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CASE NO.:

Special Leave Petition (crl.) 99 of 2004

PETITIONER:

Om Hemrajani

RESPONDENT:

State of U.P. & Anr.

DATE OF JUDGMENT: 25/11/2004

BENCH:

Y.K. Sabharwal & D.M. Dharmadhikari

JUDGMENT:

J U D G M E N T

Y.K. Sabharwal, J.

The interpretation of Section 188 of the Code of Criminal Procedure,

1973 (Code) falls for determination in this petition. The said section reads

as under :

"188. Offence committed outside India,\027When

an offence is committed outside India\027

(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."

The sole question is about the interpretation of the expression 'at

which he may be found' in the aforesaid section. On whom, under Section

188, does the responsibility to find the accused lies\026 the complainant, the

Police or the Court? The question has arisen under the following

circumstances :

Respondent No.2, a Dubai based bank, has filed a complaint against

the petitioner and another in the Court of Special Judicial Magistrate (CBI)

under Sections 415, 417, 418 and 420 read with Section 120-B IPC. It has

been, inter alia, alleged in the complaint that the petitioner obtained loans,

executed various documents in proof of his ability to discharge the bank

liability and gave his personal guarantee. But instead of discharging the

liability, the accused absconded without liquidating his liability to the bank.

The accused cheated and defrauded the bank in obtaining loan facilities

knowing fully well that he had no intention to pay it back and fled from

UAE. The Magistrate took cognizance of the offence and issued

processes against the person arraigned in the complaint and also issued

non-bailable warrants.

The petitioner sought quashing of the complaint case by filing a

petition under Section 482 of the Code before the High Court and also

challenged the order of the Magistrate dated 6th October, 2003 taking

cognizance of the offence along with non-bailable warrants issued against

him. The main contention urged before the High Court was that no cause

of action or part thereof had occurred within the territorial jurisdiction of the

court at Ghaziabad; the petitioner was not residing within the jurisdiction of

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that Court nor the complainant had any office at Ghaziabad and, thus,

court at Ghaziabad had no jurisdiction to take cognizance of the offence.

In terms of the impugned judgment, the High Court has rejected the

contention that Ghaziabad court lacks jurisdiction to entertain the

complaint. Challenging the High Court's judgment, Mr. Vijay Kotwal,

learned senior advocate, submits that the High Court erroneously

construing Section 188 has come to the conclusion that the Special

Judicial Magistrate at Ghaziabad has jurisdiction to entertain the complaint.

Learned counsel submits that the interpretation placed by the High Court

on Section 188 is not legal and, if upheld, it would cause, as in the present

case, unnecessary harassment to the accused. Our attention has also

been drawn to para 21 of the complaint which reads as under :

"21. JURISDICTION

That this Hon'ble Court has territorial

jurisdiction to try, inquire and take cognizance. In

the present case, the accused persons have

conspired together in India and in furtherance of

their conspiracy and common intention of

cheating and defrauding the Complainant Bank

opened an account with the Complainant Bank,

availed of various loan facilities knowing fully well

that had no intention of paying back the same,

fled from UAE. It may be pertinent here to

mention that the accused has business all over

India and abroad and for that purpose travels all

over India and abroad."

Learned counsel contends that vague averments as above have

been made and the complainant knows that the petitioner lives at Mumbai

and has also business operations there, no cause of action took place at

Ghaziabad and even the complainant bank has no operations at

Ghaziabad. The submission is that nothing has been stated in the

complaint as to what happened in Ghaziabad. Mr. Kotwal contends that

when Section 188 states that offence committed outside India by an Indian

citizen may be dealt with at any place within India at which the offender

may be found, it is implicit that the competent Court at the place where the

offender is likely to be found will have jurisdiction and not any court which

the complainant may choose. The likelihood of the availability of the

offender is implicit in the expression used in Section 188 of the Code, is

the submission, otherwise it would mean that the complaint may be filed in

any part of India, which could never have been the intention of the law.

The argument looks very attractive at the first blush but that is all since its

deeper consideration shows that it has no substance.

Representing the complainant bank, respondent No.2, Mr. Vinod A.

Bobde, learned Senior Counsel, submits that unlike civil proceedings the

residence of the offender as a concept of part of cause of action has no

relevance in construing the provisions of the Code, particularly, Section

188. Learned counsel submits that the scheme of Chapter XIII clearly

shows that the expression 'at which he may be found' in Section 188 only

means the place where the accused may either appear voluntarily or may

be brought by the Police in execution of the warrants of arrest since the

responsibility to find the accused, within the meaning of Section 188, is

only of the court and not that of the complainant or the Police. Learned

counsel further submits that the law in regard to interpretation of Section

188 has been well settled for over 150 years.

Let us examine the provisions of Chapter XIII of the Code which

deals with the jurisdiction of the criminal courts in inquiries and trials.

Section 177 postulates that ordinarily offence shall be inquired into

and tried by a court within whose local jurisdiction it was committed.

Section 178, inter alia, deals with situations when it is uncertain in which of

several local areas, an offence is committed or partly committed in one

area and partly in another. The section provides that the offence can be

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inquired into or tried by a court having jurisdiction over any of the local

areas mentioned therein. Under Section 179, offence is triable where act

is done or consequences thereof ensued. Section 180 deals with the

place of trial where act is an offence by reason of its relation to other

offence. It provides that the first mentioned offence may be inquired into or

tried by a court within whose local jurisdiction either act was done. In all

these sections, for jurisdiction the emphasis is on the place where the

offence has been committed. There is, however, a departure under

Section 181(1) where additionally place of trial can also be the place where

the accused is found, besides the court within whose jurisdiction the

offence was committed. But the said section deals with offences

committed by those who are likely to be on move which is evident from

nature of offences mentioned in the section. Section 181(1) is in respect of

the offences where the offenders are not normally located at a fixed place

and that explains the departure. Section 183 deals with offences

committed during journey or voyage. Section 186 deals with situation

where two or more courts take cognizance of the same offence and in

case of doubt as to which one of the courts has jurisdiction to proceed

further, the High Court decides the matter. Section 187 deals with a

situation where a person within local jurisdiction of a Magistrate has

committed an offence outside such jurisdiction. The Magistrate can

compel such a person to appear before him and then send him to the

Magistrate which has jurisdiction to inquire into or try such offence.

Under the aforesaid circumstances, the expression abovenoted in

Section 188 is to be construed. The same expression was also there in

the old Code. From the scheme of Chapter XIII of the Code, it is clear that

neither the place of business or place of residence of the petitioner and for

that matter of even the complainant is of any relevance. The relevant

factor is the place of commission of offence. By legal fiction, Section 188

which deals with offence committed outside India, makes the place at

which the offender may be found, to be a place of commission of offence.

Section 188 proceeds on the basis that a fugitive from justice may be

found anywhere in India. The finding of the accused has to be by the court

where accused appears. From the plain and clear language of the section,

it is evident that the finding of the accused cannot be by the complainant or

the Police. Further, It is not expected that a victim of an offence which was

committed outside India should come to India and first try to ascertain

where the accused is or may be and then approach that court. The

convenience of such a victim is of importance. That has been kept in view

by Section 188 of the Code. A victim may come to India and approach any

court convenient to him and file complaint in respect of offence committed

abroad by the Indian. The convenience of a person who is hiding after

committing offence abroad and is fugitive from justice is not relevant. It is

in this context, the expression in question has to be interpreted. Section

188 has been subject matter of interpretation for about 150 years.

In Reg. v. Benito Lopez [1858 Cr.L.C. 431], dealing with the

question of jurisdiction of English courts in respect of offences committed

on the high seas by foreigners on board English ships, decision was

rendered by 14 Judges, i.e., all the judges of the Court except Bramwell, B.

The accused was held to have been found within jurisdiction of the county

where he was tried. The decision refers to principles of International Law

that a person is liable to be punished of all such offences wheresoever

committed. Interpreting the word 'found' in provision under consideration

in that case, which was to the following effect :

"If any person being a British subject charged with

having committed any crime or offence on board

any British ship on the high seas, or in any foreign

port or harbour; or if any person, not being a

British subject, charged with having committed

any crime or offence on board any British ship on

the high seas, is found within the jurisdiction of

any court of justice in Her Majesty's dominions,

which would have cognizance of such crime or

offence if committed within the limits of its

ordinary jurisdiction, such court shall have

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jurisdiction to hear and try the case as if such

crime or offence had been committed within such

limits: provided that nothing contained in this

section shall be construed to alter or interfere with

the act 12 & 13 Vict. C. 96."

it was held that the word 'found' is used in its most extensive sense,

and was intended to include all cases by giving jurisdiction to try at any

place where the prisoner might happen to be at the time of trial. The

object of the provision was to get rid of all questions about local

jurisdiction. Lord Campbell, Chief Justice, in his opinion, dealing with the

contention that if the prisoner was brought within the jurisdiction of the

court against his will, he cannot be said to have been found there within

the meaning of the Act, held that a man is 'found', within the meaning of

that Act, in any place where he is actually present.

In Empress v. Maganlal [ILR Bom Series (Vol.6) 622], decided in

the year 1882 interpreting the word 'found', it was opined that it was used

to confer the jurisdiction to the court of a place where the accused is

actually found, i.e., produced before the Court and not where a person is

discovered. In other words, it would mean that an accused may be

discovered by the Police at a place not within the jurisdiction of the Court

enquiring or trying but that is not the place contemplated by Section 188.

For the purpose of jurisdiction, it would be the court where he is actually

produced or appears which can said to have found him. As earlier stated,

the finding of the accused is to be by the Court inquiring or trying and not

by the Police.

The aforesaid decisions were referred to and relied upon in

Emperor v. Vinayak Damodar Sarvarkar [1910 (35) ILR 223]. The

contention that the accused is charged before a Magistrate with an offence

under the Penal Code and was brought there illegally from a foreign

country was rejected. An illustration was given in that \026 a man commits a

crime, say murder, in a country but he escapes to some other country

before he is apprehended, the Police finding him in some other country,

brings him to England and produces him before a Magistrate. It would not

be open to the Magistrate to refuse to commit him. The Court held that "If

he were brought here for trial, it would not be a plea to the jurisdiction of

the Court that he had escaped from justice, and that by some illegal means

he had been brought back".

The last decision on interpretation of Section 188 is of Justice Vivian

Bose in Sahebrao Bajirao v. Suryabhan Ziblaji & Ors.. [AIR 1948

Nag.251]. The question posed was as to who is to do the 'finding'.

Learned Judge held that the word 'found' in Section 188 means found by

the Court at the time when the matter comes up for trial, that is to say, any

Court which is otherwise competent to try the offence can take seisin the

moment the accused appears in its presence. How the accused gets there

is immaterial. It does not matter whether he comes voluntarily or in answer

to summons or under illegal arrest. It is enough that the Court should find

him present when it comes to take up the matter.

In our opinion, the law has been correctly enunciated by in the

aforesaid case. The scheme underlying Section 188 is to dispel any

objection or plea of want of jurisdiction at the behest of a fugitive who has

committed an offence in any other country. If such a person is found

anywhere in India, the offence can be inquired into and tried by any Court

that may be approached by the victim. The victim who has suffered at the

hands of the accused on a foreign land can complain about the offence to

a Court, otherwise competent, which he may find convenient. The

convenience is of the victim and not that of the accused. It is not the

requirement of Section 188 that the victim shall state in the complaint as to

which place the accused may be found. It is enough to allege the accused

may be found in India. The Court where the complaint may be filed and

the accused either appears voluntarily pursuant to issue of process or is

brought before it involuntarily in execution of warrants, would be the

competent Court within the meaning of Section 188 of the Code as that

Court would find the accused before him when he appears. The finding

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has to be by the Court. It has neither to be by the complainant nor by the

Police. The section deems the offence to be committed within the

jurisdiction of the Court where the accused may be found.

It is correct that as a result of the aforesaid interpretation, it is

possible for a complainant to file a complaint against an accused in any

Court in the country. But then we cannot compare the question of

convenience of the accused at the cost of victim's convenience. Between

the two, the convenience of the latter has to prevail. Regarding the abuse

of such wide option to the victim, there are enough provisions in the Code

for redressal of any particular abuse. Whether a particular case is an

abuse or not would depend on its own facts.

In view of the aforesaid, the Special Leave Petition is dismissed.