2004 Supreme(SC) 1475

2004(8) Supreme 373
SUPREME COURT OF INDIA
(From Allahabad High Court)
Y.K. Sabharwal & D.M. Dharmadhikari, JJ.
Om Hemrajani -Petitioner
versus
State of U.P. & Anr. -Respondents
Special Leave Petition (Crl.) No. 99 of 2004
Decided on 25-11-2004
Counsel for the Parties :
For the Petitioner : Vijay Kotwal, Sr. Advocate, S.B. Keswani, Sushil Karanjkar, Venkateswara Rao Anumolu, Advocates.
For the Respondent No. 2 : Vinod A. Bobde, Sr. Advocate, S. Mudaliar, Arujun Bobde, Hrishikesh Baruah, S. Misra, Advocates.
For the State of U.P. : Prashant Chaudhary and Praveen Swarup, Advocates.

IMPORTANT POINT
When offence is committed by an Indian Citizen outside India, Court where complaint may be filed and accused either appears voluntarily pursuant to issue of process or is brought before it in execution of warrants would be the Competent Court u/s 188 Cr.P.C. as that Court would find accused before him when he appears.

Headnote:Criminal Procedure Code, 1973-Section 188-Offence committed outside India by Indian Citizen-Jurisdiction of Court in India to try such accused for offence-Expression "at any place within India at which he may be found"-Finding of accused has to be by the Court where accused appears and finding of accused cannot be by complainant or police-Appellant-accused was alleged to have committed offences u/s 415, 417, 418 and 420 r/w 120B IPC in respect of a bank loan in United Arab Emirate-Complaint for offences filed by Bank in Court of Magistrate in Ghaziabad and Court took cognizance-Whether Court lacked territorial jurisdiction in view of plea of accused that he was not residing within jurisdiction of Court? No.

       Held : 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. (Para 10)

       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 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. (Paras 16 and 17)