Holding

A court where the complaint is filed and where the accused appears, either voluntarily or by execution of a warrant, is the competent court under Section 188, and the finding of the accused must be made by the court itself.

Summary

The case concerned a complaint filed by a Dubai‑based bank (Respondent No. 2) in the Special Judicial Magistrate Court, Ghaziabad, alleging that the petitioner, Om Hemrajani, had defrauded the bank by obtaining loans in the United Arab Emirates and then fleeing the country. The magistrate took cognizance of the offences under Sections 415, 417, 418, 420 and 120‑B of the IPC and issued non‑bailable warrants. The petitioner challenged the proceedings before the High Court under Section 482 of the CrPC, arguing that the Ghaziabad court lacked jurisdiction because the alleged offence was committed outside India and neither he nor the complainant had any connection with Ghaziabad. The High Court rejected the claim, and the petitioner appealed to the Supreme Court, contending that Section 188 of the CrPC requires the court to have jurisdiction only where the accused is likely to be found. The Supreme Court held that any court where the complaint is filed and where the accused appears—either voluntarily or by execution of a warrant—is competent, and that the responsibility to “find” the accused lies with the court, not the complainant or police. The Court emphasized that the victim’s convenience governs and that safeguards against abuse are available under the Code. Accordingly, the Special Leave Petition was dismissed.

Issues considered

The meaning of the phrase ‘at which he may be found’ in Section 188 of the CrPC and its effect on jurisdiction
Whether a court in India can take cognizance of an offence committed outside India when neither the complainant nor the accused has a territorial link with that court
Who bears the responsibility for ‘finding’ the accused under Section 188 – the complainant, the police or the court
Whether the victim’s convenience can determine the choice of court for offences committed abroad

Legislation cited

Code of Criminal Procedure, 1973s. 177, s. 178, s. 179, s. 180, s. 181, s. 187, s. 188, s. 482
Indian Penal Code, 1860s. 120-B, s. 415, s. 417, s. 418, s. 420

Subjects

Section 188jurisdictionoffence committed outside IndiaCriminal Procedure Codevictim conveniencefinding of accusedextraterritorial offencescriminal court jurisdiction

Judgment

OM HEMRAJANI A
v.
STATE OF U.P. AND ANR.

_ NOVEMBER 25, 2004
B
[Y.K. SABHARWAL AND D.M. DHARMADHIKARI, JJ.]

Code of Criminal Procedure, 1973-Section 188-0ffence committed
outside India-Inquiries and Trial-Jurisdiction of Criminal Court-Held:
The offences committed outside India can be inquired and tried by any
Court in India approached by the victim-The Court where the complaint . C
is filed and where the accused appears either voluntarily or in execution
of warrant would be the competent Court-The finding of accused has to
be by the Court and not the complainant or Police-The convenience of
the victim and not the offender is relevant-Determination of the abuse of
such wide option to the victim would depend on the facts of each case. D

Respondent No. 2, a Dubai based Bank filed a complaint against
the petitioner in a Criminal Court at Ghaziabad for commission of
offences punishable under IPC. Criminal Court took cognizance of the
offence and issued processes and also issued non-bailable warrants.
Petitioner filed petition u/s 482 Cr.P.C. seeking quashing of the complaint E
case and also challenged the order of the Criminal Court on the ground
that the Court at Ghaziabad had no jurisdiction to take cognizance of
the offence as neither the petitioner resided there nor the eomplainant
had any office there. High Court held that the Court did not lack
jurisdiction to entertain the complaint. F
In appeal to this Court petitioner contended that the likelihood of
the availability of the offender is implicit in the expression used in
Section 188.

Respondent-Bank contended that in view of Scheme of Chapter G
XIII, the expression 'at which he may be found' in S4!ction 188 Cr.P.C.
only means the place where the accused may either appear voluntarily
or brought by Police in execution of warrants of arrest, since the
responsibility to find the accused is of the Court and not that of the
complainant or the Police. H
365
366 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A Dismissing the petition, the Court

HELD : 1.1. 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
B competent Court within the meaning of Section 188 Cr.P.C. as that
Court would find the accused before him where 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. [373-D, E]

C 1.2. From the scheme of Chapter XIII of Cr.P.C., it is clear that
neither the place of business place of residence of the petitioner and for
that matter of even the complainant is of any relevance. The relevant
factors 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.
D 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
E 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. 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
F who is hiding after committing offence abroad and is fugitive from
justice is not relevant. The Court 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. It is in this context,
the expression in question has to be interpreted. [370-G-H; 371-A, B, C]
G Reg. v. Benito Lopez, (1858) Cr.L.C. 431; Empress v. Magan/al, ILR
Born. Series (Vol. 6) 622; Emperor v. Vinayak Damodar Sarvarkar, (1910)
35 ILR 223 and Sahebrao Bajirao v. Suryabhan Ziblajit and Ors., AIR
(1948) Nag. 251, referred to.

H 2. Regarding the abuse of such wide option of the victim, there are
OM HEMRAJANI v. STATE [SABHARWAL, J.] 367

enough provisions in Cr.P.C. for redressal of any particular abuse. A.
Whether a particular case is an abuse or not would depend on its own
facts.

CRIMINAL APPELLATE JURISDICTION : Special Leave Petition
(Crl.) No. 99 of 2004. B
From the Judgment and Order dated 14.11.2003 of the Allahabad High
Court in Crl.M.A. No. 8741 of 2003.

Vijay K<:Jtwal, S.B. Keswani, Sushil Karanjkar and Venkateswara Rao
Anumolu for the Petitioner. C
Vinod A. Bobde, S. Mudaliar, Arujun Bobde, Hrishikesh Baruah and
S. Misra for the Respondent No. 2.

Prashant Chaudhary and Praveen Swamp for State of U.P.
n
The Judgment of the Court was delivered by

Y.K. SA.BHARWAL, J. : The interpretation of Section 188 of the
Code of Criminal Procedure, 1973 (Code) falls for determination in this
petition. The said section reads as under : E
"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 F.
(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 G
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." H
368 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A The sole question is about the interpretation of 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 - the complainant, the Police
or the Court? The question has arisen under the following circumstances :

Respondent No. 2, a Dubai based bank, has filed a complaint against
B the petitioner and another in the Court of Special Judicial Magistrate (CBI)
under Sections 415, 417, 418 and 420 read with Section 120-B IPC. It has
been, inter alia, alleged in the complaint that the petitioner obtained loans,
executed various documents in proof of his ability to discharge the bank
liability and gave his personal guarantee. But instead of discharging the
C liability, the accused absconded without liquidating his liability to the bank.
The accused cheated and defrauded the bank in obtaining loan facilities
knowing fully well that he had no intention to pay it back and fled from
UAE. The Magistrate took cognizance of the offence and issued processes
against the person arraigned in the complaint and also issued non-bailable
warrants.
D
The petitioner sought quashing of the complaint case by filing a
petition under Section 482 of the Code before the High Court and also
challenged the order of the Magistrate dated 6th October, 2003 taking
cognizance of the offence along with non-bailable warrants issued against
E him. 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.

F In terms of the impugned judgment, the High Court has rejected the
contention that Ghaziabad court lacks jurisdiction to entertain the complaint.
Challenging the High Court's judgment, Mr. Vijay Kotwal, learned senior
advocate, submits that the High Court erroneously construing Section 188
has come to the conclusion that the Special Judicial Magistrate at Ghaziabad
G has jurisdiction to entertain the complaint. Learned counsel submits that the
interpretation placed by the High Court on Section 188 is not legal and, if
upheld, it would cause, as in the present case, unnecessary harassment to
the accused. Our attention has also been drawn to para 21 of the complaint
which reads as under :

H "21. JURISDICTION
OM HEMRAJANI v. ST ATE [SABHARWAL, J.] 369

That this Hon'ble Court has territorial jurisdiction to try, A
inquire and take cognizance. In the present case, the accused persons
have conspired together in India and in furtherance of their
conspiracy and common intention of cheating and defrauding the
Complainant Bank opened an account with the Complainant Bank,
availed of various loan facilities knowing fully well that had no
intention of paying back the same, fled from UAE. It may be
B
pertinent here to mention that the accused has business all over
India and abroad and for that purpose travels all over India and
abroad."

Learned counsel contends that vague averments as above have been C
made and the complainant knows that the petitioner lives at Mumbai and
has also business operations there, no cause of action took place at Ghaziabad
and even the complainant bank has no operations at Ghaziabad. The
submission is that nothing has been stated in the complaint as to what
happened in Ghaziabad. Mr. Kotwal contends that when Section 188 states
that offence committed outside India by an Indian citizen may be dealt with D
at any place within India at which the offender may be found, it is implicit
that the competent Court at the place where the offender is likely to be found
will have jurisdiction and not any court which the complainant may choose.
The likelihood of the availability of the offender is implicit in the expression
used in Section 188 of the Code, is the submission, otherwise it would mean E
that the complaint may be filed in any part of India, which could never have
been the intention of the law. The argument looks very attractive at the first
blush but that is all since its deeper consideration shows that it has no
substance.

Representing the complainant bank, respondent No. 2, Mr. Vinod A. F
Bobde, learned Senior Counsel, submits that unlike civil proceedings the
residence of the offender as a concept of part of cause of action has no
relevance in construing the provisions of the Code, particularly, Section
188. Learned counsel submits thatthe scheme of Chapter XIII clearly shows
that the expression 'at which he may be found' in Section 188 only means
the place where the accused may either appear voluntarily or may be brought G
by the Police in execution of the warrants of arrest since the responsibility
to find the accused, within the meaning of Section 188, is only of the court
and not that of the complainant or the Police. Learned counsel further
submits that the law in regard to interpretation of Section 188 has been well
settled for over 150 years. H
370 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A Let us examine the provisions of Chapter XIII of the Code which deals
with the jurisdiction of the criminal courts in inquiries and trials.

Section 177 postulates that ordinarily offence shall be inquired into and
tried by a court within whose local jurisdiction it was committed. Section
B 178, inter alia, deals with situations when it is uncertain in which of several
local areas, an offence is committed or partly committed in one area and
partly in another. The section provides that the offence can be inquired into
or tried by a court having jurisdiction over any of the local areas mentioned
therein. Under Section 179, offence is triable where act is done or
consequences thereof ensued. Section 180 deals with the place of trial where
C act is an offence by reason of its relation to other offence. It provides that
the first mentioned offence may be inquired into or tried by a court within
whose local jurisdiction either act was done. In all these sections, for
jurisdiction the emphasis is on the place where the offence has been
committed. There is, however, a departure under Section 181(1) where
D additionally place of trial can also be the place where the accused is found, .
besides the court within whose jurisdiction the offence was committed. But
the said section deals with offences committed by those who are likely to
be on move which is evident from nature of offences mentioned in the
section. Section 181 (I) is in respect of the offences where the offenders are
not normally located at a fixed place and that explains the departure. Section
E 183 deals with offences committed during journey or voyage. Section 186
deals with situation where two or more courts take cognizance of the same
offence and in case of doubt as to which one of the courts has jurisdiction
to proceed further, the High Court decides the matter. Section 187 deals with
a situation where a person within local jurisdiction of a Magistrate has
F committed an offence outside such jurisdiction. The Magistrate can compel
such a person to appear before him and then send him to the Magistrate
which has jurisdiction to inquire into or try such offence.

Under the aforesaid circumstances, the expression abovenoted in Section
188 is to be construed. The same expression was also there in the old Code.
G 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 -.
H be found, to be a place of commission of offence. Section 188 proceeds on
OM HEMRAJANI v. STATE [SABHARWAL, J.] 371

the basis that a fugitive from justice may be found anywhere in India. The A
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 B
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 c
in question has to be interpreted. Section 188 has been subject matter of
interpretation for about 150 years.

In Reg. v. Benito Lopez, [1858] Cr.L.C. 431, dealing with the question
ofjurisdiction of English courts in respect of offences committed on the high D
seas by foreigners on board English ships, decision was rendered by 14
Judges, i.e., all the judges of the Court except Bramwell, B. The accused
was held to have been found within jurisdiction of the county where he w.as
tried. The decision refers to principles of International Law that a person
is liable to be punished of all such offences wheresoever committed.
Interpreting the word 'found' in provision under consideration in that case, E
which was to the following effect :

"If any person being a British subject charged with having committed
any crime or offence on board any British ship on the high seas,
or in any foreign port or harbour; or if any person, not being a F
British subject, charged with having committed any crime or offence
on board any British ship on the high seas, is found within the
jurisdiction of any court of justice in Her Majesty's dominions,
which would have cognizance of such crime or offence if committed
within the limits of its ordinary jurisdiction, such court shall have
jurisdiction to hear and try the case as if such crime or offence had G
been committed within such limits: provided that nothing contained
in this section shall be construed to alter or interfere with the act
12 & 13 Viet. C. 96."

It was held that the word 'found' is used in its most extensive sense, H
372 SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A and was intended to include all cases by giving jurisdiction to try at any
place where the prisoner might happen to be at the time of trial. The object
of the provision was to get rid of all questions about·local jurisdiction. Lord
Campbell, Chief Justice, in his opinion, dealing with the contention that if
}
the prisoner was brought within the jurisdiction of the court against his will,
B he cannot be said to have been found there within the meaning of the Act,
held that a man is 'found', within the meaning of that Act, in any place where
he is actually present.

In Empress v. Magan/al, [ILR Born Series (Vol.6) 622), decided in the
year 1882 interpreting the word 'found', it was opined that it was used to
c 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
D jurisdiction, it would be the court where he is actually produced or appears
which can said to have found him. As earlier stated, the finding of the
accused is to be by the Court inquiring or trying and not by the Police.

The aforesaid decisions were referred to and relied upon in Emperor
v. VinayakDamodar Sarvarkar, [1910) 35 ILR 223. The contention that the
E 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
4~
F 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 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".

G The last decision on interpretation of Section 188 is of Justice Vivian
Bose in Sahebrao Bajirao v. Suryabhan Ziblaji & Ors., AIR (1948) Nag.
251. 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 ,..'
~·

H otherwise competent to try the offence can take seisin the moment the

L
OM HEMRAJANI v. STATE [SABHARWAL, J.] 373

accused appears in its presence. How the accused gets there is immaterial. A
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 our opinion, the law has been correctly enunciated by in the aforesaid
B
case. 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, c
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 ~ictim
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 D
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 ~e by the Court. It has neither to be by the
complainant'n'or by the Police. The section deems the offence to be committed
within the jurisdiction of the Court where the accused ~ay be found. E
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 atthe cost of victim's convenience. Between the two, the convenience F
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.

In view of the aforesaid, the Special Leave Petition is dismissed. G

K.K.T. Petition dismissed.