Report No. 41

15.61. Amendment of main paragraph recommended.-

An offence falling within clause (b) of section 188 is extr.-territorial only when the Indian ship or aircraft is outside India including its territorial waters. To this extent, the expression "wherever it may be" is not precise. Clause (b) need not also refer to all persons on an Indian ship or aircraft since citizens of India are already covered by clause (a). The main paragraph of the section may be revised to read.-

"When an offence is committed outside Indi.-

(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; 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."

15.62. First Proviso.-

The first proviso to section 188 requires to be simplified and recast in view of the political changes that have taken place in the last 20 years. It was originally framed with the object of controlling the prosecution and trial in British India of persons accused of committing offences in the former Indian States. There were a number of Political Agents of the Government of India appointed regionally for groups of these States to look after the political relationship between the rulers and the paramount power.

When a British Indian subject was alleged to have committed an offence in an Indian State, the charge as to such offence could not be inquired into in a British Indian province unless the Political Agent for that State certified that it ought to be inquired into there. Where the offence was committed outside India altogether, the previous sanction of the Provincial Government was required under the proviso.

15.63. Non obstante clause.-

The non obstante clause which was inserted in the proviso by the Amendment Act of 1923 could also be traced to the same political considerations. The Select Committee, while reporting on this particular amendment, said.-

"Certain decisions of the Madras High Court seem to make it doubtful whether section 188 is subject to the provisions of sections 179 to 184 and we think it is desirable to clear this up. We are not satisfied that this was the intention of section 188, and in our opinion it is safer, when a man is tried in British India in respect of an offence committed in a Native State, to require the Political Agent's certificate in every case. The amendment which we propose will make this clear."

15.64. Sanction should be of Central Government.-

Since the section now applies mainly to offences committed by Indian citizens in foreign countries or by foreigners on Indian ships or aircraft, it would be appropriate to provide for the previous sanction of the Central Government, rather than that of the State Government. From the practical point of view the existing provision requiring a certificate from the Indian envoy in the foreign country appears to be unnecessary. It is also likely to lead to undue delay in initiating proceedings. It could be left to the Central Government to consult its envoy in the foreign country to such extent as it deems fit and proper.

15.65. Meaning of "charge as to" offence (Amendment of proviso recommended).-

The proviso refers to a "charge as to" the extr.-territorial offence being inquired into in India. This has led to a needless controversy as to the stage when the Political Agent's certificate or the State Government's sanction has to be obtained and produced before the court. While one view is that it is sufficient to do so some time before the charge is framed against the accused, some courts have held that it is a condition precedent to the inquiry by the court into the offence. This controversy will be avoided by providing "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."

15.66. Second proviso.-

The second proviso is obscurely worded. The intention is apparently to import the principle laid down in section 403 of the Code and make it applicable in relation to further proceedings under the Extradition Act in a foreign country for the same offence. If the proceedings taken against a person under section 188 for an extr.-territorial offence have resulted in a trial of that person by a court of competent jurisdiction in India and upon such trial the person is convicted or acquitted or discharged of the offence, section 403 will be directly applicable and will debar his trial in India once again for the same extr.-territorial offence. This being so, it is difficult to give meaning to the periphrasis "bar to subsequent proceedings against such person for the same offence if it had been committed in India". Section 403 applies equally to an offence committed in India and to an offence committed outside India.

15.67. Provision should be made in the Extradition Act, 1962.-

We think that in so far as any such provision is required in the statute book, it should find a place in the Extradition Act, 1962, rather than in the Code. What is required in that Act is a provision to the effect tha.-

(a) while proceedings under section 188 of the Code are pending against any person in respect of any offence, no proceedings for extraditing him from India shall be taken in respect of the same offence either in India or outside India; and

(b) if in such proceedings, the person is convicted, acquitted or discharged of the offence by a competent court, no extradition proceedings shall be taken against him in respect of the same offence either in India or outside India.

We recommend that the second proviso to section 188 should be omitted.

15.68. Suggestion to extend section 188 to corporations.-

We considered a suggestion that section 188 should be made applicable to Indian companies and corporations in the same way as it applies to Indian citizens. This would, in our opinion, be a case of putting the cart before the horse. It is only when a substantive penal law applies also to Indian companies in respect of offending acts committed by them outside India that a corresponding provision on the lines of section 188 will be required. The Indian Penal Code, for instance, does not envisage the commission of offences by Indian companies outside India.

If in the case of some special law e.g., the Foreign Exchange (Regulation) Act, 1947, it is felt that Indian companies contravening its provisions outside India should be liable to be tried in India, it would be as easy, as it would be appropriate, to make a special provision in that law itself. As a general provision, section 188 does not, in our opinion, require extension to corporate bodies.

15.69. Is previous trial in foreign country bar to proceedings under section 188.-

The question may arise whether an Indian citizen who has been tried by a court of competent jurisdiction in a foreign country for an offence can be proceeded against for the same offence when he is found in India, assuming of course that the act committed by him is an offence punishable under an Indian law having extr.-territorial application.

Section 403 of the Code will not in terms apply to such a case and it is a moot point whether Article 20(2) of the Constitution (which lays down that "no person shall be prosecuted and punished for the same offence more than once") will of itself operate as a bar to the proceedings under section 188. Since, however, the Government before giving its sanction is bound to take into account this fact and all the circumstances of the trial in the foreign court, we do not consider it necessary to suggest any change in the section from this point of view.

15.70. Section 188 as revised.-

In the light of the above discussion section 188 may be revised to read.-

"188. Offence committed outside India.- When an offence is committed outside Indi.-

(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; 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."