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. 

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.

Conclusion

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.