This article is written by Gursimran Kaur Bakshi, from the National University of Study and Research in Law, Ranchi. The article addresses the issue relating to the rights of foreigners to lodge a complaint to report offence(s) committed against them in India.
Although Article 14 of the Indian Constitution extends protection to persons in India irrespective of their nationality, there are misconceptions regarding the rights of foreign nationals in seeking a remedy under the Indian criminal justice system. Article 14 allows all persons to be treated equally before the law and it extends equal protection of the law. The term persons used in the Article is inclusive of foreign nationals along with Indian residents.
This article is a guide on how foreign nationals can invoke the Indian criminal law to lodge a criminal complaint if they have been a victim of a crime in India.
Can foreign nationals invoke the Indian criminal justice system
As stated above, the law treats foreign nationals and Indian residents equally for extending the protection guaranteed before the law. This guarantee is equally applicable to criminal laws. If a foreign national is residing in India, knowing the basic criminal law of the country becomes essential. It is because the person will be able to seek remedy at the right place as a victim. Let’s understand how the criminal laws are applicable to a foreign criminal before understanding how a complaint can be registered.
Laws of the Indian criminal justice system
The three important legislations that any foreign national in India should remember are:
- Indian Penal Code, 1860 (IPC)
- Code of Criminal Procedure, 1973 (CrPC)
- Indian Evidence Act, 1872 (IEA)
All these legislations are interconnected. But for the purpose of a foreign national to seek a remedy, if they have been a victim of crime in India, the first two legislations are only important.
The IPC is the legislation that defines what all actions and omissions are considered as offences in India. A foreign national needs to refer to this legislation to understand whether the act committed against him by someone would be an offence. If yes, what kind of an offence is it- serious or trivial?
Once a person is sure that the act is an offence, he will have to refer to the CrPC. The CrPC is the procedural law that concerns itself with how the criminal law will be set in motion once the commission of an offence takes place. Let’s read further to understand more about the applicability of these laws.
Applicability of the Indian Penal Code
The legislation is applicable to every person, provided that the offence is committed in India as stated in Section 2 of the Code. The Code depends on the place where the crime is committed and not the nationality of the person. This provision reflects the intra-territorial operation of the IPC. The term person is defined under Section 11 as including any company, or association or body of persons, whether incorporated or not.
Thus, the use of the word every person has a wider connotation and includes Indian citizens, non-citizens, and foreign nationals. But it does not include a non-judicial person.
Extraterritoriality of IPC
Extraterritoriality means that the Code will also apply in cases where a crime has been committed by an Indian national outside India. Section 3 and Section 4 of the Code deals with extraterritoriality respectively:
- Under Section 3, any person who has committed a crime beyond India but under the Indian law shall be liable under the Code as if the crime was committed within India.
- Further, Section 4 elaborates on certain situations where Section 3 is applicable. These situations are where an offence is committed by a citizen of Indian outside and beyond India, or where an offence is committed beyond and outside India but targets a computer resource located in India, and where an offence is committed on any ship or aircraft registered in India.
- A similar provision to Section 4 is also present in Section 188 of CrPC. According to Section 188, no offence committed outside India by an Indian citizen on high seas or elsewhere or by a person not being an Indian citizen on the ship or aircraft registered in India shall be inquired or tried into except by the previous sanction of the central government.
- Hence, the extraterritorial operation of IPC relates to land, air, and sea. This means that the Sections asserts the principle of criminal liability on the basis of the locality and place of the offence committed.
- Further, if an act is an offence within the context of the Code and of a consequence which has ensued in India, the same shall also be inquired into or tried by a Court within the local jurisdiction of the Indian Courts. This is mentioned under Section 179 of CrPC.
To understand these two provisions, let’s refer to certain important laws.
Liability depends on the locality of the offence
In Mobarak Ali Ahmed v. State Bombay (1957), the Supreme Court observed that the exercise of criminal jurisdiction depends upon the locality of the offence committed and it has got nothing to do with the nationality or locality of the offender.
In this case, a national of Pakistan was convicted for the offence of ‘cheating’ under Section 420 of the IPC in India. He had made false representations to a complainant for the import of rice from Karachi to Goa through various modes of communication in Bombay. Since the property was to be delivered in Bombay, the complainant had suffered as a consequence of his deception in Bombay. Hence, a foreign national does not need to be corporeally present in India to attribute criminal liability to him.
In Ajay Agarwal v. Union of India (1993), the Court was concerned with whether Section 3 and 4 are to be applied in the offence of ‘conspiracy’ the parts of which are hatched outside India. The Court observed that Section 120A and Section 120B are a part of a continuing offence and any action or omission done on the part of the same offence, will be attributed to the liability under the Code. It does not matter whether the violator was present in India at the time when the acts were committed.
In another case of Mohammad Ajmal Mohammad v. The State of Maharashtra (2011), the Supreme Court held the foreign nationals liable under Section 121A and Section 122 for the offence of ‘waging war’ against the government of India. This case concerned the 26/11 Mumbai terrorist attacks that were perpetrated by a Pakistani militant Ajmal Amir Kasab on innocent civilians and other foreign nationals present in India during that time. The Court awarded him the death penalty.
Liability based on the consequence of the offence ensuing in India
In Seville Products Ltd vs. Mumbai Import (2020), the Custom, Excise, and Service Tax Appellate Tribunal (Mumbai) while referring to the applicability of the Customs Act, 1962, stated that the IPC is dependent on the “act or its violation” which should have its effect and consequence within the territorial limits of India.
So, if the violation of the provision is committed within India or has the effect of being committed in India, then the consequence in conformity with the Code would ensue since it jeopardises the interest of the state. This will not be dependent on whether the violator is an Indian citizen or an alien.
Thus, it is important to determine if the act or its omission is in violation of the Code and not whether the violator is a legal person based in the Country or not. However, this shall include a situation where the act is committed by a foreign national beyond the territorial jurisdiction of India.
Further, a foreign national cannot take ignorance of the law that he was unaware that his acts or omission attribute as an offence under the Code as held in State of Maharashtra v. Mayer Hans George (1965).
Thus, a foreign national can be held liable in India if he commits an offence under the IPC as per the above-mentioned conditions. Now, the rest of the article will focus on how a foreign national can set the Indian criminal system in motion.
How can an FIR be lodged by a foreign national
Since it has been proved above that the criminal laws are equally applicable to foreign nationals in India or against whom the act has been perpetrated in India, we need to see how the person can identify the type of offence committed against him.
The IPC divides offences as cognizable and non-cognizable. The former category consists of a list of serious offences. Whereas, the latter is considered as non-serious offences. These are divided into two parts because in cognizable offences the police can arrest the offender without permission from the Judicial magistrate. A list of offences recognised as cognizable are mentioned under Schedule I of the CrPC. Further, the Code divides offences as bailable and non-bailable. Those offences which are serious in nature are usually within the category of non-bailable offences.
Any offence under Schedule I is committed against a foreign national, the first step should be to report it. For that, we need to understand what a First Information Report (FIR) and a complaint mean.
In usual cases, when a crime is committed against a person and that crime falls within the ambit of Schedule I, the person has to register an FIR Section 154 of CrPC. FIR is nothing but giving information to the police about the commencement of a cognizable offence. The Code does not define the meaning of an FIR.
Further, the aggrieved person can also write an application directly to the Magistrate for the same. The CrPC empowers a Magistrate to take cognizance over the commission of an offence under Section 190 through a complaint. A complaint is defined under Section 2(d) of the CrPC as any allegation made in writing or given orally to a Magistrate.
The allegations must be made with the view to his taking action under the CrPC over the commission of an offence and against a person who has committed it. The person does not have to be known. However, it does not include a police report.
A complainant for lodging an FIR or for writing an application to the Magistrate can be any person and he/she does not necessarily have to be an Indian citizen. If the law neither prescribes a qualification nor bars the person by necessary implication or express prohibition, then any person, aggrieved or otherwise, can set the law in motion.
In A.R Antulay v. Ramdas Sriniwas (1984), the Court while discussing the scope of Section 190, held that the fundamental postulates of the administration of criminal justice allow any person to set the criminal law in motion. Only when there is a special provision to the contrary, a person can be restricted to seek the remedy.
Steps to lodge an FIR at the police station
- An FIR is the most important document as it sets the criminal law into motion. It is where the investigation begins by the police officer. In a landmark case of Lalita Kumar v. Government of U.P(2013), the Supreme Court referred to the FIR as the most important and mandatory document for a criminal investigation. The police officer is obliged to register an FIR.
- A foreign national can visit the nearest police station from where the offence has taken place, and refer his complaint to the police officer in writing. The information must disclose a cognizable offence. The person can also communicate the commencement of an offence orally to the police officer.
- The police will then mandatorily take down the information along with the signature of the complainant in the police register. This is important to safeguard against any illegal or mala fide investigation of the police officer. The information entered into the register shall be read over to the complainant.
- A copy of the information entered shall be handed over to the complainant for free of cost.
- Once this is done, the investigation is initiated by the police officer as per Section 156 and the police is empowered to arrest the accused under Section 157. The police can then forward the accused to the Magistrate if there is sufficient evidence against him.
- The police officer’s investigation ends with the submission of a final police report under Section 173(2) to the Magistrate.
What should a foreign national do when they are not present in the state where the crime was committed
- If the person is in a different state and the crime committed against him took place in a different state, then a zero FIR can be registered in any police station which is nearest to that person’s locality.
- A zero FIR can be lodged in any police station in India as observed in Kirti Vashisht vs. State & Ors (2019). Once the FIR is lodged, the same way as it has been mentioned above, the police station will transfer the FIR to the concerned police station which is nearest to where the crime has been committed for the investigation to begin.
What should a foreign national do when the police refuse to register an FIR
- If the police refuse to register an FIR, the person can refer his written complaint to the Superintendent of Police (SP) in writing and by post under Section 154(3). The SP can either investigate the case himself or direct an investigation to the subordinate police officer.
How can foreign nationals file a complaint to the Magistrate
- If Section 154(3) does not work, a complaint can be referred to a Magistrate in two ways. The complaint can be referred to the Magistrate under Section 156(3) along with an affidavit as observed in Priyanka Srivastava Anr vs. State Of U.P.& Ors (2015).
- In this case, the Magistrate can order a prima facie investigation and order the police officer to register an FIR and initiate an investigation. The Magistrate does not need to examine the witnesses on oath under Section 156(3) as held in Suresh Chand Jain vs State of Madhya Pradesh (2001).
- A complaint can also directly be filed to the Magistrate of the first class or the second class under Section 190 of CrPC. If the complaint has been filed with the competent Magistrate, he can order for a preliminary investigation and direct the police to initiate an investigation under Section 202.
- He can take cognizance under Section 192 and can investigate himself under Section 202 of CrPC. However, the Magistrate cannot direct an investigation and simultaneously inquire the case by himself as maintained in Sankar Chandra Ghose v. Roopraj (1981).
- Further, in the case where the Magistrate decides to inquire or investigate himself on the existence of sufficient grounds to proceed against the accused person, he has to examine the witness on oath under Section 202.
- After examining the witness, if the Magistrate is not satisfied that there are sufficient grounds to proceed against the accused, he can reject the complaint under Section 203 by recording brief reasons for the same. But if there are sufficient grounds, he can proceed under Section 204 to determine if the case is a warrant or a summon case.
- The CrPC does not specify which procedure is to be followed in any of the two and hence, under these circumstances, the proper procedure is to be followed by the Magistrate should be of the warrant cases as observed in Banta Singh S/O Shian Singh v. Gurbux Singh S/O Gurdit Singh (1966).
What happens when a Magistrate takes cognizance over a complaint
- If it is a summons’ case, the Magistrate may issue a summons for the appearance of the accused before him accompanied by a copy of the complaint.
- In summons’ case, the accused appears before the Magistrate, the particulars of the offence have to be stated to him, and he can either plead guilty or take defence, but the framing of charges is not necessary as per Section 251.
- If it is a warrant case, he may issue either warrant or summon for causing the accused to be brought or appear before him, accompanied with a copy of the complaint.
- Warrants are issued for more serious offences the punishment of which extends to life imprisonment or death as defined under Section 2(x) of CrPC. The rest are summons cases.
- Once the Magistrate has issued a warrant for the appearance of an accused before him, he shall then initiate a procedure of trial by first referring to the evidence of the prosecution under Section 244.
- Under Section 244, the Magistrate has to first proceed to hear the prosecution and take cognizance of all such evidence produced and led by the prosecution.
- If the evidence of the prosecution includes the testimonies of witnesses, the Magistrate can issue a summon to the respective witness directing him to attend or to produce a document concerning the case.
- After the evidence has been led, if the Magistrate is satisfied that there is no ground to proceed against the accused, he can discharge him under Section 245. Notably, the Magistrate can discharge him at any previous stage, for the reasons to be recorded, if the charges against him are groundless.
- But, in case, where Magistrate has sufficient grounds for presuming that the accused has committed an offence, proceed against him in accordance with the evidence led by the prosecution, he shall frame in writing a charge against him under Section 246.
- The charges shall be read and explained to the accused, and he shall be asked whether he pleads guilty or has not.
- If the accused pleads guilty, the Magistrate is required to record it, and he may convict him on his discretion.
- But where the accused does not plead guilty or refuses to plead, or claims to be tried, he can be asked to cross-examine, by the Magistrate, any of the evidence relied on by the prosecution including the witnesses.
- The witnesses can be cross-examined(by the defence) and re-examined (prosecution) subsequently on his request.
- Further, the accused shall be further called under Section 247 to lead his side of the evidence as per the procedure under Section 243. The same can be led in writing which shall be recorded by the Magistrate.
- The Magistrate is empowered to allow the accused to cross-examine witnesses or allow him to request for production of a document, provided that he is satisfied that the request is not made to defeat the ends of justice or to delay the process.
- Once all of this is done, the Magistrate has to either acquit the accused or convict him under Section 248.
- If the Magistrate acquits him, he shall record an order of acquittal. Where the Magistrate finds him guilty, he shall hear the accused on the question of sentence and pass the sentence upon him according to law.
The procedure for filing a complaint by a foreign national has been explained above in a simplified form. However, often, the reality seems to be far away from the theoretical aspect and a foreign national may face issues while trying to set the law in motion. In this aspect, it is important to understand that the law is in their favour and they will be given legitimate protection under it. And thus, they should trust the criminal justice system of India. But a person with dirty hands cannot use the criminal system to defeat the ends of justice or to secure himself a means to carry out his illegal activities.
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