Report No. 41

15.51. Criticism of su.-section (2).-

Su.-section (2) of section 185 is curiously ambivalent in its approach. The first High Court may only decide that the trial may proceed in the court subordinate to it. It cannot decide that the trial should not proceed in that court but in the court subordinate to another High Court. When one High Court decides that the trial should proceed within its appellate jurisdiction, the other proceedings have to be discontinued. The rationale of this cumbrous and dilatory provision in regard to a matter of urgent importance to the accused person is difficult to understand. We recommend that it should be made as clea.-cut and simple as the provision in su.-section (1).

15.52. Revision of section 185 recommended.-

The section should be consolidated and revised on the following lines.-

"185. Where two or more courts have taken cognizance of the same offence and the question arises as to which of them ought to inquire into or try that offence, the question shall be decided.-

(a) if the courts are subordinate to the same High Court, then by that High Court, and

(b) if the courts are not subordinate to the same High Court, then by the High Court within the local limits of whose Appellate criminal jurisdiction the proceedings were first commenced; and thereupon all other proceedings in respect of that offence shall be discontinued".

15.53. Not necessary to bring in the Supreme Court.-

In this connection we considered whether it would be desirable to vest in the Supreme Court the power now vesting in the High Courts under su.-section (2), in view of the fact that more than one High Court is concerned and the power to transfer cases from a court subordinate to one High Court to a court subordinate to another High Court is vested in the Supreme Court under section 527 of the Code. We, however, came to the conclusion that the question of proper forum is not of such difficulty or importance as to merit a direct reference to the Supreme Court under the law.

It can be adequately dealt with by the High Court within whose appellate jurisdiction the proceedings in respect of the offence were first commenced. Even in the extremely unlikely case of three courts in three different States taking cognizance of the same offence at about the same time, there is no reason why the first High Court should not be empowered by law to decide which of them should continue with the proceedings.

15.54. Section 186.-

Section 186 Confers on certain magistrates a power to initiate action against any person within their jurisdiction who is reasonably suspected to have committed an offence triable by a court outside that jurisdiction. Though the Magistrate does not take cognizance of the offence in the technical sense, he is empowered by the section to inquire into it as if it had been committed within his jurisdiction, compel the person to appear before him and bind him to appear before a Magistrate who will have jurisdiction to inquire into the offence. The power is available whether the offence is cognizable or no.-cognizable.

15.55. Amendment of su.-section (1) suggested.-

Since the proceedings under this section are of a judicial character, it is not necessary that District Magistrate and Su.-divisional Magistrates should have the power to take action. On the other hand, all Judicial Magistrates of the first class may be authorised to take action without being specially empowered by the State Government to do so. We recommend that the opening words of su.-section (1) may be revised to read, "When a Magistrate of the first class sees reason to believe" etc.

15.56. Section 1.- omission recommended.-

Section 187 prescribes the procedure to be followed after a person has been arrested on a warrant issued by a Su.-divisional Magistrate or Magistrate of the first class. The Magistrate is required to send the person to the District Magistrate or the Su.-divisional Magistrate to whom he is subordinate unless there is already a warrant for that person's arrest issued by the Magistrate having jurisdiction to try the offence. It is then provided in su.-section (2) that this procedure will not be necessary if the arrested person is to be sent under section 186 to the court of a competent Magistrate in the same district. We consider that all these controls and dilatory procedure are unnecessary and the provisions of section 186 (amended as proposed above) can be safely left to their operation. We recommend that section 187 should be omitted.

15.57. Section 18.-

Procedural counterpart of section 4, I.P.C.-The main provision in section 188 is that "when an offence is committed b.-

(a) any citizen of India in any place without and beyond India; or

(b) any person on any ship or aircraft registered in India wherever it may be, 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." This furnishes the necessary procedural counterpart to those substantive penal laws which have extr.-territorial application. Thus, under section 4 of the Indian Penal Code, the provisions of that code apply also to any offence committed b.-

(1) any citizen of India in any place without and beyond India; or

(2) any person on any ship or aircraft registered in India wherever it may be.

It is explained in the section itself that the word "offence" includes every act committed outside India which, if committed in India, would be punishable under the Penal Code. To make the position clearer still, section 3 provides that any person liable by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had bee.-done within India.

15.58. Extr.-territorial offence.-

The word "offence" is also define1 in the Criminal Procedure Code to mean any act or omission made punishable by any law for the time being in force. Though the words "in India" are not in the definition at the end, there can hardly be any doubt that they have to be understood; and when section 188 refers to the commission of an offence without and beyond India, the act done or omitted to be done in foreign territory or on the high seas constituting the offence has to be punishable as such by an Indian law. In other words, in order to attract this procedural provision the relative penal law must also have express extr.-territorial application on lines similar to section 4 of the Indian Penal Code.

1. See section 4(1)(o).

15.59. Anomalous position of Jammu and Kashmir.-

We have already noticed in Chapter I that by virtue of the definition of "India" in section 4(1)(j) of the Criminal Procedure Code, any place in the State of Jammu and Kashmir is a "place without and beyond India". The result is that if a citizen of India, whether he is a resident of that State or of some other State in India, commits an offence in Jammu, he may be dealt with at any place in any other State of India where he may be found, but before the charge is inquired into at the latter place, the sanction of the State Government will be required (there being no Political Agent for the State of Jammu and Kashmir).1

This is indeed an anomalous and unsatisfactory situation. Parliament's power to legislate for the State does not at present extend to items 1 and 2 of the Concurrent List, relating, respectively, to criminal law and criminal procedure. We have recommended above2 that the anomaly should be removed by first suitably amending the Constitution (Application to Jammu & Kashmir) Order, 1950, under Article 370 and then extending the two Codes to the State.

1. State v. Om Parkash, 1966 Cr LJ 366.

2. See para. 1.9 above.

15.60. Amendment of clause (a) to remove doubt.-

The use of the word "place" in clause (a) of section 188 may give rise to a doubt whether the section applies where a citizen of India commits an offence on the high seas, or while on board a foreign vessel, or in air space over foreign territory or the high seas while on board a foreign aircraft. The wording of the first proviso to the section also does not help resolve this doubt. It was decided in a Bombay case1 that the proviso does not apply to an offence committed on a ship on the high seas since there is no "territory", and no Political Agent for the "territory", in which the offence is committed. It is desirable to amend clause (a) as well as the first proviso so as to make it clear that the section applies when an offence is committed outside India by any citizen of India, whether on the high seas or elsewhere.2

1. Manuel Philip v. Emp., AIR 1917 Bom 280; See also Po Thaung v. Emp., (1911) 12 Cr 14 198.

2. Article 1 of the Convention on the Seas, 1958, defines the term "high seas" to mean all parts of the sea that are not included in the territorial sea or in the inland waters of a State.