Supreme Court of India
FATMA BIBI AHMED PATELversusSTATE. OF GUJARAT & ANR.
- Citation
- 2008 INSC 645
- Decided
- 13 May 2008
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
The Supreme Court held that the Indian courts lack jurisdiction to try a non‑Indian citizen for an offence alleged to have been committed outside India, so the magistrate’s order taking cognizance is illegal and the proceedings are void.
Summary
The appellant, a citizen of Mauritius, was served with a summons after a complaint by her daughter‑in‑law alleging physical and mental torture, allegedly committed in Kuwait. All parties were residents of Kuwait and were in India on visitor visas when the complaint was filed. The Chief Judicial Magistrate took cognizance and ordered summons, but the appellant challenged the jurisdiction, arguing that Sections 4 of the Indian Penal Code and 188 of the Code of Criminal Procedure did not apply to a non‑Indian citizen for an offence committed outside India. The trial court dismissed the challenge; the revisional court set aside the order, and the High Court upheld that decision. The Supreme Court held that because the appellant is not an Indian citizen and the alleged offence occurred outside Indian territory, neither Section 4 IPC nor Section 188 CrPC applies, rendering the magistrate’s cognizance illegal and the proceedings void. Consequently, the appeal was allowed and the proceedings quashed.
Issues considered
- Whether Section 4 of the Indian Penal Code confers jurisdiction over a non‑Indian citizen for an offence committed outside India.
- Whether Section 188 of the Code of Criminal Procedure applies to the present case and requires prior sanction of the Central Government.
- Whether the proceedings initiated by the magistrate are void due to lack of jurisdiction.
- Whether principles of res judicata can bar the appellant from challenging the jurisdictional defect.
Legislation cited
Subjects
extraterritorial jurisdictionSection 4 IPCSection 188 CrPCnon‑resident citizencriminal proceduresanction requirementnullity of proceedingsres judicata
Judgment
[2008] 8 S.C.R. 391
FATMA BIBI AHMED PATEL A
V.
STATE. OF GUJARAT & ANR.
(Criminal Appeal No.873 of 2008)
MAY 13, 2008
B
[S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.]
, ,
Penal Code, 1860; s.4/Code of Criminal Procedure,
1973; s. 188:
Intra-territorial offences - Applicability of Penal Code to C
- Jurisdiction of courts in India - Held: Accused is a citizen of
Mauritus and has been in India on visas issued by India -
Since accused is not resident of India and offence has not
been committed within the territorial limit of India, the provi-
sion of the Penal Code as also the Code of Criminal Proce- D
dure do not apply - The order of Judicial Magistrate tc;iking
cognizance of the complaint by her daughter in law against
her son and herself was without jurisdiction.
A Complaint Petition was filed by the daughter-in-law E
of the appellant alleging physical and mental torture by
her husband and instigation thereof by the mother-in-law,
the appellant. Though all of them were residents of Ku-
wait and they were in India on visiting visas, the Chief
Judicial Magistrate took cognizance of the complainant
' and directed issuance of summons to appe.llant. The ap~ F
pellant challenged the order of trial court as bad in law as
complaint was filed by her daughter-in-law without ob-
taining sanction in terms of provisions uls 188 Cr.P.C .. The
Application was dismissed by the trial judge. The Revi-
sion Application filed thereagainst by the appe11ant was G
allowed by the Revisional Court. The complainant chal~
lenged the order, which was allowed by the High Court.
Hence, the present appeal.
391 H
392 SUPREME COURT REPORTS [2008] 8 S.C.R.
A Appellant contended that having regard to the pro-
visions contained in S.4 of the Indian Penal Code and
S.188 of the Code of Criminal Procedure, the order of the
trial judge taking cognizance as against the appellant was
bad in law.
B Respondent No.2 submitted that having regard to the
fact that the appellant having filed an application for
quashing the proceedings on the ground of non-compli-
ance of the provisions of S.188 of the Code of Criminal
Procedure as also having filed another application for
c quashing the proceedings which stood withdrawn, the
said application was not maintainable.
Allowing the appeal, the Court
HELD: 1.1 In terms of S.4 of the Indian Penal Code,
D the Indian courts will have jurisdiction to try an accused
only if the accused is a citizen of India even if the offence •
was committed outside India or by any person on any ship
or aircraft registered in India wherever it may be. Neither
of the aforementioned contingencies is attracted in the
E instant case. Section 188 of the Code of Criminal Proce-
dure also deals with offences committed outside India.
Clause (a) brings within its sweep a citizen of India,
whether on the high seas or elsewhere, or by a person,
although not citizen of India when the offence is commit-
F ted on any ship or aircraft registered in India. In view of
the fact that the offence is said to have been committed in
Kuwait, the provisions of the Indian Penal Code or the
Code of Criminal Procedure cannot be said to have any
application. [Para 5] [397 D-F]
G •
Central Bank of India Ltd. vs. Ram Narain AIR 1955 SC
36 - relied on.
1.2 Appellant is a citizen of Mauritius. She has been
visiting India on Visas issued by India. She, thus, indis-
H putably is not a citizen of India. She might have been stay-
FATMA BIBI AHMED PATEL v. STATE OF 393
GUJARAT & ANR.
ing in India with her relatives as has been contended by A
the complainant, but it has not been denied and disputed
that she is not a citizen of India. If she is not a citizen of
India having regard to the provisions contained in S.4,
IPC and S. 188, Cr.P.C., the order of the Judicial Magis-
trate taking cognizance must be held to be Htegal. [Para B
5] [3978,C]
2.1 Principles analogous to res judicata.have no ap-
plication with regard to criminal cases;.,An ~ccused has a
fundamental right in terms of Article 21 of the Constitu-
tion of India to be proceeded against only in accordance C
with law. [Para 5] [401A]
Ajay Agarwal vs. Union of India AIR 1993 SC 1637 - re-
ferred to.
2.2 The entire proceedings having been initiated ille- D
ga!ly and without jurisdiction, all actions taken by the
court were without jurisdiction, and thus are nullities. In
such a case even the principle of res judicata (wherever
applicable} would not apply. [Para 5] [401 EF]
Chief Justice Of Andhra Pradesh And Others v. L. V A. E
Dixitulu And Others AIR 1979 SC 193 and Union of India v.
Pramod Gupta (0) by LRs and Ors., (2005) 12 SCC 1- relied
on.
CRIMINALAPPELLATEJURISDICTION: CriminalAppeal F
No. 873 of 2008
From the final Judgment & Order dated 12.4.2006 of the
High Court of Gujarat at Ahmedabad in Crl. Revision Applica-
tion No. 358 of 2005
G
Sudershan Rajan and J. Verghese (for Ms. Jyoti
Mendiratta} for the Appellant.
\
Pawan Kumar Bahl, Raj Pal Singh, Anil Chandulal
Chrishan, Goodwill lndeever, Pinky, Sangeeta Singh, Jasal and
Hemantika Wahi for the Respondents. H
394 SUPREME COURT REPORTS [2008] 8 S.C.R.
A The Judgment of the Court was delivered by
S.S. 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
B 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,
C 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 Complair:t Petition, however, was filed before the Chief
0
Judicial Magis+rate. Navsari by the said resp 1dent alleging
physic..al and mental torture by her husband (the first accused).
Allegations prim:Jrily against the appellant therein were that
the first accuseLI used to consult her and she used to instigate
him.
E
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
F appellant by an order dated 30 5.2003.
An application was filed by hP.r stating that the complaint
petition filed without obtaining th J requisite sanction under
Section 188 of the Code of Criminal Procedure was bad in
law The same was dismissed.
G
A joint application with her" .--r; was thereafter filed by the
appellant for quashing of the e' cire complaint petition which
was withdrawn.
Appellant. however. filed , r: esh application on or about
H 6.12.2004 raising a conte,-,r - rhat as she 1s a citizen of
FATMA BIBI AHMED PATEL v. STATE OF 395
GUJARAT & ANR. [S.B. SINHA, J.]
Mauritius and as the entire cause of action took place at Kuwait, A
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 8
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 c
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 [AIR 1955 SC 36].
D
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 E
(1$ 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 F
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.- G
The provisions of this Code apply also to any offence
committed by-
(1) any citizen of India in any place without and beyond
India;
H
396 SUPREME COURT REPORTS [2008] 8 S.C.R
.
\ (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.
B
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."
c
Section 188 of the Code of Criminal Procedure reads
as under:
"Section 188- Offence committed outside India. -When
an offence is -::ommitted outside lndia-
D
(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,
E
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
F 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."
In our constitutional scheme, all laws made by Parliament
primarily are applicable only within the country. Ordinarily,
G therefore, all persons who commit a crime in India can be tried
in any place where the offence is committed. Section 41 of the
Indian Penal Code, however, extends the scope of applicability
of the territorial jurisdiction of the court of India to try a case. the
cause of action of which took place outside the geographical
H limits. Parliament indisputably may enact a legislation having
FATMA BIBI AHMED PATEL v. STATE OF 397
GUJARAT & ANR. [S.B. SINHA, J.]
extra territorial application but the same must be applied subject A
to fulfillment of the requirements contained therein.
There are materials before us to show that the appellant
is a citizen of Mauritius. She has been visiting India on Visas
issued by India. She, thus, indisputably is not a citizen of B
India. She might have been staying in India with her relatives
as has been contended by the complainant, but it has not
been denied and disputed that she is not a citizen of India. If
she is not a citizen of India having regard to the provisions
contained in Section 4 of the Indian Penal Code and Section c
188 of the Code of Criminal Procedure, the order taking
cognizance must be held to be illegal.
In terms of Section 4 of the Indian Penal Code, the Indian
courts will have jurisdiction to try an accused only if the accused
is a citizen of India even if the offence was committed outside D
India or by any person on any ship or aircraft registered in
India wherever it may be. Neither of the aforementioned
contingencies is attracted in the instant case. Section 188 of
the Code of Criminal Procedure also deals with offences
committed outside India. Clause (a) brings within its sweep E
a citizen of India, whethe.r on the high seas or elsewhere, or
by a person, although not citizen of India when the offence is
committed on any ship or aircraft registered in India.
In view of the fact that the offence is said to have been
t
committed in Kuwait, the provisions of the Indian Penal Code F
or the Code of Criminal Procedure cannot be said to have
any application.
This aspect of the matter has been considered by this
Court in Central Bank of India Ltd. vs. Ram Narain [supra], G
wherein it was clearly held:
"The learned Attorney-General contended that Ram Narain
was at the time when sanction for his prosecution was
given by the East Punjabn Government, a citizen of India
residing in Hodel and that being so, he could be tried in H
398 SUPREME COURT REPORTS [2008] 8 S.C.R
A India being a citizen of India at that moment. and having
committed offences outside India. and that the provisions
of Section 4 1.P.C. and Section 188. Cr. PC. were fully
attracted to the case
In our opinion, this contention is not well founded. The
B language of the sections plainly means that if at the time
of the commission of the offence, the person committing
it is a 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
c the principle that qua citizens the jurisdiction of courts is
not lost by reason of the venue of the offence. If, however,
at the time of the commission of the offence the accused
person is not a citizen of India, then the provisions of
these sections have no application whatsoever
D
A foreigner was not liable to be dealt with in British India
for an offence committed and completed outside British
India under the provisions of the sections as they stood
before the adaptations made in them after the partition of
India. Illustration (a) to Section 4. l.P.C. delimits the scope
E of the section. It indicates the extent and the ambit of this
section. It runs as follows:
"(a) A, a coolie, who is a Native Indian subject
commits a murder in Uganda He can be tried
F and convicted of murder in any place in British
India in which he may be found"
In the illustration, if (A) was not a Native Indian subject at the
time of the c:lmmission of the murder the provisions of
Section 4. IP.C. could not apply to his case. The circumstance
G that after the commission of the offence a person becomes
domiciled in another country, or acquires citizenship of that
State. cannot confer jurisdiction on the courts of that territory •
retrospectively for trying offences committed and completed
at a time when that person was neither the national of that
H country nor was he domiciled there.·
FATMA BIBI AHMED PATEL v. STATE OF 399
GUJARAT & ANR. [S.B. SINHA, J.]
Strong reliance has been placed by the learned counsel A
appearing on behalf of the respondents on Ajay Agarwal vs.
Union of India [AIR 1993 SC 1637]. The question which
arose for consideration therein was that as to whether a
sanction of Central Government for prosecution in terms of
Section 188 of the Code of Criminal Procedure was necessary. B
The said question was answered in the negative stating:
"8. The question is whether prior sanction of the Central
Govt: is necessary for the offence of conspiracy under
proviso to Section 188 of the Code to take cognizance of
an offence punishable under Section 120-B etc. l.P.C. or C
to proceed with trial In Chapter VA, conspiracy was brought
on statute by the Amendment Act, 1913 (8 of 1913).
Section 120-A of the l.P.C. defines 'conspiracy' to mean
that when two or more persons agree to do, or cause to
be done an illegal act, or an act which is not illegal by D
illeg3I means, such an agreement is designated as
"criminal conspiracy. No agreement except an agreement
to commit an offence shall amount to a criminal conspiracy,
unless some act besides the agreement is done by one
or more parties to such agreement in furtherance thereof. E
Section 120-B of the l.P.C. prescribes punishment for
criminal conspiracy. It is not necessary that each
conspirator must know all the details of the scheme nor be
a participant at every stage. It is necessary that they should
agree for design or object of the conspiracy. Conspiracy F
is conceived as having three elements: (1) agreement (2)
between two or more persons by whom the agreement is
effected; and (3) a criminal object, which may be either
the ultimate aim of the agreement, or may constitute the
means, or one of the means by which that aim is to be G
accomplished. It is immaterial whether this is found in the
1 ultimate objects. The common law definition of 'criminal
conspiracy' was stated first by Lord Denman in Jones'
case (1832 B & AD 345) that an indictment for conspiracy
must "charge a conspiracy to do an unlawful act by unlawful
H
400 SUPREME COURT REPORTS [2008] 8 S.C.R.
A means" and was elaborated by Willies, J. on behalf of the •
Judges while referring the question to the House of Lords
in Mulcahy v. Reg (1868) L.R. 3 H.L. 306 and the House
of Lords in unanimous decision reiterated in Quinn v.
Leathern 1901 AC 495 at 528 as under:
B "A conspiracy consists not merely in the intention
of two or more, but in the agreement of two or
more to do an unlawful act, or to do a lawful act
,.
by unlawful means. So long as such a design
rests in in.tention only it is not indictable. When
c two agree to carry it into effect, the very plot is
an act in itself, and the act of each of the parties,
promise against promise, actus contra actum,
capable of being enforced, if lawful, punishable
of for a criminal object or for the use of criminal
D means.
(emphasis supplied)"
The court therein was concerned with a charge of
conspiracy. It was in the aforementioned context opined that
E no sanction would be required.
R. M. Sahai, .J. in his concurring judgment stated:
"Language of the section is plain and simple. It operates
where an offence is committed by a citizen of India outside
F 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. Out of
the three there is no dispute that the appellant is an Indian
citizen. But so far the other two are that the conspiracy to
forge and cheat the bank was hatched by the appellant
G
and others in India. Whether it was so or not, cannot be
gone into at this stage."
The learned counsel submitted that as in the earlier
application, the appellant merely complained of the absence
H of any sanction, this application should not be entertained.
FATMA BIBI AHMED PATEL v. STATE OF 401
GUJARAT & ANR. [S.S. SINHA, J]
We do not agree. Principles analogous to res judicata have A
no application with regard to criminal cases. An accused has
a fundamental right in terms of Article 21 of the Constitution of
India to be proceeded against only in accordance with law.
The law which would apply in India subject of course to the
provisions of Section 4 of the Indian Penal Code and Section B
188 of the Code of Criminal Procedure is that the offence
must be committed within the territory of India. If admittedly,
the offence has not been committed within the territorial limits
of India, the provisions of the Indian Penal Code as also the
Code of Criminal Procedure would not apply. If the provisions c
of said Acts have no application as against the appellant, the
order taking cognizance must be held to be wholly illegal and
without jurisdiction. The jurisdictional issue has been raised
by the appellant herein. Only because on a mistaken legal
advise, another application was filed, which was dismissed,
0
the same by itself, in our opinion, will not come in the way of
the appellanc to file an appropriate application before the High
Court particularly when by reason thereof her fundamental right
has been infringed.
This Court, in a matter like the present one where the E
jurisdictional issue goes to the root of the matter, would not
allow injustice to be done to a party. The entire proceedings
having been initiated illegally and without jurisdiction, all actions
taken by the court were without jurisdiction, and thus are nullities.
In such a case even the principle of res judicata (wherever F
applicable) would not apply.
In Chief Justice Of Andhra Pradesh And Others v. L. V
A Dixitulu And Others [AIR 1979 SC 193 at 198], this Court
held:
G
"If the argument holds good, it will make the decision of
>1 the Tribunal as having been given by an authority suffering
from inherent lack of jurisdiction. Such a decision cannot be
sustained merely by the doctrine of res judicata or estoppel
as urged in this case."
H
402 SUPREME COURT REPORTS (2008] 8 S.C.R.
A [See also Union of India v. Pramod Gupta (DJ by LRs
and Ors., (2005) 12 SCC 1]
Where a jurisdictional issue is raised, save and except
for certain categories of the cases, the same may be permitted
to be raised at any stage of the proceedings.
8
6. For the reasons aforementioned, the impugned
judgment cannot be sustained. It is set aside accordingly.
The appeal is allowed with costs. Counsel's fee assessed at
..
Rs.25,000/- (Rupees twenty five thousand only).
S.K.S. Appeal allowed.
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