By Shramana Paul
In the Supreme Court of India
|NAME OF THE CASE
|Om Hemrajani v. State of UP & Anr (2005)
|Special Leave Petition (crl) 99 of 2004
|DATE OF THE CASE
|State of Uttar Pradesh & Anr
|Y.K Sabharwal, D.K Dharmadhikari
|Indian Penal Code, 1860 Code of Criminal Procedure, 1973
|s. 415; s. 417; s.418; s.420/ s.120 of the Indian Penal Code. s.177; s.178; s.179; s.180; s.181(1); s.183; s.186; s.187; s.188; s.482 of the Code of Criminal Procedure.
Non-bailable warrants and processes had been issued against the appellant/petitioner by a magistrate in Ghaziabad on a complaint by a Dubai-based bank, whom the appellant had allegedly taken a loan from and then absconded from the UAE without discharging his liability. This previous case was filed in the CBI court by the respondent. In the case at hand, the appellant has filed an appeal against the decision of the High Court in respect of his petition requesting the court to quash the complaint against him as the court of Ghaziabad does not have the jurisdiction to try or take cognizance of the case. The High Court had rejected the contention that the court of Ghaziabad did not have jurisdiction over the case.
The case we are discussing is a criminal case and falls under the criminal appellate jurisdiction of the Supreme Court and involves a substantial question of all. i.e. interpretation of s.188 of the Code of Criminal Procedure. The petitioner has tried to invoke the inherent powers of the court by s.482 of the CrPC to quash the previous complaint made against him. The power to quash a criminal proceeding against any accused is not explicitly provided by the Code in any of its sections but falls under the Inherent Powers of the court. Inherent powers of the court are those powers which even though not mentioned specifically in the statute, the court has to make sure justice prevails and there is fairness in adjudication.
The present appeal is against the order of the High Court on the interpretation of s.188 of CrPC which deals with offences committed outside India by a citizen of India or by any person in an Indian aircraft or ship. The Supreme Court of India which is the court of appeal in this case is not concerned with the charges against the appellant but only with the issue of interpretation of s.188 of CrPC and the power of the magistrate to take Cognizance of the previous criminal case along with the jurisdiction of the court of Ghaziabad.
The definition of cheating as per IPC – “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.”
Facts of the Case
The petitioner in this case filed a petition under s.482 of CrPC to quash a previous complaint that the respondent had filed against him. The respondent is a Dubai-based bank that had filed 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 had been alleged in that complaint that the petitioner obtained loans, executed various documents as proof of his ability to discharge the bank liability, and gave his guarantee. However, he absconded from the UAE without discharging his liabilities after that. The accused cheated and defrauded the bank to obtain loan facilities knowing full well that he had no intention to pay it back and fled from UAE. The magistrate before whom the case was presented took cognizance of the case. The petitioner then filed this current petition challenging the court’s territorial jurisdiction to take cognizance of the complaint.
The initial complaint was filed in the CBI court against the petitioner under s.415, s.417, s.418, s.420/ s.120B of IPC which deals with Cheating, Punishment for cheating, cheating with knowledge that wrongful loss may ensue to a person whose interest offender is bound to protect, Cheating and dishonestly inducing delivery of property and Punishment of criminal conspiracy respectively The main contention of the petitioner was that no cause of action or part thereof had occurred within the territorial jurisdiction of the court at Ghaziabad and it was known to the respondent that the petitioner did not reside nor does the respondent have an office in Ghaziabad. It is important here to note that the petitioner has business all over India and abroad and for that purpose travels all over India and abroad.
The High Court had rejected the contention that the Magistrate was not empowered to entertain the complaint against him and hence there was a want of jurisdiction. In his petition, the petitioner argues that the court of Ghaziabad which has issued non-bailable warrants against him did not have the jurisdiction to do so by the Code of Criminal Procedure and the High Court’s interpretation of s.188 of CrPC is erroneous and if upheld would cause undue harassment to the him. Ld Senior Advocate had submitted this appeal from the order of the High Court and was representing the petitioner in this case. The main point of adjudication by the Court, in this case, is the interpretation of s.188 of CrPC.
- Has s.188 of the Code of Criminal Procedure been properly interpreted in the High Court?
- Does the Ghaziabad court lack jurisdiction to entertain the primary complaint?
- Does the responsibility to find the accused lie on the complainant, the police or the court under s.188?
Arguments from the Appellant’s Side
- Mr Vijay Kotwal learned senior advocate, on behalf of the appellant, submits that the High Court had erroneously construed Section 188 and had 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 S. 188 is not legal and, if upheld, it would cause, as in the present case, unnecessary harassment to the accused. Which is not viable.
- Mr Kotwal contends that when s.188 states that an 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. He further says that the likelihood of finding the offender a place will decide whether or not the court having jurisdiction over that place can take cognizance of a complaint against the accused. The complaint should be filed where it is probable that the accused will be found.
- The main contention placed before the High Court in the original petition had been 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 that Court nor the complainant had any office at Ghaziabad and, thus, the court at Ghaziabad had no jurisdiction to take cognizance of the offence.
Arguments from the Respondent’s
- Learned Senior Counsel Mr Vinod A. Bobde who is representing the complainant Bank, submits that unlike civil proceedings the residence of the offender as a concept of part of the 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 s.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 issued by the court since the responsibility to find the accused, within the meaning of S.188, is only of the court and not that of the complainant or the Police.
- Learned counsel further submits that the law regarding the interpretation of S.188 has been well settled for over 150 years.
- The Indian Penal Code
S.120B: Concealing design to commit offence punishable with imprisonment.
“Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design,
if be offence committed; if the offence be not committed.—shall, if the offence is committed, be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth, and, if the offence be not committed, to one-eight, of the longest term of such imprisonment, or with such fine as is provided for the offence, or with both.”
S.415: Cheating-“ Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.”
“Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.”
S.417: “Cheating with knowledge that wrongful loss may ensue to a person whose interest the offender is bound to protect.
Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or, with fine, or with both.”
S.418: “Cheating with knowledge that wrongful loss may ensue to a person whose interest the offender is bound to protect.
Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
S.420: “Cheating and dishonestly inducing delivery of property.
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
- The Code of Criminal Procedure
S.177. “Ordinary place of inquiry and trial-Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.”
S.178. Place of inquiry or trial—”(a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed, partly in one local area and partly in another, or
(c) where an offence, is a continuing one, and continues to be committed in more local areas than one, or
(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.”
S.179. “Offence triable where act is done or consequence ensues—When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.”
S.180. “Place of trial where the act is an offence by reason of relation to another offence-When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, the first- mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either act was done.”
S.181. “Place of trial in case of certain offences—(1) Any offence of being a thug, or murder committed by a thug, of dacoity, of dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the accused person is found.”
S.183. “An offence committed on a journey or voyage- When an offence is committed whilst the person by or against whom, or the thing in respect of which, the offence is committed is in the course of performing a journey or voyage, the offence may be inquired into or tried by a Court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage.”
S.186. “High Court to decide, in case of doubt, the district where inquiry or trial shall take place. Where two or more Courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the question shall be decided-
(a) if the Courts are subordinate to the same High Court, by that High Court;
(b) if the Courts are not subordinate to the same High Court, by the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced 1 Ins. by Act 45 of 1978, s. 15 and thereupon all other proceedings in respect of that offence shall be discontinued.”
S.187. Power to issue summons or warrant for an offence committed beyond local jurisdiction- “(1) When a Magistrate of the first class sees reason to believe that any person within his local jurisdiction has committed outside such jurisdiction (whether within or outside India) an offence which cannot, under the provisions of sections 177 to 185 (both inclusive), or any other law for the time being in force, be inquired into or tried within such jurisdiction but is under some law for the time being in force triable in India, such Magistrate may inquire into the offence as if it had been committed within such local jurisdiction and compel such person in the manner hereinbefore provided to appear before him, and send such person to the Magistrate having jurisdiction to inquire into or try such offence, or, if such offence is not punishable with death or imprisonment for life and such person is ready and willing to give bail to the satisfaction of the Magistrate acting under this section, take a bond with or without sureties for his appearance before the Magistrate having such jurisdiction. (2) When there are more Magistrates than one having such jurisdiction and the Magistrate acting under this section cannot satisfy himself as to the Magistrate to or before whom such person should be sent or bound to appear, the case shall be reported for the orders of the High Court.”
S.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.”
S. 482: Saving the Inherent powers of the High Court—
“Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”
The provisions of Chapter XIII of the Code which deals with the jurisdiction of the criminal courts in inquiries and trials were examined in this case by the judges. Such provisions include s.177, s.178, s.179, s.180, s.181(1), s.183, s.186 and s.187 along with s.188. Hence s.188 has to be construed keeping in mind the provisions laid out in the mentioned sections of CrPC. Chapter XIII of the Code makes it clear that neither the place of business nor place of residence of the petitioner nor for that matter even the complainant is of any relevance. The relevant factor is the place of commission of the offence. By legal fiction, S.188 which deals with the offence committed outside India, makes the place at which the offender may be found, to be a place of commission of offence. S.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 the accused appears. It is not the responsibility of the complainant or the police to find the accused but of the court, hence the place at which the accused is found will not be where the Police have found and arrested him but at the court in which he appears or is made to appear. It is not possible for a victim/complainant to come to India and ascertain the location of the accused/offender before filing a complaint against him in court, in this case, the complainant was a bank based in Dubai so this provision applies to it.
The victim’s convenience is of utmost importance to the court and it cannot be compromised. The convenience of a person who is hiding after committing offence abroad and is fugitive from justice is not relevant.
As the counsel for the respondent has rightly pointed out the matter in question here i.e. the s.188 has been subject matter of interpretation for about 150 years. The question was first considered in the English case of Reg. v. Benito Lopez which deals 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 (there were total 15 judges in the court). The word ‘found’ was given an extensive scope in this case, this was done so that any court where the accused is found at trial or any court which tries the accused will be deemed to have jurisdiction to do the same. Chief Justice Lord Campbell had said in reference to this case that “a man is ‘found’, within the meaning of that Act, in any place where he is actually present.”
The Provision of the Act that has been used here says-‘ 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 jurisdiction to hear and try the case as if such crime or offence had been committed within such limits.’
Another pre-independence case which also interpreted the language of this section is Empress v. Maganlal, 1882. 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. There have been various other cases in the past stating the same. Since finding the accused is the responsibility of the court and not the police, the place where the accused is ‘found’ will be the court where he appears for trial even if the police have arrested him from an area not falling within the jurisdiction of such a court.
The judges had stated that. “In our opinion, the law has been correctly enunciated in the aforesaid case. The scheme underlying S.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 S.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 the execution of warrants, would be the competent Court within the meaning of S.188 of the Code as that Court would find the accused before him when he appears. The finding 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 the victim’s convenience. Between the two, the convenience of the latter has to prevail.”
They also have addressed the concern of the appellant regarding the ‘abuse of power’ by the victim due to such wide provisions being provided to it and have said that there are various other provisions in the Code of Civil Procedure which protect the right of the accused and hence if there is any undue harassment the accused can take recourse through those sections. The interpretation of the High Court regarding s.188 of CrPC was upheld and the Special Leave Petition was dismissed.
Now since s.188 necessarily tells us that if any criminal offence is committed outside the territorial jurisdiction of India, by a citizen of India then the trial and inquiry for that offence will be conducted within the jurisdiction of the Indian courts. So, this means that any court within the jurisdiction of India will have the power to try such an offence, and where the victim will lodge such a complaint is totally at its discretion. This will also apply when a person commits an offence on any ship or aircraft registered in India. The Supreme Court in this case has followed the well-settled law thereby protecting the rights of the victim bank.
The court in this case has rightly interpreted s. 188 of the Code of Criminal Procedure as the convenience of the accused cannot come at the convenience of the victim who has already suffered a loss allegedly in the hands of the accused in a foreign land. It is the duty of any justice system to grant relief to the person who has suffered harm at the hands of another and look into the convenience of the victim which is of utmost importance. Hence, the foreign bank must be given adequate means to have their grievances redressed without having to worry about the jurisdiction of the court where they are presenting the case and having to run from court to court and face any further harassment than they have already faced.
The concern of the defendants regarding abuse of the process and power by the victims is a valid one but there are already various provisions in the Code itself to protect the rights of the accused. This interpretation of the court as per the provisions provided in S. 188 is an exception to the general rights of the accused under sections 50-57 which mentions that the particulars of the arrest have to be communicated to the accused, he must be brought before the magistrate within 24 hours of arrest among other rights which prevents any undue harassment of the accused and also with respect to jurisdiction under S.177 which says ‘Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed, s.178 which deals with cases when the place of commission of the offence is uncertain; s.179 which says “Offence triable where the act is done or consequence ensues”, 180, 181(1) and s.183 which also talks about other situations concerning the jurisdiction of the criminal courts. Hence this case balances out the conveniences and inconveniences of the accused and victim.
 4th semester student at St. Xavier’s University, Kolkata.
 See Indian Penal Code,1860, https://www.indiacode.nic.in/handle/123456789/2263?sam_handle=123456789/1362 .
 The Code of Criminal Procedure, 1973, https://www.indiacode.nic.in/bitstream/123456789/15272/1/the_code_of_criminal_procedure%2C_1973.pdf .
Reg. v. Benito Lopez, 1858 Cr.L.C. 431.
 Empress v. Maganlal, ILR Bom Series (Vol.6) 622.