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2008(4) Supreme 308
SUPREME COURT OF INDIA
S.B. Sinha, J.
(From Gujarat High Court)
Fatma Bibi Ahmed Patel — Appellant
versus
State of Gujarat & Anr. — Respondents
Criminal Appeal No. of 2008
(Arising out of SLP (Crl.) No. 6004 of 2006)
Decided on : 13-05-2008
(b) Indian Penal Code, 1860 – Section 4 and section 188, Code of Criminal Procedure, 1973 – The appellant being a citizen of Mauritius and the cause of action being in Kuwait, these provisions will not apply. (Para 5)
AIR 1955 SC 36; AIR 1993 SC 1637 – Relied upon.
(c) Constitution of India,1950– Article 21 – An accused has fundamental right to be proceeded against only in accordance with law – Instantly, the accused being a foreign citizen and the cause of action also being in a foreign country and therefore Indian penal laws and criminal procedures are not applicable – In the circumstances the order taking cognizance must be held to be wholly illegal and without jurisdiction – Only because the application filed on a mistaken legal advise was dismissed, the same by itself, will not come in the way of the appellant to file an appropriate application before the High Court – Principles analogous to res judicata have no application with regard to criminal cases. (Para 5)
AIR 1979 SC 193; (2005) 12 SCC 1 – Relied upon.
Facts of the case :
1. Son of the appellant Hanif Ahmed Patel was married to the complainant - respondent on 22.4.2002. Appellant indisputably is a citizen of Mauritius. Her son and daughter-in-law at all material times were residing at Kuwait.
2. A Complaint Petition, however, was filed before the Chief Judicial Magistrate, Navsari by the said respondent alleging physical and mental torture by her husband (the first accused). Allegations primarily against the appellant therein were that the first accused used to consult her and she used to instigate him.
3. As the couple was residing at Kuwait, indisputably the entire cause of action arose at Kuwait.
4. Nevertheless, the learned Chief Judicial Magistrate, Navsari, however, took cognizance of the aforesaid offences and directed issuance of summons to the appellant by an order dated 30.5.2003.
5. The contention of the appellant that as she was a citizen of Mauritius and as the entire cause of action took place at Kuwait, the order taking cognizance was bad in law. Whereas the learned trial judge rejected the said plea, the Revisional Court on a revision application filed by the appellant thereagainst, allowed the same.
6. Respondent No. 2 moved the High Court of Gujarat which application by reason of the impugned order has been allowed.
Findings of the Court :
The appellant being a foreign citizen and the cause of action also being in a foreign country, provisions of IPC and CrPC will not apply.
Result : Appeal allowed with cost.
JUDGMENT
S.B. Sinha, J. —
1. Leave granted.
2. Interpretation of Section 4 of the Indian Penal Code and Section 188 of the Code of Criminal Procedure fall for our consideration in this appeal which arises out of a judgment and order dated 12.04.2006 passed by the High Court of Gujarat at Ahmedabad in Criminal Revision Application No. 358 of 2005 dismissing the Criminal Revision filed by the appellant herein.
3. Son of the appellant Hanif Ahmed Patel was married to the complainant - respondent on 22.4.2002. Appellant indisputably is a citizen of Mauritius. Her son and daughter-in-law at all material times were residing at Kuwait. A Complaint Petition, however, was filed before the Chief Judicial Magistrate, Navsari by the said respondent alleging physical and mental torture by her husband (the first accused). Allegations primarily against the appellant therein were that the first accused used to consult her and she used to instigate him.
As the couple was residing at Kuwait, indisputably the entire cause of action arose at Kuwait. The learned Chief Judicial Magistrate, Navsari, however, took cognizance of the aforesaid offences and directed issuance of summons to the appellant by an order dated 30.5.2003. An application was filed by her stating that the complaint petition filed without obtaining the requisite sanction under Section 188 of the Code of Criminal Procedure was bad in law. The same was dismissed. A joint application with her son was thereafter filed by the appellant for quashing of the entire complaint petition which was withdrawn. Appellant, however, filed a fresh application on or about 6.12.2004 raising a contention that as she is a citizen of Mauritius and as the entire cause of action took place at Kuwait, the order taking cognizance is bad in law. Whereas the learned trial judge rejected the said plea, the Revisional Court on a revision application filed by the appellant thereagainst, allowed the same.
Respondent No. 2 moved the High Court of Gujarat aggrieved thereby which by reason of the impugned order has been allowed.
4. Mr. Sudarshan Rajan, learned counsel appearing on behalf of the appellant, submitted that having regard to the provisions contained in Section 4 of the Indian Penal Code and Section 188 of the Code of Criminal Procedure, the order taking cognizance as against the appellant was bad in law. Reliance in this behalf has been placed on Central Bank of India Ltd. vs. Ram Narain,1 [AIR 1955 SC 36].
5. Mr. Pawan Kumar Bahl, learned counsel appearing on behalf of the respondent, on the other hand, urged that having regard to the fact that the appellant having filed an application for quashing earlier on the ground of non-compliance of the provisions of Section 188 of the Code of Criminal Procedure as also having filed a quashing application which stood withdrawn, the said application was not maintainable. Offences said to have been committed by the appellant in the complaint petition were under Sections 498A and 506(2) of the Indian Penal Code. Provisions of the Indian Penal Code and the Code of Criminal Procedure would, therefore, indisputably apply. Section 4 of the Indian Penal Code reads as under:-
“4. Extension of Code to extra-territorial offences.- The provisions of this Code apply also to any offence committed by—
(1) any citizen of India in any place without and beyond India;
(2) any person on any ship or aircraft registered in India wherever it may be.
Explanation.—In this section the word “offence” includes every act committed outside India which, if committed in India, would be punishable under this Code.
Illustration
A, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder in any place in India in which he may he found.”
Section 188 of the Code of Criminal Procedure reads as under :
“Section 188 - Offence committed outside India. -When an offence is committed outside India—
(a) by a citizen of India, whether on the high seas or elsewhere;
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