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TMI Blog2018 (3) TMI 2049X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or acquittal remains in force. Not only that, he cannot also be tried on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof. The provisions of IPC would also apply to any offence committed by any citizen of India in any place without and beyond India. It would also apply to any offence committed by any person on any ship or aircraft registered in India wherever it may be. It would also apply to any offence committed by any person in any place without and beyond India committing offence targeting a computer resource located in India. The Explanation (a) thereof provides that the word offence includes every act committed outside India which, if committed in India, would be punishable under the Code. Conclusion - Foreign convictions can be noticed by Indian courts and authorities. The judgment and order of conviction of a foreign Court for the offence committed in India can be noticed/looked into and recognized by judicial and quasi judicial authorities in India, while exercising their judicial and quasi ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction by a foreign court for the offence committed in that country cannot even be looked into or no notice be taken of by the Indian Courts. Learned Senior Counsel submitted that, the view taken by the erstwhile Nagpur High Court in the case of Govind Kesheo Powar v. State of Madhya Pradesh and others 1955 Cri. L.J. 1275 : AIR 1955 Nag 236, lays down the correct position of law. He submitted that, the view taken by the Nagpur High Court is in tune with the view taken by the House of Lords in Huntington v. Attrill 1893 House of Lords 150, Kings Bench Division in Banco De Vizcaya v. Don Alphonso De Borbon [1935] K.B. 140, Queens Bench in United States of America v. Inkley 1989 1 Q.B. 255, Kings Bench in Raulin v. Fischer 2 Kings Bench 1911 page 93, Chancery Division in Frankfurther v. W.L. Exner Limited 1947 1 Chancery Division 629, Ogden v. Folliott 3 TR 725, Wolff v. Oxholm 6 M S 91 and Lynch v. The Provisional Government of Paraguay. The learned Senior Counsel also relied on the Judgment of Division Bench of the Calcutta High Court in Union of India and others v. Susanta Kumar Mukharjee 1977 II L.L.J. 460. The learned Senior Counsel further submits that, it has been consistently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... looked into by the Courts in India. The learned Counsel submits that, the view taken by a Division Bench of this Court in the case of Avinashkumar Bhasin v. Air India, Bombay 2001(3) Mh.L.J. 673, lays down the correct position of law and as such, the question needs to be answered that, though the judgment and order of conviction by the foreign Court for offence committed in that country may or may not be binding on the Courts in India, the same can be very well looked into or recognized while exercising judicial and quasi judicial powers by the Courts and authorities in India. 9. Perusal of the Order dated 5/11/2014 passed by the learned Single Judge, would reveal that the learned Single Judge has found that, there is a conflict between the view taken by a Division Bench of Nagpur High Court in the case of Govind Kesheo Powar (cited supra) and in the case of Avinashkumar Bhasin (cited supra). The learned Single Judge found that, in order to resolve the conflict between the aforesaid two judgments, it will be necessary that the question is decided by the Full Bench. 10. We have some reservations as to whether the judgment of Nagpur High Court, whose successor is now Madhya Pradesh H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnized a principle that Courts of no country execute penal laws of another. However, in the said case, after considering the factual and legal position, their Lordships ultimately came to the conclusion that, an action on behalf of Government of New York is not in the sense, penal or in other words, for punishment of an offence against municipal law. 13. The King's Division Bench in the case of Banco De Vizcaya (cited supra) observed thus : ....... But in the present case the penalty imposed is seizure by the State for its own benefit of all the defendant's properties, rights, and grounds of action, and this penalty is imposed in terms for high treason, and the only way in which the plaintiffs are able to assert their claim that they are entitled as against the defendant is by virtue of these decrees, and they are compelled to admit that they have no personal right or title to the property in the securities. In the words of Lord Loughborough in Folliott v. Ogden (2) : The penal laws of foreign countries are strictly local, and affect nothing more than they can reach and can be seized by virtue of their authority; a fugitive who passes hither, comes with all his transitory r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was possible, the presence of the executor of the bond to meet justice at the hands of the state in a criminal prosecution. The fact that the obligations under the bond were the subject matter of a declaratory judgment in a civil court does not affect, in our judgment, the basic characteristic of the right which that judgment itself enforced, namely the right of the state as the administrator of public law and justice to ensure the due observance of the criminal law or the exaction of pecuniary penalties if that course was frustrated. Notwithstanding its civil clothing, the purpose of the action initiated by the writ issued in this case was the due execution by the United States of America of a public law process aimed to ensure the attendance of persons accused of crime before the criminal courts. 15. Again, their Lordships of the King's Bench Division in the case of Raulin v. Fischer 2 Kings Bench 1911 page 93 have held that, where an offender has been convicted and also saddled with damages for the injury may be awarded by the same judgment and in such a case the judgment is severable and that the portion of it awarding damages to the injured person is not within the rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the Courts and authorities in India, while exercising their judicial and quasi judicial powers, should not at all even notice or take into consideration at all the penal decrees of a foreign Court for the offence committed in that country, even if they find the same to be relevant for deciding the question before them. 20. A Division Bench of this Court in Avinashkumar Bhasin (cited supra) has held that, such a conviction by a Court of one country can be taken notice of in another country for any purpose whatsoever. 21. Though directly not in issue, we may seek some guidance from the following observations of their Lordships of the Apex Court in the case of Brace Transport Corporation of Monrovia, Bermuda v. Orient Middle East Lines Ltd., Saudi Arabia and others 1995 SUPP (2) SC,. 280 pertaining to foreign arbitration award. In the said judgment, their Lordships observed thus: 13. Before we deal with the facts of the case before us, a statement of some broad principle is necessary. The New York Convention speaks of recognition and enforcement of an award. An award may be recognised, without being enforced; but if it is enforced, then it is necessarily recognised. Recognition al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, by way of political protest, did not allow the export of jute bags directly to South Africa. However, in view of shortage of bags in South Africa, it was willing to buy any number of jute bags at high prices. As such, an agreement was made between plaintiff and defendant that in order to circumvent the sanctions by the Indian Government, the goods would be shipped from India by the defendant and made available in Genoa, so that plaintiff might make a resale or fulfil a bargain of sale to the South African buying agency. However, defendant informed the plaintiff that the jute bags would be delivered at Hamburg, but the plaintiff insisted on shipment to be made to Genoa and in the result, the goods were not delivered. The plaintiff sued the defendant for damages. While dismissing the claim, Denning, L. J. observes thus: Now, what is the law upon this matter? I quite agree that on looking at the terms of this contract by itself, there is nothing that necessitates or requires either party to do an act which is illegal by the law of any country. It is possible that the contract might lawfully have been fulfilled, for example, by Sathia Ltd. getting the goods from somewhere else oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the laws of another. His Lordship further goes on to hold that, the court is not to be hoodwinked by subterfuges of that kind. Once it appears that, in order to implement the transaction, one of the parties to the knowledge of the other, intends to break or to assist in breaking the laws of a friendly country or to get someone else to do it, then it will not be enforced. It will further be relevant to refer to the following observations of His Lordship, which read thus : Mr. Lawson urged us to hold that this legislation by the Government of India was an act of retaliation directed against South Africa, an economic sanction imposed because of the racial policy of South Africa, a political law of which, he says, the courts should take no notice. He referred us to the observations of Lord Mansfield in Holman v. Johnson, where he says, Ibid. 343 no country every takes notice of the revenue laws of another. Mr. Lawson says that has been applied to penal laws, and should extend also to political laws. It seems to me that Lord Mansfield goes too far when he says that these courts will take no notice of such laws. It is perfectly true that the courts of this country will not enforce the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce such laws. It will also be relevant to refer to the observations of Parker L.J in the said case:- It is true, as Denning L.J. has said, that Lord Mansfield in Holman v. Johnson 1 Cowp. 341, 343 used very wide words indeed, and that his statement has been referred to with approval by the House of Lords in the recent case of Government of India v. Taylor [1955] A.C. 491; but it is equally clear that the wording of Lord Mansfield in certain respects, at any rate, is, taken literally, too wide. That was recognized in the House of Lords case and indeed was recognized by Lord Tomlin, then Tomlin J., in re Visser, Queen of Holland v. Drukker, [1928] ch.877; 44 T.L.R. 692 and more recently in the Irish case, Peter Buchanan Ltd. Macharg v. McVey [1955] A.C. 516n., 523. There Kingsmill Moore J., having made an exhaustive analysis of the cases and referred to Foster v. Driscoll [1929] K.B. 470 says this: I doubt whether Lord Mansfield intended his remarks to preclude a court from informing itself as to the provisions of a foreign revenue law in order to determine the question whether a foreign transaction was or was not fraudulent and void according to the law of that country. For my part, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinue to be a German National in view of Article 116(2) of the Basic Law of the Federal German Republic, 1949, Lord Salmon observes thus: The principle normally applied by our courts in relation to foreign penal or confiscatory legislation was correctly stated by Goulding J.: see [1972] Ch.585, 592. The comity of nations normally requires our courts to recognise the jurisdiction of a foreign state over all its own nationals and all assets situated within its own territories. Ordinarily, if our courts were to refuse to recognise legislation by a sovereign state relating to assets situated within its own territories or to the status of its own nationals on the ground that the legislation was utterly immoral and unjust, this could obviously embarrass the Crown in its relations with a sovereign state whose independence it recognised and with whom it had an hoped to maintain normal friendly relations. It could thus be seen that, their Lordships held that, if the English Courts were to refuse to recognize legislation by a sovereign state relating to assets situated within its own territories or to the status of its own nationals on the ground that the legislation was utterly immoral and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies with which the United Kingdom has friendly relations, cannot only be looked into but on the principle of comity are required to be given due recognition. 28. We find that, if the argument, as advanced by Shri Dada is to be accepted, and if we are inclined to hold that the judgment and order of conviction as recorded by a foreign Court, for the offence committed in the foreign country cannot even be looked into, it may have even an effect of depriving an Indian citizen of the fundamental right available to him under Article 20(2) of the Constitution and to any person under Section 300 of the Code of Criminal Procedure Code. 29. It will be relevant to refer to Article 20 of the Constitution of India, which reads thus: 20. Protection in respect of conviction for offences.- (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace without and beyond India committing offence targeting a computer resource located in India.] [Explanation.- In this section- (a) the word offence includes every act committed outside India which, if committed in India, would be punishable under this Code; (b) the expression computer resource shall have the meaning assigned to it in clause (k) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000).] It could thus be seen that, the provisions of IPC would also apply to any offence committed by any citizen of India in any place without and beyond India. It would also apply to any offence committed by any person on any ship or aircraft registered in India wherever it may be. It would also apply to any offence committed by any person in any place without and beyond India committing offence targeting a computer resource located in India. The Explanation (a) thereof provides that the word offence includes every act committed outside India which, if committed in India, would be punishable under the Code. 32. To give an illustration, if an Indian citizen commits murder in United Kingdom, in view of provisions of Section 4 of the I.P.C., he would be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viction recorded for the appellant under Section 846 read with Section 841 of Title 21 USC (Controlled Substances Act). Upon comparison of charges for which the Appellant was charged with, in India for the offence punishable under Sections 29, 8(c), 12, 20(b)(ii) (C), 23 and 24 of the Narcotic Drugs and Psychotropic Substances Act (For short NDPS Act ), with the offences for which the Appellant was tried and convicted in the United States, their Lordships observed thus :- 41. In our view, the offence for which the appellant was convicted in the USA is quite distinct and separate from the offence for which he is being tried in India. As was pointed out by Mr. Naphade, the offence for which the appellant was tried in USA was in respect of a charge of conspiracy to possess a controlled substance with the intention of distributing the same, whereas the appellant is being tried in India for offences relating to the importation of the contraband article from Nepal into India and exporting the same for sale in the USA. 42. While the first part of the charges would attract the provisions of Section 846 read with Section 841 of Title 21 USC (Controlled Substances Act), the latter part, bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nforce a penal decree of foreign nation, they are not precluded from taking into consideration the foreign penal laws. Not only that, it is their consistent view that, in order to avoid breach of comity, such penal laws should be given due recognition by English Courts also. 38. We have already referred to the observations of the Apex Court in Brace Transport Corporation of Monrovia (supra), wherein their Lordships state that there is a distinction between enforcement and recognition. 39. Insofar as judgment of the Nagpur High Court in the case of Govind Kesheo Powar (cited supra) is concerned, the only ratio as could be found in the said judgment is thus :- 18. From what we have quoted, it will be abundantly clear that the effect of a crime committed by a person does not travel beyond the State in which it was committed. Since that is the general principle, it must be presumed that the Legislature when it enacted Section 10(m) of the C.P and Berar Local Government Act did not intend to include therein offences committed by the citizens of Madhya Pradesh in foreign territories..... What is ratio decidendi has been succinctly described by their Lordships of the Apex Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a foreign Court for an offence committed in that country, is binding on the Courts and authorities in India while exercising their judicial and quasi judicial powers, it will amount to directly or indirectly enforcing the judgment of the foreign Court. What is the effect of such order of conviction, would depend upon variety of factors such as, nature of the proceedings, purpose for which the said order of conviction needs to be taken into consideration, nature of conviction and effect thereof on the proceedings, nature of consequences of the ultimate decision to be taken in the said proceedings, are some of the factors which will have to be taken into consideration while deciding as to how much and what weightage has to be given to such judgment and order of conviction. We are of the considered view that, no hard and fast rule can be laid for that purpose. The Courts and authorities, while exercising their judicial and quasi judicial powers will have to take a call on the facts and circumstances of each case and take a decision as to what is the effect of such judgment and order of conviction. The question No. (1)(b) is answered accordingly. 43. Before we part, we must place on r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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