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TMI Blog2004 (11) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... whom, under Section 188, does the responsibility to find the accused lies the complainant, the Police or the Court? The question has arisen under the following circumstances : Respondent No.2, a Dubai based bank, has filed a complaint against the petitioner and another in the Court of Special Judicial Magistrate (CBI) under Sections 415, 417, 418 and 420 read with Section 120-B IPC. It has been, inter alia, alleged in the complaint that the petitioner obtained loans, executed various documents in proof of his ability to discharge the bank liability and gave his personal guarantee. But instead of discharging the liability, the accused absconded without liquidating his liability to the bank. The accused cheated and defrauded the bank in obtaining loan facilities knowing fully well that he had no intention to pay it back and fled from UAE. The Magistrate took cognizance of the offence and issued processes against the person arraigned in the complaint and also issued non-bailable warrants. The petitioner sought quashing of the complaint case by filing a petition under Section 482 of the Code before the High Court and also challenged the order of the Magistrate dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the place where the offender is likely to be found will have jurisdiction and not any court which the complainant may choose. The likelihood of the availability of the offender is implicit in the expression used in Section 188 of the Code, is the submission, otherwise it would mean that the complaint may be filed in any part of India, which could never have been the intention of the law. The argument looks very attractive at the first blush but that is all since its deeper consideration shows that it has no substance. Representing the complainant bank, respondent No.2, Mr. Vinod A. Bobde, learned Senior Counsel, submits that unlike civil proceedings the residence of the offender as a concept of part of cause of action has no relevance in construing the provisions of the Code, particularly, Section 188. Learned counsel submits that the scheme of Chapter XIII clearly shows that the expression 'at which he may be found' in Section 188 only means the place where the accused may either appear voluntarily or may be brought by the Police in execution of the warrants of arrest since the responsibility to find the accused, within the meaning of Section 188, is only of the court and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be construed. The same expression was also there in the old Code. From the scheme of Chapter XIII of the Code, it is clear that neither the place of business or place of residence of the petitioner and for that matter of even the complainant is of any relevance. The relevant factor is the place of commission of offence. By legal fiction, Section 188 which deals with offence committed outside India, makes the place at which the offender may be found, to be a place of commission of offence. Section 188 proceeds on the basis that a fugitive from justice may be found anywhere in India. The finding of the accused has to be by the court where accused appears. From the plain and clear language of the section, it is evident that the finding of the accused cannot be by the complainant or the Police. Further, It is not expected that a victim of an offence which was committed outside India should come to India and first try to ascertain where the accused is or may be and then approach that court. The convenience of such a victim is of importance. That has been kept in view by Section 188 of the Code. A victim may come to India and approach any court convenient to him and file complaint in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s v. Maganlal [ILR Bom Series (Vol.6) 622], decided in the year 1882 interpreting the word 'found', it was opined that it was used to confer the jurisdiction to the court of a place where the accused is actually found, i.e., produced before the Court and not where a person is discovered. In other words, it would mean that an accused may be discovered by the Police at a place not within the jurisdiction of the Court enquiring or trying but that is not the place contemplated by Section 188. For the purpose of jurisdiction, it would be the court where he is actually produced or appears which can said to have found him. As earlier stated, the finding of the accused is to be by the Court inquiring or trying and not by the Police. The aforesaid decisions were referred to and relied upon in Emperor v. Vinayak Damodar Sarvarkar [1910 (35) ILR 223]. The contention that the accused is charged before a Magistrate with an offence under the Penal Code and was brought there illegally from a foreign country was rejected. An illustration was given in that a man commits a crime, say murder, in a country but he escapes to some other country before he is apprehended, the Police fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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