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 [See, The 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 Case, where 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.