Wednesday, January 21, 2015

Complaints, Chargesheets, and Taking Cognizance

Section 190(1) of the Cr.P.C. 1973 outlines three ways in which a Magistrate may take cognizance of offences: (a) on the basis of a Complaint of facts disclosing an offence, (b) on the basis of a Police Report of such facts, and (c) on information from any other person or his own knowledge, that such an offence has been committed. In some cases however, a Special Act may restrict the manner in which cognizance of offences may be taken by the Magistrate. Consider, for instance, Section 13(3) of the Official Secrets Act, 1923 says: no court shall take cognizance of any offence under this Act except upon complaint made by order of, or under authority from, the appropriate government or some officer duly empowered by the appropriate government in this behalf [emphasis supplied].

While these provisions were anomalous earlier, today with a host of special criminal statutes we find such provisions quite common. It is, therefore, not only interesting but also important to discuss some problems surrounding this area. 

How to Treat Special Complaints 
Ordinarily, one imagines the Complaint as being filed by a private person, who does not have the abundant investigative resources of the State to support him. The Police Report, on the other hand, is the product of these resources at the State's disposal. So where a statute requires an authorised officer to file a complaint, we cannot be blamed for thinking that this is more akin to a Police Report than a Complaint. But these are technical terms: 'Complaint' and 'Police Report' are defined under Section 2(d) and 2(r) of the Code respectively. Therefore the canons of statutory interpretation demand that we interpret the text literally rather than second-guess the meaning behind the text.

How we treat Special Complaints of the kind mentioned in Section 13(3) of the Official Secrets Act is not a mere academic inquiry. There are several consequences unique to cases instituted upon a Complaint and Police Report. For instance:

  • Filing of a Police Report under Section 173, Cr.P.C. allows for further investigation under Section 173(8), which is not present for Complaints. Nor can there be supplementary charge-sheets.
  • Only in cases instituted upon a Police Report does an Accused have the judicially protected right to supply of documents under Section 207, Cr.P.C.
  • The procedure for trial in Warrant Cases instituted upon a Police Report differs from those instituted upon a Complaint.
  • The Maharashtra Control of Organised Crimes Act 1999 [MCOCA] punishes 'continuing unlawful activity' which is defined as any activity prohibited by law in respect of which one or more charge-sheets have been filed.
Therefore, the treatment of Special Complaints as falling within the definition of a 'Complaint' or 'Police Report' has potentially significant consequences. Beyond the issues highlighted above, another issue involves taking cognizance. What provision would be invoked while taking cognizance of Special Complaints: Section 190(1)(a) or (b)? Or would Section 190 be invoked at all? 

Judicial Interpretation
The judiciary's treatment of these issues makes my academic excitement feel like dead rubber. With due regard to the canon of literal interpretation, courts have held that a Special Complaint is exactly that, a Complaint. Lets revisit the issues highlighted above before we move to cognizance.
  • In S. Nagrajan v. State [Crl. Rev. Petition No. 321/2004, decided on 15.03.2013] the Delhi High Court held that no further investigation akin to Section 173(8) was possible for a Special Complaint under the erstwhile Prevention of Food Adulteration Act, 1954. 
  • Similarly, in Ajit Narain Haksar v. State of Karnataka [ILR 2002 Kar 2175], the Karnataka High Court held there could be no supplementary complaints under the Central Excise & Salt Act 1944 akin to supplementary charge-sheets. [Importantly though, the Jharkhand High Court arrived at the opposite conclusion for the Prevention of Money Laundering Act. See, Narendra Mohan Singh v. Directorate of Encforcement, Crl. M.P. No. 2863/13, decided on 22.03.2014]. 
  • In State of Maharashtra v. Ajay Jagdish Pande [Crl. Appeal No. 722/12, decided on 25.0.2014], the Bombay High Court held that a Special Complaint for offences under the Environment Protection Act 1988 could not be a 'Charge-sheet' for the definition of 'continuing unlawful activity' under the MCOCA.
Problems with cognizance came in a rather more direct fashion. Courts were provided with a Police Report where the statute specifically provided for cognizance to be taken on a Complaint by an authorised officer. Two problems emerged: (a) would such taking of cognizance be illegal, and (b) would it vitiate proceedings. 

Unsurprisingly, the Delhi High Court in Aniruddha Bahal v. CBI [210 (2014) DLT 292], relying upon the decision of the Supreme Court in Jeewan Kumar Raut v. CBI [AIR 2009 SC 2763], held that cognizance of offences on a Police Report is illegal where the statute expressly mandated it to be on a complaint. The Court was specifically concerned with offences under the Official Secrets Act. Interestingly though, the Court seems to go further and answer point (b) in the affirmative. 

Is this proper? Sections 460 and 461 of the Cr.P.C. detail circumstances which are irregularities and illegalities. Erroneous taking of cognizance under Section 190 is covered by Section 460 clause (d), thus preventing proceedings from being set aside merely on this ground. However, cognizance is not being taken under Section 190 for any of those Special Complaints. It is being taken under the particular provisions of the concerned special statute, and that procedure should override the general procedure in accordance with Section 4(2) of the Cr.P.C.

In 1967, the Law Commission of India in its 37th Report on the Code of Criminal Procedure 1898 [the official cover page has a typo] observed there was confusion regarding the definition of complaints and taking cognizance. It suggested an amendments may be made to Section 190(1)(b) of the Old Code to "cover specifically reports under other sections of the Code or under other laws". Section 190(1)(b) of the Old Code is identical to the current Section, which means the Commission considered including reports under other laws closer to a Police Report than a Complaint. 

A concrete suggestion for an amendment never emerged as the project was abandoned, but this gives some insight into the confusion prevailing in the area. Forty years later we see the Supreme Court come to the opposite conclusion in Jeewan Kumar Raut. Though most decisions indicate the term Complaint' must exclude a 'Police Report', contrary voices do exist and may yet lead to another intervention by the Apex Court. However, what may prove more important is the consequence of a finding that cognizance was illegally taken. The decision in Aniruddha Bahal does not discuss the aspect of Section 460, which leaves it open for the law to head in a different course. Expect more clarity over the course of this year, as that decision gets exposed across different settings.

Sunday, January 11, 2015

Of Entrapment and Agent Provocateurs - Part II

In the previous post, we discussed India's treatment of an Agent Provocateur: "one who entices another to commit an express breach of law which he would not have otherwise committed and then proceeds or informs against him in respect of such offence". Here, I consider the position of the person tempted, enticed and induced into committing the offence. Few would refuse to admit that a person who ordinarily harboured an intention to commit an offence, is placed differently from one who is egged on to commit the offence. The devil, as they say, lies in the detail. It is here that the fact of public versus private agents can matter: for some, the situation be more opprobrium-worthy if the Police were behind such manufacturing of crime, as opposed to some journalist. As we will see, it is a detail which matters.

The Tempted
Two broad questions are raised in respect of our Eve, (i) how does the law treat the fact of Entrapment when considering guilt or innocence, and (ii) how should the law treat this fact. [Caveat: unlike most posts, this does not solely consider the Indian position, for there is a near-absolute dearth of discussion on the point. English and American experiences are drawn from, and those interested in reading further may also consider Canada's treatment of the point.]

Entrapment: How it is Today 
In India, Chapter IV of the IPC contains 'General Defences'. Entrapment is not one of them, nor is it recognised as a defence in any special statutes on criminal law. The situation is England is similar, where no Entrapment defence is recognised statutorily, or at the common law. Both countries do, however, have procedural laws that prevent any abuse of process [Section 482, Cr.P.C. 1973; Section 78, Police and Criminal Evidence (PACE) Act 1984]. While we haven't yet courts label such police action as an abuse of process in India, we did see in the previous post that such police practices are deprecated. In England a stay of proceedings has been granted on grounds of Entrapment by the police in R v. Loosely [2001 UKHL 53].

The USA though, does recognise a defence of entrapment where Law Enforcement agents act as Agent Provocateurs, but not private entrapment. The Supreme Court of the United States [SCOTUS] in Casey v. United States [276 U.S. 413 (1928)] declined to discuss the point, but it placed itself squarely for consideration in Sorrells v. United States [287 U.S. 435 (1932)]. The Court unanimously affirmed the defence, but schisms appeared concerning its understanding. The Court [in an opinion by Hughes J.] believed the Defendant's 'predisposition' to commit the offence was relevant to determine if any entrapment occurred. Merely affording an opportunity for committing the offence is insufficient; the seeds must be planted by the Police. In a separate opinion, Roberts J. believed the focus ought not to be on this predisposition, but rather on the role played by the Police allowing for a more objective analysis. Jacobson v. United States [503 U.S. 542 (1992)] was the first time since Sorrells that the Court did not raise the debate [previously raised in Sherman v. United States, 356 U.S. 369 (1958); United States v. Russell, 411 U.S. 423 (1973)], suggesting the point has become moot.  

Entrapment: How should it be?
This question has varied treatment across jurisdictions: while the USA has debates over the nature and scope of the existing defence, the UK can yet consider a wider set of ideas given the current absence of any defence. 

Not everyone has been satisfied with the rather subjective nature of enquiries in the USA: the line of thought fronted by Roberts J. has found some academic support. The bigger debate today though is on 'Private Entrapment': operations by journalists and other private persons to expose truths [see, Gideon Yaffe "'The Government Beguiled Me': The Entrapment Defense and the Problem of Private Entrapment", 1(1) Journal of Ethics & Social Philosophy (2005); Richard McAdams "The Political Economy of Entrapment" 96(1) Journal of Criminal Law & Criminology 107 (2005)]. State participation in the operation has been central in SCOTUS applying the defence, although one may argue that the subjective test in fact allows an extension to private operations as well by focusing on the tempted and not the tempter. 

Since Loosely (2001), the UK can be seen as recognising some protection in cases of entrapment. Writing prior to this remains important to consider what other approaches may be followed through Section 78 of PACE which allows a variety of remedies through the 'abuse of process clause' [see, Andrew Choo "A Defence of Entrapment", 53(4) Modern Law Review 453 (1990)]. The focus in Section 78 is on the conduct of the police or prosecuting authority, which makes its extension to Private Entrapment difficult. Thus, while the private nature of entrapment did not prevent a stay in R v. Hardwicke [(2001) Crim L.R. 220], it became the reason to refuse reliefs under Section 78 in R v. Shannon [(2001) 1 WLR 51].

India and Entrapment
Since India has a clean slate to work on, the law potentially can develop in several directions. We already have one protection to persons who have been entrapped: evidence of the Agent Provocateur must be corroborated for it to be relied upon. What about an Entrapment defence? Traditional defences are premised upon either excusing certain acts from liability [say, insanity], or justifying acts to not impose any liability on the actor [say, self-defence]. Entrapment, as academics note, cannot be placed in either bracket without problems. What's more, I think that a defence in the conventional form would fail to adequately address the problem society faces when dealing with entrapment. In case of the Police entrapping individuals, it is an abuse of process. The law is supposed to preventing crime, not manufacturing it [see, Rumpole and the Alternative Society (1978)]. 

Private Entrapment is again an abuse of process but for different reasons. It questions the basic notions of privacy we are accustomed to in a liberal society, and constitutional encouragement by Indian courts is a cause for concern no matter what the case may be. Persisting with such encouragement of lies and deception only fosters easy reliance on these means, as opposed to conducting a thorough inquiry. Thankfully, the Supreme Court in Rajat Prasad [see previous post] recognised this and asks for a completely remote person to conduct the operation. The fear of attendant liability should deter those with an ax to grind, but only time will tell how effective it is.

I would like to acknowledge Ms. Deekshitha Ganesan [IV Year, B.A.LL.B. (Hons.)] for her help with these posts.

Friday, January 9, 2015

Of Entrapment and Agent Provocateurs - Part I

Few things capture the public's imagination like a Sting Operation. X goes undercover and acquires the target's confidence, after which the target is induced to commit illegal acts or confess to the occurrence of alleged improprieties. If X is a police officer, then an arrest usually follows. If X is a journalist, then the footage is broadcast through news items labelled The Truth [about so and so]. A fiery debate rages on TV about the veracity of these claims and the propriety of such inducements. The society's moral dilemmas in accepting such sting operations is reflected in the criminal law as well, where for several years jurisdictions have debated how Eve and the Snake should be treated for biting the forbidden fruit [a reference used by the House of Lords in R v. Sang, [1980] AC 402]. The Indian experience is discussed here

The Snake
Our temptress, the Biblical Snake, is evocatively labelled an Agent Provocateur in the criminal law [so evocative, that perhaps for the first time the law shares names with lingerie]. I won't press the Biblical reference for long though, as the Madras High Court painstakingly illustrated in Re Ambujam Ammal [AIR 1954 Mad 326] that these agents of deception were well-embraced by historical texts in India. For removal of doubts, I make it clear that my idea of an Agent Provocateur is as defined by the Royal Commission on Police Powers & Procedure (1929): "one who entices another to commit an express breach of law which he would not have otherwise committed and then proceeds or informs against him in respect of such offence."

Important questions emerge. Should these persons be tried for abetting an offence, or lauded for their covert investigation? Should the evidence be regarded circumspect, or enough to secure convictions? Does the identity of the person - private or state agent - matter?
In that order, we proceed.

Finding Crime or Abetting its Creation?
The judicial treatment of this issue depicts a curious state of affairs. In 1917, Aiyar J. of the Madras High Court in Re Lakshminarayana Aiyar [42 Ind Cas 989] unequivocally held that an Agent Provocateur could be guilty of abetment, while laudable motives may prompt the State to withdraw the case. Nearly a century later the Delhi High Court faced a similar issue in Aniruddha Bahal v. State [2010 172 DLT 269], where those who offered bribes to ministers to catch them in the act were chargesheeted. The Single Judge regarded exposing corruption as part of Fundamental duties under the Constitution. More importantly, he held that "in order to expose corruption at higher level and to show to what extent the State managers are corrupt, acting as agent provocateurs does not amount to committing a crime". 

But in 2014, the Supreme Court appeared to have reversed this dictum in Rajat Prasad v. CBI [(2014) 6 SCC 495]. The case was nearly identical to Aniruddha Bahal: a minister was caught on tape accepting bribes by journalists who were then accused as abettors [nearly, for in Aniruddha Bahal the journalists were accused as principals with no complaint against the ministers]. The Court held that whether journalists could be liable was a question for trial, and no blanket rule could be imposed in such cases. However, the Court said that "a journalist, or any other citizen who has no connection, even remotely, with the favour that is allegedly sought in exchange for the bribe offered, cannot be imputed with the necessary intent to commit the offence of abetment". It remains to be seen in what circumstances would this test of 'no remote connection' will be satisfied.

Questionable Accomplice or Star Witness? 
Less confusion prevails here. The testimony of an Agent Provocateur is admissible and can be relied upon, but Courts have differed in their treatment of such evidence. Nor would such persons be considered accomplices and thus their testimony is not affected by the presumption against such evidence under Section 114 of the Evidence Act 1872. But the Supreme Court in Major E.G. Barsay v. State of Bombay [AIR 1961 SC 1762] held that such witnesses were nevertheless interested and thus their testimony requires corroboration. Like any other question of evidence, treatment of such evidence also remains highly contingent on the facts and circumstances of the case.

Public or Private Agents
The Supreme Court in Rajat Prasad observed that operations akin to sting operations by state agents were "yet to be experimented and tested in India legal acceptance thereof by our legal system is yet to be answered". This, I'm afraid, is blatantly incorrect. The Police have engaged in these measures for the longest time, and Courts have been unequivocal in expressing their disapproval of such practices. In 1954, the Supreme Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [AIR 1954 SC 322] condemned the police for supplying bribe money and a magistrate for participating as a witness for a trap. Subsequently, in 1956 the same Court decided Ramnajam Singh v. State of Bihar [AIR 1956 SC 643] and its observations warrant reproduction in full: 

"However regrettable the necessity of employing agents provocateurs may be (and we realise to the full that this is unfortunately often inevitable if corruption is to be detected and bribery stamped out), it is one thing to tempt a suspected offender to overt action when he is doing all he can to commit a crime and has every intention of carrying through his nefarious purpose from start to finish, and quite another to egg him on to do that which it has been finally and firmly decided shall not be done.

The very best of men have moments of weakness and temptation, and even the worst, times when they repent of an evil thought and are given an inner strength to set Satan behind them; and if they do, whether it is because of caution, or because of their better instincts, or because some other has shown them either the futility or the wickedness of wrongdoing, it behoves society and the State to protect them and help them in their good resolve : not to place further temptation in their way and start afresh a train of criminal thought which had been finally set aside."

This issue of the Agent Provocateur being a State agent also bears importance for the next post, where we discuss the position of Eve, the tempted.

Saturday, January 3, 2015

Interception and Hot Pursuit of a 'Terror' Boat

In the previous post, I discussed extra-territorial jurisdiction of law enforcement. International Law, ever since the decision in Lotus, restricts law enforcement by states to within their territories. A rather unpleasant situation would arise if states could send their agents to enforce their laws on foreign soil. Imagine the Delhi Police arresting Indian citizens in Colorado for engaging in homosexual activity [which would be an offence under the IPC]. This eventuality, thankfully, is prevented through this basic rule. But, like every other rule this also carries exceptions. A most notable exception to this rule is found in context of the Law of the Sea, evocatively labelled 'Hot Pursuit'. Contrary to what you may think, this is not always about a high-speed chase after cold-blooded criminals. In fact, most pursuits are over foreign ships violating fishing laws! 

But, two days ago the Indian media was covering a story of an alleged exercise of Hot Pursuit by the Indian Coast Guard of a vessel bearing a Pakistani Flag, which culminated with the suspect vessel sinking after explosions occurred on board probably killing the crew [see here, here and here]. The media has with near-uniformity accepted the theory of this vessel being engaged in terrorist activity, with the explosion being triggered by terrorists who sought to avoid capture. The veracity of these claims may never be proven, and therefore doesn't fit the 'Proof of Guilt' theme of the blog. What I am interested in is the interception and pursuit, which led to this alleged act of self-immolation. 

Crucial Facts
The alleged hot pursuit began nearly 365 KM South-West off the coast of Porbandar, when the suspected vessel refused to stop after being intercepted by the Coast Guard vessel Rajratan. It continued for nearly an hour with the suspected vessel moving further away from the Indian coast. The suspected vessel stopped after warning shots were fired from the Rajratan and the crew was allegedly seen to move below the deck. Soon after, there were explosions and the vessel caught fire. Due to bad weather conditions, rescue operations could not be conducted, but searches are currently ongoing.

Interception and Hot Pursuit of Vessels under International Law
Ships are considered exclusively subject to the enforcement jurisdiction of whichever state's Flag they fly: much like territory itself. So the interception of foreign ships at sea is an exceptional situation, which is determined by the Law of the Sea Convention 1982 [LOSC]. Interception and subsequent pursuit of ships is a rather technical subject, which requires a brief introduction on jurisdiction in the Law of the Sea. Every Coastal State today has a 12 nautical mile Territorial Sea [Article 3, LOSC]. This is considered an extension of territory itself, and a State has near-complete jurisdiction over affairs here [Articles 17-32, LOSC]. States may claim a Contiguous Zone [Article 33, LOSC], which continues for a further 12 nautical miles after the Territorial Sea. This confers limited jurisdiction relating to 'fiscal, customs, immigration, and sanitation' matters. Lastly, States may claim an Exclusive Economic Zone, that can extend to 200 nautical miles from the coast [Article  55, LOSC]. Jurisdiction within the EEZ is further restricted to enforcement of fisheries and similar resource-exploitation based legislation [Article 56, LOSC]. Beyond this, States have universal jurisdiction to deal with certain situations, such as piracy [Article 100, LOSC].

Suppose a foreign ship violates Indian criminal laws within our Territorial Sea. The Coast Guard intercepts but it flees, with the Coast Guard hot on its tail. Must the chase end before the 12 n.m. boundary, as criminal laws are not enforceable beyond? International Law has thankfully avoided conferring such impunity upon offenders through the right of Hot Pursuit, which permits the chase to continue out to the High Seas. In order to avoid its, States agreed upon inserting several conditions while recognising this right in both Article 23 of the Geneva Convention on the High Seas 1958 and Article 111 of the LOSC. Perhaps the most important of these is the restriction on what violations can give rise to Hot Pursuit from the specific jurisdictional zones. Any municipal law violations within the Territorial Sea can sustain Hot Pursuit. But to begin a Hot Pursuit from the Contiguous Zone or EEZ, the initial violation must be of laws that are enforceable there. So, a pursuit cannot begin in the EEZ for a violation of the State's criminal laws, as the corresponding enforcement jurisdiction is lacking. 

Triumphant, but Possibly Illegal?
Most comments in the aftermath of the operation are of triumph at having foiled a potential terror attack. Few, however, commented on the possibly illegal interception and Hot Pursuit that led to this. I have to admit, the information currently available leaves no doubt that the interception as well subsequent Hot Pursuit were not legal. 

What illegality am I referring to? The alleged interception occurred nearly 365 KM, or nearly 197 nautical miles from India's coast. This means the ships were in the EEZ, where the only bases for the Coast Guard to stop a foreign vessel is either violation of India's fishery laws, or suspicion that the Ship was a Pirate Ship. The suspected ship was confirmed as a Pakistani vessel in the Official Press Release, taking away any possible arguments of Piracy and a resulting universal jurisdiction. There are other bases relating to terrorism that the SUA Protocol of 2005 confers upon States, but India is not yet a Party. Therefore, legally, we had no basis to stop that ship in the first place. 

This brings me to the Hot Pursuit. Article 111 LOSC lays down several conditions, and the Law of the Sea Tribunal expressly clarified in the M.V. Saiga Case (No. 2) Judgment of 1999 that all of these must be cumulatively satisfied for Hot Pursuit to be legal [paragraph 146]. It appears that a most fundamental condition was not complied with, that of conducting a pursuit from the EEZ for violation of EEZ-specific laws. The Saiga Case had a similar pursuit from the EEZ, where Guinean authorities pursued and arrested the Saiga for evading customs laws. The Tribunal held such enforcement was without any lawful basis, as EEZ jurisdiction was limited under the Convention. 

Does it Matter?
India seems to have acted out of bounds, and the apparent illegality of the episode cannot be brushed aside by linking the suspected ship to terror operations. Instructive here is an incident involving the vessel So San, back in 2002. The ship left North Korea and was suspected by the United States as carrying Scud Missiles. The U.S. Navy intercepted the So San, but it refused to stop and a pursuit followed. Shots were fired and only after the So San was damaged did it stop. the Scud Missiles were there, hidden beneath the reported cargo. What happened next? After Yemen claimed ownership of the missiles, the United States let the So San go. It acknowledged that there was no basis under International Law to prevent the ship was proceeding to Yemen. In fact, it only intercepted the ship because it had no flag [read the New York Times report here]. 

This incident was slightly a year after the 9/11 attacks, but the U.S. respected the limits of International Law (something that certainly decreased with time). The interception and hot pursuit strike a harsh note not only for India-Pakistan relations, but also potentially harm the freedom of navigation enjoyed by ships of both States in an already troubled area

Thursday, January 1, 2015

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

In the previous post Section 188 Cr.P.C. was discussed, focusing on one question: which Court within India would have jurisdiction under the Section. This, we saw, was determined by the phrase "at which he may be found". But, there is a prior question which is usually ignored today: the impact of how the Accused was brought to a particular court. If X was improperly arrested abroad and brought to India to face trial, would this illegal arrest affect the jurisdiction of a court over X?

Enforcement Jurisdiction and Territoriality
It is common for statutes to have clauses that extend their reach beyond a state's borders [eg: Section 4 of the IPC], but their extra-territorial enforcement is a separate matter altogether. 'Enforcement Jurisdiction' is strictly wound with territoriality. Under customary international law, a State cannot enforce its laws/rules or any other aspect of its sovereignty beyond its territory [SeeThe Case of the S.S. “Lotus”, Series A No. 27 (7 September, 1927) (Permanent Court of International Justice); Ian Brownlie, Principles of Public International Law, p. 309-10 (7th edn., 2008); Cydric Ryngaert Jurisdiction in International Law, p. 23-25 (2008)].

India has not dissented from this position, as can be gleaned from both statute and case law. Section 60 Cr.P.C. extends the power of the Police to arrest to "any place in India", but not beyond. Recently, the Supreme Court confirmed the territorial limitations on enforcement in Republic of Italy v Union of India [Italian Marines Case]. The procedure to secure presence of offenders abroad is largely governed by bilateral treaties in the nature of Mutual Legal Assistance Treaty [MLAT] between nations [a list of India's MLATs is available here]. 

Illegal Arrests and Jurisdiction: Two Views
That said, history is littered with incidents of persons being illegally arrested/abducted on foreign soil by state-agents to face trial for offences. Municipal courts across several states have considered the potential effect illegal arrests/abductions should have on the subsequent jurisdiction of courts to try individuals, and it is fair to say that two views seem to emerge: the classical and contemporary.  

The classical view favours retaining jurisdiction ignoring the circumstances of arrest, applying the Latin maxim Male Captus Bene Detentus. An illegal arrest, it is argued, is a procedural defect and the guilty person cannot be allowed to flee taking advantage of such a minor point. This was famously applied in the Eichmann Casewhere the Israeli Supreme Court refused to consider Adolf Eichmann's alleged abduction from Argentina in determining whether he could be prosecuted. More recently, the Supreme Court of the United States in United States v. Alvarez-Machain (1992) upheld that country's long-held view that circumstances of arrest are immaterial to decide subsequent jurisdiction to prosecute.  

The more contemporary view rejects blithely ignoring the circumstances of arrest when determining the jurisdiction to try an accused. An illegal abduction from foreign soil is an important factor to decide whether or not an accused should face trial. The best exponent of the modern view is perhaps the House of Lords decision in Ex Parte Bennett (1993), wherein other instances are also cited. This view does not claim that a blanket prohibition should be in place completely barring a trial following illegal arrest. Rather, the circumstances of arrest and detention are considered relevant to decide whether the trial would result in an abuse of process.

The Indian Position: A Need for Review? 
India adopts the classical view, with the Bombay High Court decision in Emperor v Vinayak Damodar Savarkar being relied upon since 1910 without exception. There, it was contended that Savarkar had been illegally arrested in Marseilles by British authorities, and this illegality precluded the Court from exercising any further jurisdiction over him. The Court assumed the arrest was illegal, only to flatly reject the contention stating that "where a man is in the country and is charged before a Magistrate with an offence under the Indian Penal Code, it will not avail to him to say that he was brought there illegally from a foreign country.

That this is considered a non-issue today was evinced from the Supreme Court decision in Om Hemrajani (2004) where the Court casually mentions: "How the accused gets there [to court] is immaterial. It does not matter whether he comes voluntarily or in answer to summons or under illegal arrest." But is this acceptable today? No. The settled position of the classical view which India adopts is a thing of the past. Admittedly, it cannot be said that International Law clearly warrants that States renege jurisdiction following illegal arrests. But the fact that the international community disapproves of illegal abductions to bring offenders to justice today was witnessed by widespread condemnation of the decision in Alvarez-Machain itself. 

The Bennett approach of considering circumstances of arrest as relevant in determining whether exercising jurisdiction amounts to an 'abuse of process' fits neatly with the inquiry a High Court must conduct in applications under Section 482 Cr.P.C. Currently, arrests in contravention of statutory restrictions are considered illegal and can render proceedings quashed [Emperor v Chandri Bawoo,1924]. There is no reason why the same principle should not be extended to cases where arrests are effected abroad, representing a more fundamental illegality of action.