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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.R. GAVAI, K.R. SHRIRAM, B.P. COLABAWALLA, JJ.
Prabodh K. Mehta - Appellant
Versus
Charuben K. Mehta - Respondent
First Appeal No. 922, 923 of 2013 in Charity Application No. 10, 13 of 2013
Decided On : 01-03-2018
Conviction - Indian - Foreign Court - Huntington v. Attrill 1893 House of Lords 150, Banco De Vizcaya v. Don Alphonso De Borbon [1935] K.B. 140, United States of America v. Inkley 1989 1 Q.B. 255, Raulin v. Fischer 2 Kings Bench 1911 page 93 - Crimes are local and only cognizable and punishable in the country where they were committed. Courts of no country execute penal laws of another. Judgment of foreign Court can be taken notice of in another country for any purpose whatsoever. Judgment and order of conviction by foreign Court for offence committed in that country may or may not be binding on the Courts in India, but can be recognized while exercising judicial and quasi judicial powers by the Courts and authorities in India. Indian Courts are not bound to follow the rules of private international law as laid down by English Courts. Indian Courts are free to evolve their own rules of private international law and follow the same. Judgment and order of conviction of a foreign Court for the offence committed in India can be noticed/looked into and recognized by judicial and quasi judicial authorities in India, while exercising their judicial and quasi judicial powers, but cannot be said to be ipso facto binding on such Courts and authorities. Effect of such order of conviction depends upon variety of factors such as nature of the proceedings, purpose for which the said order of conviction needs to be taken into consideration, nature of conviction and effect thereof on the proceedings, nature of consequences of the ultimate decision to be taken in the said proceedings. No hard and fast rule can be laid for that purpose. Courts and authorities will have to take a call on the facts and circumstances of each case and take a decision as to what is the effect of such judgment and order of conviction.
Fact of the Case:
The matter was placed before the court to answer the question of whether conviction of an Indian by a foreign Court for an offence committed in that country can be taken notice of by the Courts or authorities in India and whether such conviction would be binding on Courts and authorities in India while exercising judicial and quasi judicial powers. The court reframed the question into two parts: (1)(a) Whether conviction of an Indian by a foreign Court for the offence committed in that country can be taken notice of by the Courts or authorities in India while exercising their judicial and/or quasi judicial powers? and (1)(b) Whether such a conviction would be binding on the Courts and authorities in India while exercising their judicial and/or quasi judicial powers?
Finding of the Court:
The judgment and order of conviction of a foreign Court for the offence committed in India can be noticed/looked into and recognized by judicial and quasi judicial authorities in India, while exercising their judicial and quasi judicial powers, but cannot be said to be ipso facto binding on such Courts and authorities. The effect of such order of conviction depends upon a variety of factors and no hard and fast rule can be laid for that purpose. Courts and authorities will have to take a call on the facts and circumstances of each case and take a decision as to what is the effect of such judgment and order of conviction.
Issues: The main issue was whether the judgment and order of conviction of a foreign Court for the offence committed in India can be taken notice of by the Courts or authorities in India and whether such conviction would be binding on Courts and authorities in India while exercising their judicial and quasi judicial powers.
Ratio Decidendi: The judgment and order of conviction of a foreign Court for the offence committed in India can be noticed/looked into and recognized by judicial and quasi judicial authorities in India, while exercising their judicial and quasi judicial powers, but cannot be said to be ipso facto binding on such Courts and authorities. The effect of such order of conviction depends upon a variety of factors and no hard and fast rule can be laid for that purpose. Courts and authorities will have to take a call on the facts and circumstances of each case and take a decision as to what is the effect of such judgment and order of conviction.
Final Decision: The court answered the first question in the affirmative, stating that the judgment and order of conviction of a foreign Court for the offence committed in India can be noticed/looked into and recognized by judicial and quasi judicial authorities in India, while exercising their judicial and quasi judicial powers, but cannot be said to be ipso facto binding on such Courts and authorities. The court also considered the second question and concluded that the effect of such order of conviction depends upon a variety of factors and no hard and fast rule can be laid for that purpose. Courts and authorities will have to take a call on the facts and circumstances of each case and take a decision as to what is the effect of such judgment and order of conviction.
B.R. GAVAI, J.
1. This matter is placed before us as per the orders passed by the Hon'ble the Chief Justice for answering the following question:-
"Whether conviction of an Indian by a foreign Court for the offence committed in that country can be taken notice of by the Courts or authorities in India and such conviction would be binding on Courts and authority in India while trying such person for such offence in India?
2. When the matter was listed before us on 21/02/2018, with the consent of the parties, the question which is referred to us has been re-framed as thus:
(1) Whether conviction of an Indian by a foreign Court for the offence committed in that country can be taken notice of by the Courts or authorities in India and as to whether such conviction would be binding on Courts and authorities in India while exercising judicial and quasi judicial powers?
3. Since we are called upon to only answer the question, reference to the factual matrix would not be necessary.
4. We have heard Shri Dada, learned Senior Counsel appearing on behalf of the Appellant in the First Appeal and Shri Ponda, learned Counsel appearing on behalf of the Respondent. Though lengthy and elaborate arguments have been advanced by both Shri Dada and Shri Ponda, we will only deal with such of the arguments that are necessary for answering the reference.
5. Shri Dada submitted that, the judgment and order of conviction by a foreign court for the offence committed in that country cannot even be looked into or no notice be taken of by the Indian Courts. Learned Senior Counsel submitted that, the view taken by the erstwhile Nagpur High Court in the case of Govind Kesheo Powar v. State of Madhya Pradesh and others, 1955 Cri. L.J. 1275 : AIR 1955 Nag 236, lays down the correct position of law. He submitted that, the view taken by the Nagpur High Court is in tune with the view taken by the House of Lords in Huntington v. Attrill 1893 House of Lords 150, Kings Bench Division in Banco De Vizcaya v. Don Alphonso De Borbon [1935] K.B. 140, Queens Bench in United States of America v. Inkley 1989 1 Q.B. 255, Kings Bench in Raulin v. Fischer 2 Kings Bench 1911 page 93, Chancery Division in Frankfurther v. W.L. Exner Limited 1947 1 Chancery Division 629, Ogden v. Folliott 3 TR 725, Wolff v. Oxholm 6 M & S 91 and Lynch v. The Provisional Government of Paraguay. The learned Senior Counsel also relied on the Judgment of Division Bench of the Calcutta High Court in Union of India and others v. Susanta Kumar Mukharjee, 1977 II L.L.J. 460. The learned Senior Counsel further submits that, it has been consistently held that the Court of one country would not directly or indirectly execute decree of the Court of another country and if the Court of one country is permitted to take note of decree of the Court of another country, it will amount to nothing else but indirect enforcement of decree of the foreign Court.
6. Per contra, Shri Ponda, the learned Counsel appearing on behalf of the Respondent, submits that, though judgment and order of conviction passed by the foreign Court may not be binding on the Courts in India, the same, however, could be noticed and recognized while exercising judicial or quasi judicial powers by the Courts and authorities as the case may be in India. The learned Counsel submits that, enforcement of a judgment of foreign court is distinct from recognizing or noticing the said judgment by the Courts and authorities in India. In this respect, the learned Counsel relied on the judgment of the Apex Court in Brace Transport Corporation of Monrovia, Bermuda v. Orient Middle East Lines Ltd., Saudi Arabia and others, 1995 SUPP (2) SC,. 280. The learned Counsel also relies on the judgment of King's Bench in Ralli Brothers v. Compania Naviera Sota Y Aznar 1920 (2) K.B. 287, of the Court of Appeal in the case of Regazzoni v. K.C. Sethia 1954(3) W.L.R. 79, of the Chancery Division in the case of Emery v. Emery 1959 Chancery Division 410, of the House of Lord
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