Fatma Bibi Ahmed Patel Vs. State of Gujarat & ANR.  INSC 902
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising out of SLP
(Crl.) No.6004 of 2006) Fatma Bibi Ahmed Patel ... Appellant Versus State of
Gujarat & Anr. ...
S.B. 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 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.
3. Son of the appellant Hanif
Ahmed Patel was married to the complainant - respondent on 22.4.2002. Appellant
indisputably is a citizen 2 of Mauritius. Her son and daughter-in-law at all
material times were residing at Kuwait.
A Complaint Petition, however, was
filed before the Chief Judicial Magistrate, Navsari by the said respondent
alleging physical and mental torture by her husband (the first accused).
Allegations primarily against the appellant therein were that the first accused
used to consult her and she used to instigate him.
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 appellant by an order dated
An application was filed by her
stating that the complaint petition filed without obtaining the requisite
sanction under Section 188 of the Code of Criminal Procedure was bad in law.
The same was dismissed.
A joint application with her son
was thereafter filed by the appellant for quashing of the entire complaint
petition which was withdrawn.
Appellant, however, filed a fresh
application on or about 6.12.2004 raising a contention that as she is a citizen
of Mauritius and as the entire cause of action took place at Kuwait, the order
taking cognizance is bad in 3 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 aggrieved thereby which by reason of the impugned order has
4. Mr. Sudarshan Rajan, learned
counsel appearing on behalf of the appellant, submitted that having regard to
the 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].
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 as 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 4 Code. Provisions of the Indian Penal Code 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.- 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.
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."
Section 188 of the Code of
Criminal Procedure reads as under:
"Section 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, 5 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."
In our constitutional scheme, all
laws made by Parliament primarily are applicable only within the country.
Ordinarily, 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 limits. Parliament indisputably may enact a
legislation having extra territorial application but the same must be applied
subject 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 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 6 Indian Penal Code and Section 188 of
the Code of Criminal Procedure, the order taking cognizance must be held to be
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 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 a citizen
of India, whether 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 committed in Kuwait, the provisions of the Indian Penal
Code 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],
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 India being a citizen of India at that
moment, and 7 having committed offences outside India, and that the provisions
of Section 4 I.P.C. and Section 188, Cr. P.C.
were fully attracted to the case.
In our opinion, this contention is
not well founded. The 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 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.
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, I.P.C.
delimits the scope 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 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 commission of the murder the
provisions of Section 4, I.P.C. could not apply to his case. The circumstance
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 country
nor was he domiciled there."
8 Strong reliance has been placed
by the learned counsel 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. 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. I.P.C. or 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 I.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 illegal 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. Section 120-B of the
I.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 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 accomplished. It is immaterial whether this is found
in the 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 9 a conspiracy to do an unlawful act by unlawful
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.
Leathem 1901 AC 495 at 528 as
"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 intention only it is not indictable. When 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 means.
The court therein was concerned
with a charge of conspiracy. It was in the aforementioned context opined that
no sanction would be required.
R. M. Sahai, J. in his concurring
"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. 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 and others
in India. Whether it was so or not, cannot be gone into at this stage."
10 The learned counsel submitted
that as in the earlier application, the appellant merely complained of the
absence of any sanction, this application should not be entertained. We do not
agree. Principles analogous to res judicata have 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 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 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, the same by itself, in our opinion,
will not come in the way of the appellant 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 jurisdictional issue goes to the root of the matter,
would not allow injustice to be done to a 11 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 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
"If the argument holds good,
it will make the decision of 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
[See also Union of India v. Pramod
Gupta (D) 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.
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.B. Sinha] 12
[Lokeshwar Singh Panta] New Delhi;