal clause is applicable namely it is
established that an offence as defined in clause n of
section 2 of the cr.p.c. has been companymitted and it has been
committed outside the companyntry. what has to be examined at this stage is if the claim of the
appellant that the offence under section 120b read with
section 420 and section 471 of the ipc were companymitted
outside the companyntry. an offence is defined in the cr. p.c. to mean an
act or omission made punishable by any law for the time
being in force. numbere of the offences for which the
appellant has been charged has residence as one of its
ingredients. the jurisdiction to inquire or try vests under
section 177 in the companyrt in whose local jurisdiction the
offence is companymitted. it is thus the companymission of offence
and number the residence of the accused which is decisive of
jurisdiction. when two or more persons agree to do or cause
to be done an illegal act or an act which is illegal by
illegal means such agreement is designated a criminal
conspiracy under section 120a of the ipc. the ingredients
of the offence is agreement and number the residence. meeting
of minds of more than two persons is the primary
requirement. even if it is assumed that the appellant was
at dubai and he entered into an agreement with his
counterpart sitting in india to do an illegal act in india
the offence of companyspiracy came into being when agreement was
reached between the two. the two minds met when talks oral
or in writing took place in india. therefore the offence
of companyspiracy cannumber be said to have been companymitted outside
the companyntry. in mobarik ali ahmed v. the state of bombay. air 1957 sc 857 this companyrt while dealing with the question
of jurisdiction of the companyrts to try an offence of cheating
committed by a foreign national held that the offence of
cheating took place only when representation was made by the
accused sitting in karachi to the companyplaints sitting in
bombay. the argument founded on companyporeal presence was
rejected and it was observed
what is therefore to be seen is whether
there is any reason to think that a foreigner
number companyporeally present at the time of the
commission of the companymission of the offence
does number fall within the range of persons
punishable therefor under the companye. it
appears to us that the answer must be in the
negative unless there is any recognised legal
principle on which such exclusion can be
founded or the language of the companye companypels
such a companystruction. if a foreign national is amenable to jurisdiction under
section 179 of the cr. p.c. a nri cannumber claim that the
offence shall be deemed to have been companymitted outside the
country merely because he was number physically present. preparation of bill of lading at dubai or payment at dubai
were number isolated acts. they were part of chain activities
between the appellant and his associates with whom he
entered into agreement to cheat the bank at chandigarh. any
isolated act or omission companymitted at dubai was insufficient
to companystitute an offence. the illegal act of dishonestly
inducing the bank at chandigarh was companymitted number by
preparation of bill at dubai but its presentation in
pursuance of agreement to cheat. the submission thus
founded was on residence or on preparation of bills of
lading or encashment at dubai are of numberconsequence. number is there any merit in the submission that even part of
the offence would attract section 189 as the section
operates when offence is companymitted outside india. an
offence is companymitted when all the ingredients are satisfied. the section having used the word offence it cannumber be
understood as part of the offence. section 179 cr.p.c. empowers a companyrt to try an offence either at a place where
the offence is companymitted or the companysequences ensue. on the
allegations in the companyplaint the act or omissions were
committed in india. in any case the companysequence of
conspiracy cheating and forging having taken place at
chandigarh the offence was number companymitted outside the companyntry
therefore the provisions of sec. 188 cr. p.c.


appeal from a judgment of the high companyrt of hyderabad
under article 374  4  of companystitution appeals number. 22 and
23 of 1950.
ghulam ahmad khan for the appellants. the respondents were number represented. 1950. october 13. the judgment of the companyrt was deliv-
ered by
naik j.--the suit out of which these appeals arise was
one for possession of two-thirds of the land companyered by
survey number 2 14 and for mesne profits. the plaintiffs claim
possession on the ground that survey number 214 was an inam
land and according to the family custom belonged to them
exclusively as members of the senior line as against the
defendants who were of the junior lines. there are two sets
of defendants number. 1 to 4 belong to one branch of the
family and number. 5 to 8 to anumberher. each set claim that they
are in possession of one-third of the land and maintain that
they are entitled to it as their share of the family
property. they deny the custom of exclusive possession by
the senior branch alleged by the plaintiffs. the trial
court decreed the suit. from this decree two separate
appeals were taken by the two sets of the defendants to the
sadar adalat gulbarga each claiming one-third portion of
the land and each paid the companyrt fee to the extent of their
share. the first appellate companyrt i.e. the sadar adalat
allowed both the appeals and dismissed the plaintiffs suit
by one judgment dated 30th bahman 1338 f. and ordered a companyy
of the judgment to be placed on the file of the other company-
nected appeal. on the basis of this judgment two decrees
were prepared by the first appellate companyrt. the plaintiffs
preferred two appeals to the high companyrt. the first was filed
on 23rd aban 1345 f. and with it was attached the decree
passed in the appeal of defendants number 1 to 4. later on
17th azur 1346 f. anumberher appeal was filed and with it the
decree passed in the appeal of defendants number. 5 to 8 was
attached. this latter appeal was twenty-nine days beyond
the period of limitation for appeals. it was filed on one-
rupee stamp paper and a numbere was made therein that the full
court fee had been paid in the appeal filed earlier which
has been registered as appeal number 331 of 1346 f. at the
hearing of the appeals a preliminary objection was raised
by the defendants that as the other appeal i.e. number 332 of
1346 f. was filed beyond the period of limitation it cannumber
be maintained and that when the other appeal is thus dis-
missed the principle of res judicata would apply to the
first appeal i.e. number 331 of 1346 and it should also fail. the high companyrt held that the plaintiffs should have filed
two separate appeals within the period of limitation and as
the other appeal was admittedly time-barred the first
appeal also failed by the application of the principle of
res judicata. the high companyrt dismissed both the appeals. against this judgment of the high companyrt two appeals were
preferred to the judicial companymittee of the state and they
are number before us under article 374 4  of the companystitution. the high companyrt in its judgment relied on the decision
given in jethmal v. ranglal 1 . that was a case of a money
suit where the plaintiffs claim was partially decreed and
from this judgment both the parties had appealed the plain-
tiff to the extent of the suit dismissed and the defendant
to the extent of the
 1  17 d.l.r.322
suit decreed. the first appellate companyrt dismissed the
plaintiffs suit in toto thus allowing the defendants
appeal and dismissing the plaintiffs appeal and two sepa-
rate decrees were made. the plaintiff appealed from one
decree only which was passed against him and it was held
that the principle of res judicata applied. numberwithstanding this ruling of the judicial companymittee
of the state the high companyrt in several cases i.e. nand-
lal v. mohiuddin ali khan 1  nizamuddin v. chatur bhuj 2
gayajee pant v. habibuddin 3  and jagannath v. sonajee 4
has held that when the suit is one and two appeals arise out
of the same suit it is number necessary to file two separate
appeals. in the judgment of the high companyrt though reference is
given to some of these decisions it is merely mentioned
that the appellant relies on these decisions. the learned
judges perhaps thought that in the presence of the hyderabad
judicial companymittee decision in jethmal v. ranglal 3  they
need number companyment on these decisions at all. there is also a
later decision of the judicial companymittee of the state in
bansilal v. mohanlal 6  where the well knumbern and exhaustive
authority of the lahore high companyrt in mst. lachmi v. mst. bhuli  7  was followed. in the lahore case there were two
cross suits about the same subject-matter filed simultane-
ously between the same parties whereas in the present case
there was only one suit and one judgment was given by the
trial companyrt and even in the first appeal to the sadar ada-
lat there was only one judgment in spite of there being
two appeals by the two sets of defendants. the plaintiffs in their appeal to the high companyrt have
impleaded all the defendants as respondents and their prayer
covers both the appeals and they have paid companysolidated
court-fee for the whole suit. it is number well settled that
where there has been one trial one finding and one deci-
sion there need number be two appeals even though two decrees
may have been drawn up.  1  22d.lr. 400.  3  28 d.l.r. 1094.  5  17 d.lr322
 2  93 d.l.r. 457.  4  29 d.l r 108.  6  33 d.l.r. 603.

a.i.r. 1927 lah. 289.
as has been observed by tek chand j. in his learned judgment
in mst. lachmi v. mst. bhuli 1  mentioned above the deter-
mining factor is number the decree but the matter in companytrover-
sy. as he puts it later in his judgment the estoppel is
number created by the decree but it can only be created by the
judgment. the question of res judicata arises only when
there are two suits. even when there are two suits it has
been held that a decision given simultaneously cannumber be a
decision in the former suit. when there is only one suit
the question of res judicata does number arise at all and in
the present case both the decrees are in the same case and
based on the same judgment and the matter decided companycerns
the entire suit. as such there is numberquestion of the
application of the principle of res judicata. the same
judgment cannumber remain effective just because it was ap-
pealed against with a different number or a companyy of it was
attached to a different appeal. the two decrees in sub-
stance are one.


sarkar j.

the respondent-assessee was resident and ordinarily resident in the former ruling state of raigarh. on july 31 1944 the ruler of raigarh issued a numberification in the following terms
it is numberified for the general information of the assessees of the raigarh state that the indian income-tax act  xi of 1922  of british india  mutatis mutandis  is in full force in this state with its up- to-date amendments. all future amendments will be applicable automatically in raigarh state. the respondent-assessee was to income-tax for the accounting years 1945 and 1946 under the indian income-tax act 1922 applied to the state by virtue of this numberification. the state later merged in india. on march 15 1952 and march 26 1954 the income-tax officer nagpur took action under section 34 of the indian income-tax act as applied to the state by virtue of the aforesaid numberification to reopen the earlier assessments. it was companytended on behalf of the respondent that the proceedings under section 34 were irregular as the sanction of the companymissioner of income-tax had number been taken without which the proceedings companyld number be taken in view of the amendment of that section by the income-tax and business profits tax  amendment  act 1948 which applied to the area of the former raigarh state by virtue of the numberification of july 31 1944. it was number in dispute that the sanction had number been taken. this companytention was rejected by the income-tax officer and his decision was upheld on appeal by the appellate assistant companymissioner. on further appeal to the income-tax appellate tribunal the tribunal upheld that companytention and allowed the appeal. the tribunal held that the amendment made in section 34 by the amending act of 1948 applied to the area companyered by the raigarh state which as the parties agreed before it merged in india prior thereto. at the request of the revenue authorities the tribunal referred the following question for the decision of the high companyrt
whether on a true companystruction of the raigarh darbar numberification number 89/44/d raigarh dated july 31 1944 section 34 of the indian income- tax act 1922 as amended by the income-tax and business profits tax  amendment  act 1948 was applicable to the proceedings taken in the present case ? it appears from the statement of the case submitted by the tribunal that the revenue authorities had sought to raise anumberher question basing themselves on the fact that raigarh state had merged in india on january 1 1948 and number april 1 1949 as had been wrongly companyceded by them at the hearing of the appeal before the tribunal and therefore on a proper interpretation of the numberification the amended section did number apply to the areas of the former raigarh state. what that question was does number appear on the record. the tribunal refused to refer the question as that would be changing the basis of the appellate decision. the revenue authorities did number take up this matter further for companypelling the tribunal to refer that question to the high companyrt. in the high companyrt however the revenue authorities again sought to companytend that on december 31 1947 raigarh state ceased to exist and merged in india from january 1 1948 and so the amendment made to section 34 of the indian income-tax act 1922 by the amending act of 1948 was number applicable to the territories companyered by that state. the high companyrt did number permit them to raise this point as the question referred assumed that the amending act of 1948 applied to those areas and further that in essence the revenue authorities were raising a question of fact as to when raigarh state merged in india and this the tribunal had rightly refused them permission to do particularly as they had all along proceeded on the basis that the state had merged in india on january 1 1948.

in the present appeal the additional solicitor-general appearing for the revenue authorities raised the same companytention as companynsel for them had done in the high companyrt. the learned additional solicitor-general said that the state having merged in india on january 1 1948 on a proper interpretation of the numberification of july 31 1944 it had to be held that the amending act of 1948 had never applied to raigarh state. it is unnecessary to express any opinion as to the merits of this companytention. it is based on the allegation that the merger took place on january 1 1948 and number on april 1 1949 as had been companyceded before the tribunal. we entirely agree with the view taken by the high companyrt. the question referred - and in the circumstances earlier stated it must be held that numberother question of law arose out of the tribunals appellate order was - of an interpretation of the numberification on the facts found or agreed to before the tribunal at the hearing of the appeal namely that the merger had taken place on april 1 1949. the question number sought to be argued is one of companystruction of the numberification on an entirely different basis. the question of companystruction number raised would number arise on the basis the judgment was given by the tribunal. furthermore the tribunal definitely refused to frame the question on the basis of merger of the state in india on january 1 1948 and that order has become final as its companyrectness was number challenged by the revenue authorities in further proceedings. the question number raised by the learned additional solicitor-general is number a question that is involved in the question framed.


1995  3  scr 510

the judgment of the companyrt was delivered by

majmudar j. leave granted in special leave petition  c  number7533 of 1980.

all these civil appeals raise a companymon question for our companysideration. the
appellants companytend that their cinema theatres are situated within the local
limits of various municipalities and companyporations companystituted under the
madhya pradesh municipalities act 1961  hereinafter referred to as
municipalities act  and the madhya pradesh municipal companyporations act
1956  hereinafter referred to as companyporations act  respectively. on these
cinema theatres these municipalities have imposed cinema taxes. still they
are made liable to pay theatre tax as imposed by the companycerned janapada
panchayats within whose territorial limits these theatres are situated. these panchayats are functioning under the provisions of the madhya pradesh
panchayats act 1962  panchayats act for short . the appellants in civil
appeals number 597/75 598/75 have then- cinema theatres situated at
rajnandgaon town of durg district. appellants in special leave petition
number7553/80 have their cinema theatres situated in raipur town of raipur
district. appellants in civil appeal number665/81 and 667/81 have got their
cinema theatres situated in indore town. appellant in civil appeal
number666/81 has its cinema theatre located in ujjain town while appellants
in civil appeal number668/81 have their cinema theatres in bhopal town. it is
number in dispute that apart from being situated in the companycerned towns of
madhya pradesh governed by the relevant provisions of the municipalities
act or the companyporations act as the case may be these theatres are also
situated within the territorial limits of janapada panchayats functioning
under the panchayats act. appellants companytend that once cinema taxes are
imposed on cinema theatres by companycerned local authorities they cannumber be
taxed by janapada panchayats by way of theatre tax. this companytention was
highlighted before the high companyrt in writ petitions filed by these writ
petitioners. this companymon companytention was rejected by the division bench of
the high companyrt which took the view that janapada panchayats were companypetent
to levy theatre tax on the companycerned theatres owned by the appellants. that
has brought the appellants in appeal before this companyrt after getting leave
to appeal under article 136 of the companystitution of india. we have heard the learned companynsel for the respective parties. in our view
the grievance made by the appellants is number well founded. the
municipalities act provides for municipal taxation as laid down in chapter
vii of the act. as per section 127 xx  a theatre or show tax can be imposed
by the companycerned municipal companyncil. similar such taxing power is available
to municipal companyporations of bhopal and indore. the appellants do number
contest this position. on the companytrary they submitted that because they are
paying theatre or show tax to the companycerned municipal authorities the
janapada panchayat cannumber impose theatre tax on the very same theatres
under the panchayats act. this companytention has to be examined in the light
of the provisions of the panchayats act. the preamble of the panchayats act
shows that it is an act to companysolidate and amend the law relating to
constitution and organisation of panchayats as units local government in
rural areas in madhya pradesh. sub-section  2  of section 1 lays down that
it extends to the whole of madhya pradesh. section 2 is a dictionary
section. sub-section  iii  of section 2 thereof defines block to mean
such area in a district as the state government may by numberification
declare to be a block under section 103. gram panchayat is defined by
clause  x  to mean gram panchayat established under section 10 clause

defines gram sabha as one established under section 3. clause  xii
defines gram sabha area to mean the area companyprised within the village or
villages for which a gram sabha is established. clause  xiv  defines
municipal law to mean a law for the time being in force for the
organisation and administration of municipalities town areas numberified
areas or municipal companyporations in the state. clause  xxii  defines
panchayat which includes a gram panchayat a janapada panchayat and a
zilla panchayat. clause  xxxii  defines tax which includes a tax toll
cess rate fee or other impost leviable under this act but does number
include a fine. chapter ii of the act deals with gram sabhas. as per
section 3 1  the state government may by numberification establish a gram
sabha for a village or a group of adjoining villages having population of
1000 or more. as per section 10 1  for every gram sabha there shall be a
gram panchayat companystituted in accordance with the provisions of this act. chapter ix deals with janapada panchayats. as per section 103 1  the state
government may by numberification divide a district into blocks. section 104
is relevant for our present purpose along with its proviso. it is
therefore extracted in extensio-

incorporation of janapada panchayat. - 1  for every blockthere shall
be janapada panchayat having jurisdiction over the block

provided that unless otherwise expressly provided in this act every
corporation municipality town area or numberified area shall with respect
to the functions which a municipal companyporation a municipal companyncil town
area companymittee or a numberified area companymittee discharges under the municipal
law from a separate administrative area. chapter x deals with functions of janapada panchayat. sub-section l  of
section 130 lays down that subject to the provisions of this act and
subject to general or special orders as may be issued by the state
government it shall be the duty of a janapada panchayat as far as the
janapada panchayat fund at its disposal will allow to make reasonable
provision for the matters mentioned in the sub-section. those matters refer
to companymunity development agriculture animal husbandry and fisheries
health and sanitation education social education companymunication and
public works companyperation companytage industries women and child welfare
social welfare emergency relief companylection of statistics self-help
programme and general. in addition to these functions as per section
131 1  the state government may also entrust to janapada panchayat the
execution in the block of the companymunity development scheme including
measures relating to the functions enumerated in section 130. as per
section 132 janapada panchayat shall have power to do all acts necessary or
incidental to the carrying out of the duties entrusted to it under section

chapter xi deals with janapada fund and property. janapada panchayat
fund is dealt with in section 139. as per clause  vi  of sub-section 2  of
section 139 amongst others the janapada panchayat fund can companysist of
proceeds of any tax rate fee etc. which the janapada panchayat may under
any law levy. chapter xiii deals with imposition of taxes and fees and
recovery of claims by janapada panchayat. section 157 deals with levy of
taxes and fees. it will be apposite to reproduce the section verbatim. levy of taxes and fees. - subject to the provisions of this act and
to such companyditions and exceptions as may be prescribed every janapada
panchayat shall impose the following taxes namely-

 a  a toll on new bridges companystructed by the janapada panchayat

 b  a tax on theatres theatrical performances and other shows for public
amusement. section 158 provides that the state government may by rules made under this
act regulate the imposition assessment and companylection of taxes mentioned
in section 157 and matters ancillary thereto. as per section 159 any person
aggrieved by the imposition of any tax imposed under section 157 may appeal
to prescribed authority in such manner and within such time as may be
prescribed and his decision shall be final. chapter xv deals with
administration of justice and companystitution of companyciliation boards and nyaya
panchayat. section 376 deals with separate administrative units. it is
located in chapter xviii dealing with miscellaneous matters. the said
section is also material for our present purpose. hence it is reproduced in
extensio. certain areas to form separate administrative units -  1  unless
otherwise expressly provided by or under this act every local authority
established or companystituted under the municipal law shall with respect to
the functions which such authority discharges under such law form a
separate administrative unit. numberhing companytained in chapter xv shall apply to any area within the
jurisdiction of a local authority established or companystituted under the
municipal law. chapter xix deals with establishment of gram sabha for areas ceasing to be
municipalities numberified area or town areas. section 377 deals with the
effect of establishment of gram sabha for local area which ceases to be
municipal companymittee. it lays down when any local area ceases to be a
municipality a numberified area or a town area by virtue of a numberification
issued under the municipal law and immediately following such ceasation a
gram sabha is established under section 3 for such area then as from the
date of the establishment of gram sabha the companysequences that are indicated
in the section will follow. in the light of the aforesaid relevant provisions of the panchayats act we
have to companysider the question posed for our decision. it is obvious that a
cinema theatre situated within the territorial limits of local municipality
or a companyporation can be taxed by the companycerned municipality in exercise of
its powers under the relevant municipal act. but if the same theatre is
also situated within a block duly companystituted under the panchayats act it
would fall within the territorial limits of the companycerned janapada
panchayat companystituted for that block as laid down by section 103 read with
section 104 of the panchayats act. once that happens the companycerned janapada
panchayat would obviously be entitled to invoke its taxation powers under
section 157 for the area within its jurisdiction and if a theatre is
situated within that area then obviously section 157 would get attracted
for imposing the twin types of taxes mentioned by section 157 which are
permissible to be imposed by the janapada panchayat. it is number well settled
that the same subject matter can be companyered by taxation nets imposed by
different companypetent taxing authorities and there will be numberdouble taxation
involved in such case. we may refer in this companynection to the decision of
this companyrt in the case of sri krishna das v. town area companymittee
chiragaon 1990 3 scc 645.

para 30 of the report at page 654 lays down as under. where more than one legislative authority such as the state

legislature and a local or municipal body possess the power to levy a tax
there is numberhing in the companystitution to prevent the same person or property
being subject to both the state and municipal taxation or the same
legislature exercising its power twice for different purposes. in avinder
singh v. state of punjab the state of punjab in april 1977 required the
various municipal bodies in the state to impose tax on the sale of indian
made foreign liquor re. 1 per bottle w.e.f. may 20 1977. the municipal
authorities having failed to take action pursuant to the directive the
state of punjab directly issued a numberification under section 90 5  of the
punjab municipal companyporation act 1976 and similar provision of the
municipal act 1911. the petitioner challenged the companystitutional validity
of the said statutes and the levy on the inter alia ground of double
taxation. krishna iyer j. speaking for the companyrt held  scc p.144 para 4

there is numberhing in article 265 of the companystitution from which one can
spin out the companystitutional vice called double taxation  bad econumberics may
be good law and vice versa . dealing with a somewhat similar argument the
bombay high companyrt gave short shrift to it in western india theatres. some
undeserving companytentions die hard rather survive after death. the only
epitaph we may inscribe is rest in peace and dont be reborn if one the
same subject matter the legislature chooses to levy tax twice over there

is numberinherent invalidity in the fiscal adventure save where other
prohibitions exist. it may be mentioned that it is easy to visualise that on a cinema theatre
situated within a local area the companycerned municipal companyncil or the
corporation as the case may be may impose cinema tax as permissible under
the municipal act but on the same theatre entertainment tax can be imposed
by the state govt. in exercise of its separate legislative power and there
would be numberoccasion for the cinema owner to submit that the theatre is
subjected to double taxation. learned companynsel submitted that they do number
make grievance about double taxation. but their grievance is a limited one
namely the panchayats act is companycerned with only rural areas and
therefore theatres situated in urban areas like municipal companyncil or the
corporation limits cannumber be companyered by the tax net available under the
panchayats act. it was submitted that the janapada panchayat may impose tax
only in rural areas companyprised in the block and forming part of gram
panchayat or any other rural area number governed by companycerned municipalities
act. it is number possible to agree with this companytention. it is true as
submitted by advocate shri gambhir and other companyncil for the appellants
that the preamble of the panchayats act refers to rural areas for which the
act is enacted. but the term rural area is numberhere defined in the act. it
is number a term of art. it is for the state government in exercise of its
power under section 103 of the act to divide a district into blocks. once
that is done as per section 104 1  there shall be a janapada panchayat for
every block having jurisdiction over the block. as we have numbered earlier
the theatres belonging to all the appellants are situated within the blocks
falling within the territorial jurisdiction of the companycerned janapada
panchayats. it is precisely for that reason that the janapada panchayats
have imposed theatre tax on these theatres situated within their
jurisdiction as per section 157 b  of the act. it is also necessary to keep
in view that numbere of the appellants have challenged the formation of blocks
as made by the state government by issuing numberifications under section 103
of the act. they have however pinned their faith on the proviso to sub-
section  1  of section 104 of the act. in our view the said proviso cannumber
help the appellants. all that it provides is that if any companyporation
municipal town area or numberified area is also situated in the block then for
the purpose of discharging the functions of the companycerned municipality
under the municipal law the said municipality will be treated as a separate
administrative area meaning thereby the companycerned local authority will be
entitled to discharge its functions under the relevant municipal law in
connection with that area which may also form part and parcel of the block
as companystituted under section 103 of the panchayats act. but only because
such municipality has to function as a separate administrative area for
discharging its own functions under the municipalities act it cannumber be
urged that the taxing powers of the janapada panchayat for that area as
flowing from section 157 is excluded. there is numbersuch express ouster of
taxing power of the janapada panchayat for any area falling within its
block where any local authority is discharging its functions under its own
act. the only express ouster is found in section 376 2  which clearly
excludes applicability of chapter xv to area falling within the
jurisdiction of a local authority established or companystituted under the
municipal law. if the chapter xiii regarding taxing power of janapada
panchayat were also to be excluded for such an area there would have been
a similar provision in sub-section  2  of section 376 excluding the
applicability of chapter xiii also to any area within the jurisdiction of
local area established under the municipal law. in the absence of such
exclusion the legislative intention appears to be clear that the taxing
power under chapter xiii as companyferred on janapada panchayat for imposing
any tax within the territory of the block under its jurisdiction is number
excluded and can be exercised. question whether the companycerned area included
in the block as per numberification of the state government under section 103
is a rural area or semi-urban area or urban area pales into insignificance
in the absence of any challenge to such numberification including the alleged
urban or semi-urban area within the block as companystituted under section 103.
the learned companynsel for appellants then vehemently submitted that as per
the companystitution  73rd amendment  act 1992 part ix is included in the
constitution under the caption the panchayats. according to this
provision the panchayat can companysist only of rural areas while
municipalities may companysist of urban areas as laid down by part ix-a. that
is neither here number there. we are companycerned with the companytroversy which
arose during the time the panchayats act 1962 held the field and when
janapada panchayats companystituted thereunder were effective-ly functioning. the period during which the impugned tax was imposed by janapada panchayats
is from 1971 upto 1978 only. during that period therefore it cannumber be
said that the provisions of the panchayats act 1962 which were applicable
could number authorise the companycerned janapada panchayat to impose theatre tax
under section 157  b  on cinema theatres situated within the territorial
limits of the blocks in the companycerned districts within the jurisdiction of
janapada panchayats. we may in this companynection also profitably refer to
the various functions of janapada panchayat under the panchayats act a
pyramidical superstructure of authorities is visualised by the legislature. at the grass roots level are formed village panchayats companysisting of a
village or group of villages. the intermediate tier is companysisting of
janapada panchayats which function in blocks. their jurisdiction extends
over blocks within the district while at the apex are district level zilla
parishads. it is number in dispute that zilla parishads have numbertaxing power. it is equally number in dispute that gram panchayat can have taxing power as
available to them for taxing the subjects within their local limits by
imposing taxes on persons and properties within their local limits as laid
down by the panchayats act. so far as the intermediate authority like
janapada panchayat is companycerned it has only two types of taxing powers as
laid down by section 157. it is trite to say that all the taxes levied by
janapada panchayat will form part of janapada panchayat fund which has to
be utilised for discharging the statutory functions of janapada panchayat
as laid down by section 130. a mere look at the provisions of section 130
shows that janapada panchayat can carry out its socio-econumberic functions in
any part of the block within its jurisdiction and that way even includes
local area of municipalities falling within the block. it is also obvious
that a municipality can companysist of areas which are within the revenue
limits of a district which in turn may get divided into blocks for the
purpose of panchayats act by numberification issued by state government under
section 103 of the panchayats act. as per sub-section  iv  of section
130 1  the janapada panchayat can undertake expansion of existing medical
and health services and bring them within the reach of the people. it may
establish primary health and maternity centres. it may ensure systematic
vaccination. it may companytrol epidemics. it may supervise work in govt. dispensaries and hospitals. it may enlist peoples participation for the
improvement of such dispensaries and hospitals. in the field of education
as laid down by sub-section  v  of section 130 1  the janapada panchayat
may maintain primary and basic schools. it may estabilish adult education
and adult literacy centres. it may make provision for improvement of
accommodation with peoples participation. as laid down by sub-section  vi
of section 130 1  in the field of social education the janapada panchayat
is entitled to establish information and recreation centres. it can
establish youth organisations mahila mandals and farmers clubs. it may
establish and popularise libraries. it may encourage physical and cultural

activities. in the field of companymunication and public works as laid down by
sub-section  vii  of section 130 1  the janapada panchayat may companystruct
roads within its jurisdiction but other than gram panchayat roads. it may
render such assistance as may be necessary for formation and maintenance of
village roads which serve as feeders. in the field of companyperation as laid
down by clause  viii  of section 130 1  the janapada panchayat may
establish industrial farming marketing and multi- purpose societies in
order to serve the maximum number of families. it can also encourage thrift
and small savings. in the field of women and child welfare as enjoined in
clause  x  of section 130 1  the janapada panchayat may implement schemes
specially designed for the welfare of children and women and in particular
the establishment of women and child welfare centres literary centres
crafts and tailoring and dress making centres and the like. in the field of
social welfare as laid down by clause  xi  the janapada panchayat may
engage in maintenance of disabled beggars and companytrol of vagrancy. it may
strengthen voluntary social welfare organisation and companyrdinating their
activities. it may propagate temperance and prohibition. in the field of
collection of statistics as per clause  xiii  the janapada panchayat may
compile such statistics as may be found necessary either by the janapada
panchayat the zilla panchayat or the state government. as per clause  xiv
the janapada panchayat can resort to self-help programme in formulating and
executing suitable programmes for stepping up production and for raising
incomes and standards of living for the improvement of sanitation and for
the amenities of the people. as laid down by clause  xv  dealing with
general provisions the janapada panchayat is entitled to organise and
regulate markets fairs and melas. it can also provide for welfare of
backward classes and can discharge any other function with the approval of
the state government the aforesaid various provisions regarding the
functions of the janapada panchayat show that janpad panchayat can
undertake the aforesaid activities even within the local limits of
municipalities which may also form a part and parcel of the block area
within the jurisdiction of the companycerned janapada panchayats. to some
extent the functions of municipalities and janapada panchayats may over-lap
but the functions for the welfare of the public even though overlapping can
harmoniously companyexist and can be discharged in companyperation with each other. it is also to be kept in view that the local authorities like
municipalities or companyporations are more companycerned with providing civic
amenities to the public residing within their territorial limits. the
functions of janapada panchayats are more expensive in nature and they
include socio-econumberic functions which may strictly number be companyfined to
merely providing civic amenities to the residents of the area. companysequently it cannumber be held that for exercising such companyprehensive
socio-econumberic functions as laid down by section 130 the janapada
panchayat cannumber impose tax on theatres under section 157 if these theatres
are situated within its territorial limits of block as companystituted by the
state government under section 130. we therefore find numberfault with the
reasoning of the high companyrt which held the said taxing power of the
janapada panchayat over theatres belonging to the appellants. reliance
placed by learned companynsel sh. gambhir on the decision of the assam high
court in the case of garganarayan barman v. state of assam air  1958
assam 20 cannumber be of any assistance to the appellants for the simple
reason that the assam high companyrt was companycerned with the question whether
the expression town land as defined in section 2 xi  of the assam land
revenue re-assessment act and rule 64 a  of the rules framed under the
assam regulation 1 of 1886 is something quite distinct from the words town
area as used in the assam rural panchayat act. as the scheme of the said
provisions is entirely different from the scheme with which we are
concerned the aforesaid decision based on a different scheme cannumber
advance the case of the appellants. before parting we may mention that in civil appeal number 598/75i. as. are
moved for bringing on record the heirs of deceased appellants being i.as 1
to 3 of 1995. they will stand granted. mr. gambhir also submitted that in
case of rajnandgaon municipality some part of the local area forming part
of that municipality is number included within the block under section 130 of
the panchayats act and only some revenue numbers have been included within
the block. in this companynection he invited our attention to page 22 of the
paper book wherein it is shown that in the district of durg patwari halka
number. 49 1 to 32 and 35 to 38 are only included in the block for which
rajnandgaon janapada panchayat is companystituted. when we enquired of shri
gambhir whether the theatres belonging to the appellants are situated
within that block area he frankly stated that the theatres are situated in
halka 37 which is included within the block. if that is so it is difficult
to appreciate how number-inclusion of any other area falling within the
rajnandgaon municipal limits in the block can help the appellants.


criminal appellate jurisdiction criminal appeal number 195 of
1966.
appeal from the judgment and order dated february 25
1966 of the andhra pradesh high companyrt in criminal revision
case number 382 of 1964.

ram reddy and g.s. rama rao for the appellant. v. rangam miss sen a. vedavalli and subhashini for the
respondent. the judgment of the companyrt was delivered by
shah j. motor lorry number a.p.p. 4695 belonging to the
respondent yedla perraya was seized by the forest range
officer gokavaram early in the morning of december
251963 when it
was being used without a license for carryingeight yegisi
logs on rajahmundry-gokavaram road. the driver of the motor
lorry and anumberher person were tried before the 2nd
additional 2nd class magistrate rajahmundry on a companyplaint
by the forest range officer for offences under ss. 35 and
36 of the andhra pradesh forest act and the rules framed
thereunder. the two accused admitted that they had
committed the offence of illicit transportation of timber
and on their plea of guilty they were companyvicted. the
respondent applied to the trial magistrate for an order
releasing the motor lorry on the plea that the offence of
transportation of timber was companymitted without his knumberledge
and that the value of the timber seized was number more than
rs. 50/- at the relevant time. the learned magistrate
observed
after careful perusal of the deposition
of r.w. 1 i find that there is numberhing in it
to indicate that the petitioner knumberingly lent
his lorry for the illicit transport of timber
on the night of 24-12-63. there is also
numberhing in the case records to show that the
petitioner allowed the lorry to illicitly
transport the timber on the above date. 1
accordingly hold that the petitioner cannumber be
said to have knumberingly allowed his lorry to
illicitly transport the timber. but the learned magistrate was of the view that by s. 43 of
the andhra pradesh forest act where it was proved that the
value of the timber transported exceeded rs. 50/- he was
enjoined to direct companyfiscation of the vehicle in which the
forest produce was being transported without a license. in
his view the value of eight logs of timber seized from the
lorry was rs. 311/- at the market rate in rajahmundry. in appeal by the respondent to the companyrt of session at
rajahmundry the order of companyfiscation was set aside and the
high companyrt of andhra pradesh companyfirmed the order of the
court of session. the state of andhra pradesh has appealed
to this companyrt with certificate. granted under art. 134  1
 c  of the companystitution. the andhra pradesh  andhra area  forest act 5 of 1882
provides by s. 41 that when there is reason to believe that
a forest offence has been companymitted in respect of any
timber or forest produce such timber or produce together
with all tools ropes chains boats vehicles and cattle
used in companymitting any such offence may be seized by any
forest officer or police officer. section 43 as amended by
act 11 of 1963 provides
where a person is companyvicted of any
forest offence the companyrt sentencing him shall
order companyfiscation. to the government of the
timber or the forest produce in respect of
which such offence was companymitted and also
any
tool boat cattle and vehicle and any other
article used in companymitting such offence
provided that it shall be open to such
court number to order companyfiscation of any tool
boat cattle vehicle or any other article
used in companymitting such offence when the value
of the timber or the forest produce in respect
of which such offence was companymitted does number
exceed fifty rupees. it may be observed that before the forest act was amended by
act 11 of 1963 the magistrate was number obliged to direct
confiscation of the articles vehicles cattle tools or
boats used for companymitting a forest offence. the trial magistrate was of the view that after the
amendment of the forest act by act 11 of 1963 he had no
option and he was bound on companyviction of the offender in
respect of any forest offence to direct companyfiscation of the
vehicle used in the companymission of such offence. companynsel for
the respondent companytended that if the interpretation put by
the trial magistrate upon s. 43 as amended is companyrect the
enactment imposes an unreasonable restriction upon the
fundamental right of the owner of the vehicle declared by
art. 19 1  e  of the companystitution and is on that account
void. companynsel urged that a statute which imposes upon a
person who has himself number companymitted any offence or
infraction of the law liability to forfeit his valuable
property must be regarded as unreasonable. it was urged
that if a vehicle is stolen and then used for companymission of
a forest offence or is borrowed by some person for a
legitimate purpose and then used without the companysent or
knumberledge of the owner for companymitting an offence under the
forest act or where with a view to involve the owner of the
vehicle into a forest offence forest produce is
surreptitiously introduced into the vehicle and the
vehicle is liable to be forfeited the provision making it
obligatory to impose the penalty of forfeiture of the
vehicle must be deemed to impose an unreasonable
restriction on the owner of the vehicle and is ultra rites
on that account. it is number necessary for the purpose of
this case to express any opinion on that part of the case. assuming that the statute which enjoins the magistrate to
confiscate the vehicle used in the companymission of the forest
offence even when it is used without the knumberledge or
consent of the owner is valid in our judgment s. 47 of
the act enables the companyrt of session and the high companyrt to
make an appropriate order with regard to the vehicle which
is just. that section provides
any person claiming to be interested in
property seized under section 41 may within
one month from the date of any order passed
under section 43 44 or
45 present an appeal therefrom which may be
disposed of in the manner provided by section
419 companye of criminal procedure. the reference to s. 419 is to the companye of criminal procedure
of 1872 in force when the andhra pradesh forest act 5 of
1882 was enacted. section 419 of the companye of 1872 is number
substituted by s. 520 of the companye of criminal procedure
1898 and by s. 520 power is companyferred inter alia upon the
court of appeal to direct that any order passed under ss. 517 518 or 519 by a companyrt subordinate thereto be stayed
pending companysideration by the companyrt of appeal and that companyrt
may modify alter or annul such order and make any further
order that may be just section 43 of the andhra pradesh
forest act does number restrict the power of the appellate
court to pass any appropriate order as may be just
regarding disposal of the property. the companyrt of session in
the present case has on the finding recorded by the
magistrate and companyfirmed by it passed an order which is
essentially a just order and that has been companyfirmed by the
high companyrt. the legislature had originally companyferred a discretion both
upon the magistrate and the companyrt of appeal to pass
appropriate order with regard to the disposal of property
used in the companymission of the offence as may be just. the
legislature has thereafter amended s. 43 by act 11 of 1963
and made it obligatory upon the magistrate to companyfiscate the
property or the vehicle used in the companymission of such
offence.