Thursday, December 18, 2014

Section 188 Cr.P.C. and Extra-Territorial Jurisdiction - Part I

The laws of any State usually apply with full force within its borders. But in some cases, statutes are found applicable to events that occur even beyond a State's borders. Such extra-territorial extensions of the prescriptive/legislative jurisdiction vested in States is recognised under International Law [see, Cydric Ryngaert, Jurisdiction in International Law pp. 86-133 (Oxford University Press, 2008)]. Take the IPC for example: Section 4 extends its application beyond the territory of India with respect to Indian citizens. Thus, if I (an Indian citizen) kill someone in Singapore, that may be an offence under Section 302, for which I can be prosecuted in India if I am produced before courts here. 

But to which Court must that be? To put it another way, which Court would have jurisdiction to try such an offence? Section 188 of the Cr.P.C 1973 is the corresponding provision in Chapter XIII on Jurisdiction. Thus, "when an offence is committed outside India" by a citizen, "he may be dealt with in respect of such offence as if it had been committed at any place place within India at which he may be found". The erstwhile Cr.P.C. of 1898 also provided for extra-territorial jurisdiction through its Section 188, which also contained the highlighted phrase to decide the issue of jurisdiction. The obvious question which follows is how do we determine the interpretation of the emphasised phrase, at which he may be found

Om Hemrajani and "at which he may be found"
This question was answered in Om Hemrajani v State of Uttar Pradesh [(2005) 1 SCC 617], which continues to hold the field. The facts in Hemrajani were simple. The accused had allegedly obtained loans from a Dubai Bank but absconded to India without discharging his liability. The Bank filed a complaint in Ghaziabad, Uttar Pradesh, where the Magistrate took cognizance of the offence and issued non-bailable warrants against the Accused. A quashing petition was filed, questioning the jurisdiction of the Ghaziabad Magistrate to take cognizance and issue process. This was rejected, and the Petitioner then moved the Supreme Court, which upheld the High Court decision and dismissed the matter. 

To arrive at this conclusion, the Court rejected the stand taken by the Accused that Section 188 must be understood as referring to the place where the offender is "likely to be found". Instead, the Court held that the concerned phrase conferred jurisdiction to any court before which the complainant chooses to file a complaint. It acknowledged and accepted the fact that the decision made it possible "for a complainant to file a complaint against an accused in any Court in the country." The only justification offered for this interpretation, was that it sought to remove any jurisdictional fetters for victims to proceed against fugitive criminals. The victim could approach whichever Court that was most convenient to her.

Criminal Procedure and 'Convenience'
In Hemrajani, jurisdiction could very well have been limited to the place where warrants are served, technically the real place of 'finding' an accused. But the Court chose not do so, because it sought to ensure a victim was not inconvenienced by procedure. It does try to veil this logic of convenience behind its observations about the accused being 'found' by the Court, and therefore jurisdiction would be conferred to whichever court the Accused is brought after service of summons. But, this only begs the question of why should the complaint be filed at a particular court to begin with which precedes the question of issuing warrants. 

Criminal procedure was never about the convenience of either side, yet this is the standard applied by the Division Bench to decide Hemrajani. The most recent approval of this argument came in Dasrath Rupsingh Rathod v State of Maharashtra [subject of the previous post], where Sen J. observed "while the convenience of the Defendant in a civil action may be relevant, the convenience of the so called complainant/victim has little or no role to play in criminal prosecution". In fact, the approach in Dashrath of reducing multiple avenues for jurisdiction as it creates opportunities for abusing the process of law should cause some difficulty for the conclusions in Hemrajani.

Feebly, the Court acknowledged the absurd conclusion reached: nation-wide jurisdiction to prosecute any offence being conferred under Section 188 Cr.P.C. Ten years hence, this unhappy state of affairs is where we still find the law. But perhaps, as I argue, the disdain for multiple jurisdictional forums may foster change.

1 comment:

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