This article has been written by Mudit Gupta, currently pursuing a BBA. LL.B. (Hons.) from the University of Mumbai Law Academy. This article discusses all aspects of Section 188 of the Code of Criminal Procedure, its relation with extradition laws, as well as jurisdictional questions in cases of offences committed by the NRIs.

It has been published by Rachit Garg.

Introduction

A Bench of Calcutta High Court in the case of Hriday Nath Roy v. Ram Chandra (1921), gave an apt definition of jurisdiction-

the power to enquire into the facts, to apply the law, to pronounce the judgement and to carry it into execution

Whenever a crime happens and it moves to the stage of the trial, the first question that needs to be answered is which court will have jurisdiction over the concerned matter. Without having an answer to this question, no legal remedy can be availed of, as the trial cannot begin. To answer this question and to perfectly apply the law of the land where the suit related to the criminal offence should be tried, Chapter-XIII was added to the Code of Criminal Procedure, 1973, in the original draft.

Before the trial commences, the court’s jurisdiction must be clarified so that the accused is not tried for the same offence twice. The provisions provided under Section 188 and Section 189 are two provisions that clarify this doubt about extra-territorial jurisdiction.

In this article, all the provisions of the Code of Criminal Procedure, 1983 related to trial and inquiry where extra-territorial jurisdiction is involved are discussed along with the viewpoint of the English judiciary, the jurisdiction of the International Criminal Court and relevance in subject to an extradition treaty in detail.

Chapter-XIII of the Criminal Procedure Code

The jurisdiction of the criminal courts in inquiry as well as the trial is dealt with by Chapter-XIII of the Code of Criminal Procedure, 1973. It clearly specifies the ground rules regarding the jurisdiction through which a Court can take cognizance of a particular criminal incident.

Most of the provisions of the Chapter talk about matters which are concerned with activities only involving Indian jurisdiction but Section 188 and Section 189 specifically lays down the provisions where foreign intervention is involved one way or the other. Whether the intervention is regarding the trial or the evidence which are needed to be presented before the Court of law, these two provisions of law come in handy for the disposal of the case. 

In this article, we will talk about these provisions and other related topics in detail. The main reason behind these two provisions was the doctrine of double jeopardy. This doctrine provides a legal defence to an accused and protects him/her from being tried again and again for the same accusations and facts after a lawful acquittal or conviction. This doctrine does not apply in the case of appeals. 

What does Section 188 talk about 

Now let’s see what the details of the proviso given in the Code of Criminal procedure, 1973 in relation with the criminal offences committed outside India i.e., Section 188 

Section 188 provides for the trial and inquiry when an extra-territorial jurisdiction comes into play. The language of the provision says that-

When an offence is committed outside India—

  1. by a citizen of India, whether on the high seas or elsewhere; or 
  2. by a person, not being such a 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.

In addition to this, one more point is also added to this provision that is, notwithstanding anything in any of the preceding sections of this Chapter which is Chapter-XIII, no such offence shall be inquired into or tried in India except with the prior sanction of the Central Government. This means that if any criminal offence is committed outside the territorial jurisdiction of India, by a citizen of India, then in that case, the trial and inquiry for the same offence will be conducted within the jurisdiction of India. Also, if someone who is not an Indian citizen commits a criminal offence on any ship or aircraft that is registered in India, then also the case will be tried by the courts situated in India as per the laws of the country.

The only condition in both of these cases is that for such a trial and inquiry, a sanction is required from the side of the Central Government. Without such sanction, a trial or inquiry cannot proceed.

What does Section 189 talk about

Now let’s talk about Section 189 of the legislation. This provision gives power to the Central Government regarding the receipt of evidence for criminal offences that are committed outside the territory of India. This provision extends the power to inquire about an offence as per Section 188 of the Code. As per the language of this Section in the Code-

The Central Government may, if it thinks fit, direct that copies of depositions made or exhibits produced before a judicial officer in or for that territory or before a diplomatic or consular representative of India in or for that territory shall be received as evidence by the court holding such an inquiry or trial in any case in which such a court might issue a commission for taking evidence as to the matters to which such depositions or exhibits relate. 

Relevance of these provisions in case of NRIs

Before knowing about the relevance and applicability of these provisions to NRIs, let’s first understand who is an NRI. The Income Tax Act, 1961, provides the criteria for an individual to be considered or not considered an Indian resident. The status of a person on the basis of residency or non-residency depends on the period of his/her stay in India. The period of stay is to be counted in the number of days for each financial year that shall commence from 1st April to 31st March. An individual shall be considered an Indian resident if the individual satisfies the conditions laid out in Section 6 of the Income Tax Act:

  1. The individual has been in India for a period of 182 days for the previous year.
  2. The individual has been in India for a period of total 365 days for a total of four years preceding the year in India and for a period of 60 days or more in that particular year when in India.

Any person who does not fulfil the conditions mentioned above is treated or considered as  an NRI in that previous year.

Now let’s understand the relevance and applicability of these provisions to NRIs. The term “non-residents of India” itself defines that they are not residents in the territorial jurisdiction of the country, but it does not deny them the right to be citizens of the country. As they are not residing in India but are holding Indian citizenship, any criminal offence committed by them will be put on investigation and trial as per the laws of India and in the courts situated in the territory of India. But as it is mentioned in the Provision, sanction from the Central Government is the only requirement to start the trial for any such offences they committed outside India’s territorial jurisdiction. The sanction of the Central Government of India shall be required when a criminal action is to be initiated at the trial stage and not before. Hence, the trial cannot proceed beyond the stage of cognizance without the approval of the Central Government.

English judiciary viewpoint regarding extra-territorial jurisdiction

In Reg. v. Benito Lopez (1858), the Court while dealing with the question of the jurisdiction where foreigners are travelling in England-borne ships on the high seas, interpreted the word ’found’ as a finding of the offenders in provision under consideration in this case, 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 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 been committed within such limits: provided that nothing contained in this section shall be construed to alter or interfere with the Act 12 & 13 Vict. C. 96.”

The Court also pointed out that the word “found” is used in its widest sense and was inserted into the legislation with an intent to include all cases by giving jurisdiction to any Court in whose local jurisdiction the person was found at the time of trial. The objective of this provision was to resolve any issue related to local jurisdiction. Lord Campbell, Chief Justice, opined that “if the prisoner was brought within the jurisdiction of the court against his will, then in that case,  the same cannot be said to have been found there as per the interpretation of the Act.” He also held that the meaning of the expression “he may be found,” as per the interpretation of the Act, is related to any place where he is actually present but not to where he/she was brought against his/her will.

Jurisdiction of International Criminal Court

The preamble of the Rome Statute gives the duty to every State to exercise jurisdiction over any and every criminal offence committed within its jurisdiction. But when two States claim to exercise their jurisdiction over a particular offence, the Rome Statute of the International Criminal Court attributes the main role to the national status of the accused. It provides that unless the situation in which the crime was committed gets referred to the Court by the Security Council as per the provisions of Chapter VII of the United Nations Charter, the Court may exercise its jurisdiction in two cases-

  1. If the countries which are party to the conflict are parties to the Statute; or
  2. Have accepted the jurisdiction of the Court.

These are the conditions that give the International Criminal Court the authority to proceed with the trial and investigation of a particular case.

Extradition treaty 

Now let’s talk about the role of these provisions in the context of extradition treaties. To understand completely, let’s first understand what extradition actually is. In simple terms, extradition is a process by which one jurisdiction hands over a person to another jurisdiction, where he/she (the fugitive offender) is charged with criminal offences as per the laws that are applicable in that jurisdiction. 

In India, the extradition of a fugitive is governed by the Extradition Act, 1962. The applicability of the extradition laws is completely dependent on the treaties and agreements signed by India with other countries.

As given in the provision of Section 188 of the Code of Criminal Procedure, 1973, the Central Government sanction is necessary to proceed with the trial. The Central Government may refuse to extradite an offender if he/she has already been tried in the courts of the Indian jurisdiction for an offence and is wanted for a trial of the same offence in a foreign country. The government may also refuse the trial of an accused in the Indian criminal courts who has already been tried in a foreign country for a particular offence. The reason behind this approach by the Central Government is the doctrine of “double jeopardy”, as it will defeat the very purpose of fair and equitable justice. 

In these cases, the diplomatic relations of the involved countries play a vital role in decisions regarding other aspects of the trial and inquiry of the offence.

Major judgements

Sanoop v. State of Kerala (2018)

This is one of the first cases in India in which the ambit of inquiry with reference to Section 188 of the Criminal Procedure Code was discussed. In this case, the Court dealt with a matter where the crime allegedly occurred in Dubai. The Court in this case held that the arrest and detention of an accused in such cases where the offence has been committed outside India is not legally permissible unless the sanction of the Central Government is granted. 

The Court, in this case, broadened the interpretation of the word “inquiry.” The Court, while explaining the interpretation as per the proviso of Section 188 of the Code of Civil procedure, 1908, said that stages of arrest and detention will also need sanction from the Central Government

Nerella Chiranjeevi Arun Kumar v. State of Andhra Pradesh (2021)

In this case, the bench of the Supreme Court held that, as per the provision of Section 188 of the Code of Criminal Procedure, 1973, the trial of a criminal case against an Indian citizen for the crimes committed by him/her and having their place of action outside of India, cannot begin without the approval of the Central Government. At the time of cognizance, however, such prior sanction is not required. It is required only for the stages after the court has taken cognizance of the offence.

The reasoning for the same was-

  1. The investigation is the first stage that determines the relevance of the subsequent stages of the trial as in criminal offences evidence plays a vital role and they might not be available if the investigation is delayed.
  2. These provisions remove the unnecessary burden from the shoulders of the Central Government, which might not have been the case if the Central Government had to make decisions regarding the sanctions even for the investigation of criminal offences.

Sartaj Khan v. State of Uttarakhand (2022)

In this case, the Supreme Court held that the sanction of the Central Government under Section 188 of the Code of Criminal Procedure, 1973, for the trial of an offence committed outside India, is only necessary when the entire offence was committed outside India. If some parts of the offence were committed within the territorial jurisdiction of India and other parts were committed outside India, then in that case, no sanction is required at any stage for the trial and inquiry of such offence.

Relevance of this provision with a recent case

On 29th May of this year, a renowned politician and singer in Punjab, Siddhu Moosewala was killed by the Lawrence Bishnoi gang (as per the accusations). As Lawrence Bishnoi himself is currently in Tihar Jail, one other member of the gang, Goldy Brar, allegedly planned the murder of Siddhu Moosewala while sitting in Canada. Now he has been arrested in the USA as he ran away from Canada to the USA. As India and the USA have an extradition treaty, he will soon be brought to India as he is a wanted criminal in Indian jurisdiction and will be tried for the murder of Siddhu Moosewala because the criminal activity has been done on the jurisdictional land of India. As per Section 188 of the Code of Criminal Procedure, 1973, he will be tried in Indian Courts as the jurisdiction, in this case, will fall in India.

Conclusion

A jurisdictional issue in itself can play a pivotal role in deciding the fate of a particular matter. This is the first and foremost question, which needs an answer even before the institution of the suit. Thus, complete clarity about the jurisdiction and prevailing laws is essential when a case goes into the trial stage. This article is an attempt to gather and synthesise most of the information that relates to the issue of trial and investigation in cases where extraterritorial jurisdictions are involved, for which the provisions are given under Section 188 and Section 189 of the Code of Criminal Procedure, 1973. 

Frequently Asked Questions (FAQs)

  1. Can there be more than two jurisdictions involved in a particular case?

Yes, there can be more than two jurisdictions involved in a particular case.

  1. How many countries have an extradition treaty with India?

India currently has an extradition agreement with 48 countries.

References

  1. https://www.jstor.org/stable/43949879?read-now=1#page_scan_tab_contents
  2. https://www.jstor.org/stable/2668495?read-now=1#page_scan_tab_contents
  3. https://www.jstor.org/stable/45148581?read-now=1#page_scan_tab_contents
  4. https://www.jstor.org/stable/758867?read-now=1&seq=1#page_scan_tab_contents
  5. https://www.barandbench.com/news/litigation/sanction-under-section-188-crpc-necessary-only-if-entire-offence-is-committed-outside-india-supreme-court
  6. https://www.scconline.com/blog/post/2021/06/02/principles-with-respect-to-sanction-at-various-stages-when-offence-is-alleged-to-be-committed-beyond-the-jurisdiction-of-indian-territory-a-critical-appraisal-of-proviso-to-section-188-crpc/
  7. https://www.mondaq.com/crime/963584/criminal-action-against-nri39s-in-republic-of-india
  8. https://www.livelaw.in/top-stories/supreme-court-section-188-crpc-part-offence-sanction-sartaj-khan-vs-state-of-uttarakhand-2022-livelaw-sc-321-195098?infinitescroll=1
  9. https://main.sci.gov.in/jonew/judis/26607.pdf

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