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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.