JURISDICTION OF COURTS IN

OFFENCES COMMITTED
OUTSIDE INDIA

PRASHANT YADAV
prashant@nsypat.com

nSypat Legal Services

Allahabad | Lucknow
 CONTENTS

1. INTRODUCTION 5

i. Ajay Aggarwal v. Union of India, AIR 1993 SC 1637 5

2. SECTION 188 OF CRPC. OFFENCE COMMITTED OUTSIDE INDIA 6

i. Remia v. Sub Inspector of Police, Tanur 1993CriLJ1098

ii. Re: Antony D’Silva, AIR 1949 Mad 3

3. OFFENCE BY INDIAN CITIZENS COMMITTED OUTSIDE 7

i. Ajay Aggarwal v. Union of India, AIR 1993 SC 1637

ii. Narayan Mahale, (1935) 37 Bom LR 885

iii. Central Bank of India v. Ram Narain AIR 1955 SC 36
4. CITIZEN OF INDIA 8

5. SECTION 4 IPC AND SECTION 188 CrPC 8

6. WHICH COURT CAN TRY SUCH OFFENCES 8

i. Empress v. Maganlal ILR Bom 6 622

ii. Emperor v. Vinayak Damodar Sarvarkar 1910 (35) ILR 223

iii. Om Hemrajani v State of U.P. and Another AIR 2005 SC 392

7. TRIAL OF A NON-INDIAN CITIZEN WHO COMMITTED OFFENCE ON INDIAN SHIP

11

8. DOCTRINE OF autrefois convict OR autrefois acquit IN RESPECT OF OFFENCES COMMITTED

ABROAD 11

i. R v. Hutchinson (1677) 3 Keb 785

9. PROVISO TO SECTION 188 11

i. Ajay Aggarwal v. Union of India, AIR 1993 SC 1637

ii. Remia v. Sub Inspector of Police, Tanur 1993CriLJ1098

iii. Vijaya Saradhi Vajja v. Devi Sriroopa Madapati 2007 Cr LJ 636 (AP)

10. CONCLUSION 10

Bibliography

1. INTRODUCTION

2
The traditional doctrine of criminal jurisdiction followed in Anglo-Indian law is based on the
fundamental principle that ``All crime is local''. The jurisdiction over the crime belongs to the
country where the crime is committed. While this may be so even today as a general principle,
the requirements of modern life in a shrunken world have made it necessary for states to exercise
jurisdiction on the basis of criteria other than that of territorial location. States claim extra
territorial jurisdiction in cases where their legitimate interests are affected by objective
territorial, nationality, passive personality, security, universality claims and so on. On the basis of
the so-called objective territorial principle, a state may assume jurisdiction in respect of an
offence commenced in another state ``if one of the constituent elements of the offence, and more
especially its effects'', has taken place within its territory.

Substantive law of extra-territory in respect of criminal offences is provided for by Section 4 of

the IPC and the procedure to inquire and try it is contained in Section 188 Cr.P.C. Effect of these
sections is that an offence committed by an Indian citizen outside the country is deemed to have
been committed in India. Proviso to Section 188 Cr.P,C. however provides the safeguard for the
NRI to guard against any unwarranted harassment by directing, "that, notwithstanding anything
in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in
India except with the previous sanction of the Central Government".1

As regards to the competency of the state to punish offenders for offences not committed within
its territorial jurisdiction, now, the fetter imposed upon by the Article 245(2) of the Constitution,
‘no law made by the Parliament shall be deemed to be invalid on the ground that it would have
extra-territorial operation’. This clause of the constitution may be taken to confer unlimited
extra-territorial jurisdiction, upon the Union Parliament.2

This paper is an attempt to find out and analyse the settled principles where the matter involves
extra-territorial jurisdiction in the light of section 188 CrPC.

2. SECTION 188 OF CRPC. OFFENCE COMMITTED OUTSIDE INDIA.

Section 3 of the Indian Penal Code3 helps the authorities in India to proceed by treating the
offence as one committed within India. No doubt it is by a fiction that such an assumption is
1
Ajay Aggarwal v. Union of India, MANU/SC/0265/1993 para 29, AIR 1993 SC 1637
2
R.Gopal, Sohoni’s Code of Criminal Procedure (20th ed. 2007, Lexis Nexis Butterworths, New Delhi) Vol 3, 2185

3
made. But such a fiction was found necessary for practical purposes. Section 3 of the Penal Code
was found insufficient for police authorities to investigate into the offence. It was in the
aforesaid context that Section 188 has been incorporated in the Procedure Code. 4 It is corollary
to sec.4 I.P.C5. and is its procedural counterpart.6

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; or

(b) By a person, not being such citizen, on any ship or aircraft registered in India.

He may be dealt with in respect of such offence as if it had been committed at any place within
India at which he may be found:

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such
offence shall be inquired into or tried in India except with the previous sanction of the Central
Government.

This section provides for extra-territorial jurisdiction over Indian citizens as well as Non-Indian
Citizens.7 Language of the section is plain and simple. It operates where an offence is
committed by a citizen of India outside the country. Requirements are, therefore, one -
commission of an offence; second - by an Indian citizen; and third - that it should have been
committed outside the country.8

The section specifies two cases in which a person is triable for offence committed out of India,
namely ,-

1. When an Indian citizen commits an offence in any place either on the high seas or
elsewhere, and
3
Section 3 of the I.P.C. reads:
"Any person liable, by any Indian law, to be tried for an offence committed beyond India, shall be dealt with according to the provisions of this
Code for any act committed beyond India in the same manner as if such act had been committed within India."
4
Remia v. Sub Inspector of Police, Tanur MANU/KE/0218/1992 para 5, 1993CriLJ1098
5
Section 4 I.P.C reads:
"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."
6
In re: Antony D’Silva, AIR 1949 Mad 3
7
Ratanlal &Dhirajlal, The Code of Criminal Procedure, (18th ed., Wadhwa & Co. Nagpur, New Delhi, 2007) 673
8
Ajay Aggarwal v. Union of India, MANU/SC/0265/1993 para 28, AIR 1993 SC 1637

4
 2. When any person, not being such citizen, commits an offence on any ship or aircraft
registered in India.9

Way back in 1935 it was observed by Bombay High Court that for applicability of this section it
must be shown that an accused has been guilty of an act or omission made punishable by some
law (law applicable in India) for the time being in force.10

3. OFFENCE BY INDIAN CITIZENS COMMITTED OUTSIDE

Clause (a) of section 188 talks about jurisdiction of Indian Courts over an Indian Citizen when
he commits an offence outside Indian territory. In such a case h will be dealt in such a way as if
the offence has been committed in in India.11

When an offence is committed by a citizen of India outside India whether on high seas or
elsewhere, he may be tried in respect of such an offence as if the offence had been committed at
any place within India at which he may be found.

A citizen of India committing an offence outside India is subject to the jurisdiction of Indian
Courts. The case of Central Bank of India v. Ram Narain12 dealt with the offence committed
outside India, by a person who acquired Indian citizenship after he had committed the said
offence – It was held that the person had not acquired the citizenship of India at the time of
offence, and therefore Section 4 of the Indian Penal Code and Section 188 of the Code of
Criminal Procedure Code was not applicable

4. CITIZEN OF INDIA

The expression citizen of India under Article 5 of the constitution means every person who had
his domicile in the territory of India at the commencement of the Constitution and

a. Who was born in the territory of India or

b. Either of whose parents were born in India or
c. Who has been ordinarily resident in the territory of India for not less than five years immediately
preceding the commencement of the constitution.

9
Ibid
10
Narayan Mahale, (1935) 37 Bom LR 885
11
Ratanlal & Dhirajlal, (672)
12
AIR 1955 SC 36

5
 Persons who have migrated from Pakistan are also of Citizen of India provided that they satisfy
the conditions mentioned in Article 6 of the Constitution.13

5. SECTION 4 IPC AND SECTION 188 CrPC

The language of section 188 CrPC and that of Section 4 IPC 14, plainly means that if at the time
of commission of the offence, the person committing it, is citizen of India, then even if the
offence is committed outside India, he is subject to the jurisdiction of the courts in India. The
rule enunciated in the sections is based on the principle that qua citizens, the jurisdiction of
courts is not lost by the reason of venue of offence. 15 The section 188 provides for the necessary
procedural complement to Section 4 of the IPC and other penal laws which have extraterritorial
application.16

6. WHICH COURT CAN TRY SUCH OFFENCES

Generally the rule is that The Courts within whose jurisdiction the offender may be found will
have jurisdiction in the matter. But it may not always be so.

In Empress v. Maganlal17 decided in the year 1882 interpreting the word 'found', it was opined
that it was used to confer the jurisdiction to the court of a place where the accused is actually
found, i.e., produced before the Court and not where a person is discovered. In other words, it
would mean that an accused may be discovered by the Police at a place not within the
jurisdiction of the Court enquiring or trying but that is not the place contemplated by
Section 188. For the purpose of jurisdiction, it would be the court where he is actually produced
or appears which can said to have found him.

In Emperor v. Vinayak Damodar Sarvarkar.18 The contention that the accused is charged
before a Magistrate with an offence under the Penal Code and was brought there illegally from a
foreign country was rejected. An illustration was given in that a man commits a crime, say
murder, in a country but he escapes to some other country before he is apprehended, the Police
finding him in some other country, brings him to England and produces him before a Magistrate.
It would not be open to the Magistrate to refuse to commit him. The Court held that "If he were
13
Ratanlal & Dhirajlal, (672)
14
Ibid 5
15
R.Gopal, Sohoni’s Code of Criminal Procedure (20th ed. 2007, Lexis Nexis Butterworths, New Delhi) Vol
3,2185
16
A.V.Mohan Rao v. Kishan Rao, (2002) 6 SCC 174

17
ILR Bom 6 622
18
1910 (35) ILR 223

6
brought here for trial, it would not be a plea to the jurisdiction of the Court that he had escaped
from justice, and that by some illegal means he had been brought back".

But in my opinion the above decision of the Court cannot be said to be a good law in the present
times when we have to follow due process of law where even an legal act done through illegal
means will be illegal only. The principle of fruit of a poisonous tree must follow here. I hold that
the above observation of the court does not qualify to be a good law in a democratic society.

In Sahebrao Bajirao v. Suryabhan Ziblaji and Ors19. The question posed was as to who is to do
the 'finding'. Learned Judge held that the word 'found' in Section 188 means found by the Court
at the time when the matter comes up for trial, that is to say, any Court which is otherwise
competent to try the offence can take seisin the moment the accused appears in its presence.
How the accused gets there is immaterial. It does not matter whether he comes voluntarily or in
answer to summons or under illegal arrest. It is enough that the Court should find him present
when it comes to take up the matter.

In the year 2004, the Hon’ble Supreme Court in the Case of Om Hemrajani v State of U.P. and
Another20 interpreted the expression 'at which he may be found' in the aforesaid section. On
whom, under Section 188, does the responsibility to find the accused lies on the complainant, the
Police or the Court? The question arose under the following circumstances:

A Dubai based bank, filed a complaint against Om Hemarajani and another in the Court of
Special Judicial Magistrate (CBI), Ghaziabad under Sections 415, 417, 418 and 420 read with
Section 120-B IPC. It was, inter alia, alleged in the complaint that the petitioner obtained loans,
but instead of discharging the liability, the accused absconded without liquidating his liability to
the bank. The Ghaziabad Magistrate took cognizance of the offence and issued processes against
the person arraigned in the complaint and also issued non-bailable warrants.

The petitioner appealed before the High Court. The main contention urged before the High Court
was that no cause of action or part thereof had occurred within the territorial jurisdiction of the
court at Ghaziabad; the petitioner was not residing within the jurisdiction of that Court nor the
complainant had any office at Ghaziabad and, thus, court at Ghaziabad had no jurisdiction to
take cognizance of the offence. The accused was residing in Mumbai.

19
MANU/NA/0114/1947, AIR1948Nag251
20
AIR 2005 SC 392

7
 In terms of the impugned judgment, the High Court rejected the contention that Ghaziabad court
lacks jurisdiction to entertain the complaint. Challenging the High Court's judgment the
petitioner reached Supreme Court.

Observation of Supreme Court:

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.

7. TRIAL OF A NON-INDIAN CITIZEN WHO COMMITTED OFFENCE ON INDIAN

SHIP

Clause (b) says that if a person not being a citizen of India commits an offence on a ship or
aircraft registered in India, he may be dealt with in respect of such offence as if it had been
committed at any place within India at which he may be found.

This provision is there to deal mainly with specific offences to which a universal, or near
universal extra-territorial jurisdiction attaches which includes: piracy, war crimes, the hijacking,
endangerment or sabotage of aircraft or ships and offences involving terrorist bombing and
explosives.

8. DOCTRINE OF autrefois convict OR autrefois acquit IN RESPECT OF OFFENCES

COMMITTED ABROAD.

8
 It is a principle in common law that a person who has been tried and convicted or acquitted by a
court of competent jurisdiction in another country may not be tried again in England and Wales
in respect of same offence.21

9. PROVISO TO SECTION 18822

The object of requiring the sanction of the Central Government appears to be to prevent the
accused person being tried all over again for the same offence in two different places. This
object is to secured by refusing to extradite the offender if he is wanted for being tried in a
foreign country subsequent to his trial in an Indian Court, or by refusing to sanction a
prosecution against him as if he has been already tried in a foreign country in respect of the same
offence.

In Ajay Aggarwal v. Union of India 23 appellant a non-resident Indian (NRI) who never visited
India in relation to criminal conspiracy contented that no proceedings can be initiated against
him without approval of Central Government but the Supreme Court held that sanction under
Section 188 is not a condition precedent to take cognizance of the offence. 24 It means that the
consent of Central Government may be obtained before the trial begins, it is not necessary that
the consent should be obtained before taking cognizance.

In Remia v. Sub Inspector of Police, Tanur,25 where the matter was regarding the death of one
Sulaiman, a complaint has been filed by his mother, widow and brother before the Sub-Inspector
of Police, Tanur (in Malappuram District). In the complaint it is specifically mentioned that they
suspect one Ali to have murdered Sulaiman on 21-6-1992 at Sharjah in United Arab Emirates.
Ext.P3 complaint, according to the petitioners, was not accepted by the Sub-Inspector of Police
on the ground that the alleged offence was committed out side India. K.T. Thomas, J. observed
that:

‘No doubt, Section 188 concerns as to how to deal with a person who has committed an offence
outside India. Since the proviso casts an obligation to obtain previous sanction of the Central

21
R v. Hutchinson (1677) 3 Keb 785
22
Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be
inquired into or tried in India except with the previous sanction of the Central Government.

23
AIR 1993 SC 1637
24
Ajay Agarwal Vs. Union of India and others MANU/SC/0265/1993
25
MANU/KE/0218/1992, 1993CriLJ1098

9
Government to inquire into and try such person, the section has a message that for the pre-
inquiry stage no such sanction is needed. If during pre-inquiry stage any offender can be dealt
with (without such sanction) what could be the contours of that stage? I have no doubt that the
pre-inquiry stage substantially relates to investigation of the crime. If there is any stage in which
an offender can be dealt with before commencement of inquiry, it must be the investigation
stage26.’

‘The upshot is that Sub-Inspector of Tanur Police Station can conduct investigation into the
offence notwithstanding the place of occurrence being Sharjah because the person on whom the
focus of suspicion turns is laid to be a citizen of India.’

In Vijaya Saradhi Vajja v. Devi Sriroopa Madapati27 the court held that the word ‘inquiry’ used
in proviso to sec. 188 is confined to proceedings before the magistrate prior to trial alone, but
cannot be extended to ‘investigation’ by police. Bar, if any would operate to inquiry before the
Magistrate after the police laid the charge-sheet for the offence.

10. CONCLUSION

From the above observations, the followings can be concluded:

1. Police can begin with inquiry where a offence has been committed by Indian citizen
outside Indian territory.

2. Sanction under Section 188 is not a condition precedent to take cognizance of the
offence.

3. The section also prevents double jeopardy.

4. This provision is there to deal with specific offences to which a universal, or near
universal extra-territorial jurisdiction attaches which includes: piracy, war crimes, the
hijacking, endangerment or sabotage of aircraft or ships and offences involving terrorist
bombing and explosives.
5. If the accused is found anywhere in India, the offence can be inquired into and tried by
any Court that may be approached by the victim. The convenience shall be of the victim
and not that of the accused.

26
MANU/KE/0218/1992 para 5
27
2007 Cr LJ 636 (AP)

10