No NRI Arrest without Govt Node

                  IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO.                OF 2008
                 (Arising out of SLP (Crl.) No.6004 of 2006)
Fatma Bibi Ahmed Patel                                   … Appellant

                                   Versus

State of Gujarat & Anr.                                  …Respondents
                              JUDGMENT

S.B. Sinha, J.

1.    Leave granted.

2.     Interpretation of Section 4 of the Indian Penal Code and Section 188

of the Code of Criminal Procedure fall for our consideration in this appeal

which arises out of a judgment and order dated 12.04.2006 passed by the

High Court of Gujarat at Ahmedabad in Criminal Revision Application No.

358 of 2005 dismissing the Criminal Revision filed by the appellant herein.

3.    Son of the appellant Hanif Ahmed Patel was married to the

complainant – respondent on 22.4.2002. Appellant indisputably is a citizen
                               

of Mauritius.    Her son and daughter-in-law at all material times were

residing at Kuwait.

      A Complaint Petition, however, was filed before the Chief Judicial

Magistrate, Navsari by the said respondent alleging physical and mental

torture by her husband (the first accused). Allegations primarily against the

appellant therein were that the first accused used to consult her and she used

to instigate him.

      As the couple was residing at Kuwait, indisputably the entire cause of

action arose at Kuwait. The learned Chief Judicial Magistrate, Navsari,

however, took cognizance of the aforesaid offences and directed issuance of

summons to the appellant by an order dated 30.5.2003.

      An application was filed by her stating that the complaint petition

filed without obtaining the requisite sanction under Section 188 of the Code

of Criminal Procedure was bad in law. The same was dismissed.

      A joint application with her son was thereafter filed by the appellant

for quashing of the entire complaint petition which was withdrawn.

      Appellant, however, filed a fresh application on or about 6.12.2004

raising a contention that as she is a citizen of Mauritius and as the entire

cause of action took place at Kuwait, the order taking cognizance is bad in
                                 

law. Whereas the learned trial judge rejected the said plea, the Revisional

Court on a revision application filed by the appellant thereagainst, allowed

the same.

      Respondent No. 2 moved the High Court of Gujarat aggrieved

thereby which by reason of the impugned order has been allowed.

4.    Mr. Sudarshan Rajan, learned counsel appearing on behalf of the

appellant, submitted that having regard to the provisions contained in

Section 4 of the Indian Penal Code and Section 188 of the Code of Criminal

Procedure, the order taking cognizance as against the appellant was bad in

law. Reliance in this behalf has been placed on Central Bank of India Ltd.

vs. Ram Narain[AIR 1955 SC 36].

5.    Mr. Pawan Kumar Bahl, learned counsel appearing on behalf of the

respondent, on the other hand, urged that having regard to the fact that the

appellant having filed an application for quashing earlier on the ground of

non-compliance of the provisions of Section 188 of the Code of Criminal

Procedure as also having filed a quashing application which stood

withdrawn, the said application was not maintainable.

      Offences said to have been committed by the appellant in the

complaint petition were under Sections 498A and 506(2) of the Indian Penal
                                 

Code. Provisions of the Indian Penal Code and the Code of Criminal

Procedure would, therefore, indisputably apply.

      Section 4 of the Indian Penal Code reads as under:-

            “4. Extension of Code to extra-territorial offences.-
            The provisions of this Code apply also to any offence
            committed by–

            (1) any citizen of India in any place without and 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 committed outside India which, if committed in
            India, would be punishable under this Code.

                               Illustration

            A, who is a citizen of India, commits a murder in
            Uganda. He can be tried and convicted of murder in any
            place in India in which he may he found.”
      Section 188 of the Code of Criminal Procedure reads as under:

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             “Section 188 – Offence committed outside India.
            -When an offence is committed outside India–
               (a) by a citizen of India, whether on the high seas or
               elsewhere; or

               (b) by a person, not being such citizen, on any ship or
               aircraft registered in India,
                                      

                he may be dealt with in respect of such offence as if it had
                been committed at any place within India at which he may
                be found:

                Provided that, notwithstanding 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.”

          In our constitutional scheme, all laws made by Parliament primarily

are applicable only within the country. Ordinarily, therefore, all persons

who commit a crime in India can be tried in any place where the offence is

committed. Section 41 of the Indian Penal Code, however, extends the

scope of applicability of the territorial jurisdiction of the court of India to

try a case, the cause of action of which took place outside the geographical

limits.      Parliament indisputably may enact a legislation having extra

territorial application but the same must be applied subject to fulfillment of

the requirements contained therein.

          There are materials before us to show that the appellant is a citizen of

Mauritius. She has been visiting India on Visas issued by India. She, thus,

indisputably is not a citizen of India. She might have been staying in India

with her relatives as has been contended by the complainant, but it has not

been denied and disputed that she is not a citizen of India. If she is not a

citizen of India having regard to the provisions contained in Section 4 of the
                                   

Indian Penal Code and Section 188 of the Code of Criminal Procedure, the

order taking cognizance must be held to be illegal.

        In terms of Section 4 of the Indian Penal Code, the Indian courts will

have jurisdiction to try an accused only if the accused is a citizen of India

even if the offence was committed outside India or by any person on any

ship or aircraft registered in India wherever it may be. Neither of the

aforementioned contingencies is attracted in the instant case. Section 188 of

the Code of Criminal Procedure also deals with offences committed outside

India. Clause (a) brings within its sweep a citizen of India, whether on the

high seas or elsewhere, or by a person, although not citizen of India when

the offence is committed on any ship or aircraft registered in India.

        In view of the fact that the offence is said to have been committed in

Kuwait, the provisions of the Indian Penal Code or the Code of Criminal

Procedure cannot be said to have any application.

        This aspect of the matter has been considered by this Court in

Central Bank of India Ltd. vs. Ram Narain [supra], wherein it was clearly

held:

              “The learned Attorney-General contended that Ram
              Narain was at the time when sanction for his prosecution
              was given by the East Punjabn Government, a citizen of
              India residing in Hodel and that being so, he could be
              tried in India being a citizen of India at that moment, and
                      

having committed offences outside India, and that the
provisions of Section 4 I.P.C. and Section 188, Cr. P.C.
were fully attracted to the case.

In our opinion, this contention is not well founded. The
language of the sections plainly means that if at the time
of the commission of the offence, the person committing
it is a citizen of India, then even if the offence is
committed outside India he is subject to the jurisdiction
of the courts in India. The rule enunciated in the
sections is based on the principle that qua citizens the
jurisdiction of courts is not lost by reason of the venue of
the offence. If, however, at the time of the commission
of the offence the accused person is not a citizen of
India, then the provisions of these sections have no
application whatsoever.

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A foreigner was not liable to be dealt with in British
India for an offence committed and completed outside
British India under the provisions of the sections as they
stood before the adaptations made in them after the
partition of India. Illustration (a) to Section 4, I.P.C.
delimits the scope of the section. It indicates the extent
and the ambit of this section. It runs as follows:

      “(a) A, a coolie, who is a Native Indian
      subject commits a murder in Uganda. He can
      be tried and convicted of murder in any place
      in British India in which he may be found.”

In the illustration, if (A) was not a Native Indian subject
at the time of the commission of the murder the
provisions of Section 4, I.P.C. could not apply to his
case. The circumstance that after the commission of the
offence a person becomes domiciled in another country,
or acquires citizenship of that State, cannot confer
jurisdiction on the courts of that territory retrospectively
for trying offences committed and completed at a time
when that person was neither the national of that country
nor was he domiciled there.”
                                 

      Strong reliance has been placed by the learned counsel appearing on

behalf of the respondents on Ajay Agarwal vs. Union of India [AIR 1993

SC 1637]. The question which arose for consideration therein was that as to

whether a sanction of Central Government for prosecution in terms of

Section 188 of the Code of Criminal Procedure was necessary. The said

question was answered in the negative stating:
            “8. The question is whether prior sanction of the Central
            Govt. is necessary for the offence of conspiracy under
            proviso to Section 188 of the Code to take cognizance of
            an offence punishable under Section 120-B etc. I.P.C. or
            to proceed with trial In Chapter VA, conspiracy was
            brought on statute by the Amendment Act, 1913 (8 of
            1913). Section 120-A of the I.P.C. defines ‘conspiracy’ to
            mean that when two or more persons agree to do, or
            cause to be done an illegal act, or an act which is not
            illegal by illegal means, such an agreement is designated
            as “criminal conspiracy. No agreement except an
            agreement to commit an offence shall amount to a
            criminal conspiracy, 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 conspiracy. It
            is not necessary that each conspirator must know all the
            details of the scheme nor be a participant at every stage.
            It is necessary that they should agree for design or object
            of the conspiracy. Conspiracy is conceived 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 constitute 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 common law definition of ‘criminal conspiracy’ was
            stated first by Lord Denman in Jones’ case (1832 B &
            AD 345) that an indictment for conspiracy must “charge
                                  

            a conspiracy 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 conspiracy consists not merely in the
                  intention of two or more, but in the agreement
                  of two or more to do an unlawful act, or to do a
                  lawful act by unlawful means. So long as such
                  a design rests in intention only it is not
                  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 contra actum, capable of being
                  enforced, if lawful, punishable of for a criminal
                  object or for the use of criminal means.
                                               (emphasis supplied)”
      The court therein was concerned with a charge of conspiracy. It was

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in the aforementioned context opined that no sanction would be required.

      R. M. Sahai, J. in his concurring judgment stated:

            “Language of the section is plain and simple. It operates
            where an offence is committed by a citizen of India
            outside the country. Requirements are, therefore, one –
            commission of an offence; second – by an Indian citizen;
            and third – that it should have been committed outside
            the country. Out of the three there is no dispute that the
            appellant is an Indian citizen. But so far the other two are
            that the conspiracy to forge and cheat the bank was
            hatched by the appellant and others in India. Whether it
            was so or not, cannot be gone into at this stage.”
                                  

      The learned counsel submitted that as in the earlier application, the

appellant merely complained of the absence of any sanction, this application

should not be entertained. We do not agree. Principles analogous to res

judicata have no application with regard to criminal cases. An accused has

a fundamental right in terms of Article 21 of the Constitution of India to be

proceeded against only in accordance with law. The law which would apply

in India subject of course to the provisions of Section 4 of the Indian Penal

Code and Section 188 of the Code of Criminal Procedure is that the offence

must be committed within the territory of India. If admittedly, the offence

has not been committed within the territorial limits of India, the provisions

of the Indian Penal Code as also the Code of Criminal Procedure would not

apply. If the provisions of said Acts have no application as against the

appellant, the order taking cognizance must be held to be wholly illegal and

without jurisdiction.    The jurisdictional issue has been raised by the

appellant herein.    Only because on a mistaken legal advise, another

application was filed, which was dismissed, the same by itself, in our

opinion, will not come in the way of the appellant to file an appropriate

application before the High Court particularly when by reason thereof her

fundamental right has been infringed.

      This Court, in a matter like the present one where the jurisdictional

issue goes to the root of the matter, would not allow injustice to be done to a
                                 
party. The entire proceedings having been initiated illegally and without

jurisdiction, all actions taken by the court were without jurisdiction, and

thus are nullities.   In such a case even the principle of res judicata

(wherever applicable) would not apply.

      In Chief Justice Of Andhra Pradesh And Others v. L. V. A. Dixitulu

And Others [AIR 1979 SC 193 at 198], this Court held:

            “If the argument holds good, it will make the decision of
            the Tribunal as having been given by an authority
            suffering from inherent lack of jurisdiction. Such a
            decision cannot be sustained merely by the doctrine of
            res judicata or estoppel as urged in this case.”

      [See also Union of India v. Pramod Gupta (D) by LRs and Ors.,
(2005) 12 SCC 1]
      Where a jurisdictional issue is raised, save and except for certain

categories of the cases, the same may be permitted to be raised at any stage

of the proceedings.

6.    For the reasons aforementioned, the impugned judgment cannot be

sustained. It is set aside accordingly. The appeal is allowed with costs.

Counsel’s fee assessed at Rs.25,000/- (Rupees twenty five thousand only).

……………………………J.  ……………………………….J.
[S.B. Sinha]                             [Lokeshwar Singh Panta]
            
                  
                          

New Delhi;
May 13, 2008

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