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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 ..... has been re-framed as thus: (1) Whether conviction of an Indian by a foreign Court for the offence committed in that country can be taken notice of by the Courts or authorities in India and as to whether such conviction would be binding on Courts and authorities in India while exercising judicial and quasi judicial powers? 3. Since we are called upon to only answer the question, reference to the factual matrix would not be necessary. 4. We have heard Shri Dada, learned Senior Counsel appearing on behalf of the Appellant in the First Appeal and Shri Ponda, learned Counsel appearing on behalf of the Respondent. Though lengthy and elaborate arguments have been advanced by both Shri Dada and Shri Ponda, we will only deal with such of the arguments that are necessary for answering the reference. 5. Shri Dada submitted that, the judgment and order of conviction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al in the case of Euro-Diam Ltd. v. Bathurst [1990] 1 Q.B. 1. 7. Shri Ponda, the learned Counsel for the Respondent, relying on the Judgment of the learned Single Judge of the Calcutta High Court in the case of Indian and General Investment Trust Ltd. v. Sri Ramchandra Mardaraja Deo, Raja of Khalikote AIR 1952 Cal 508, submits that the Indian Courts are not bound to follow the rules of private international law, as are laid down by the English Courts. He submits that, Indian Courts are free to evolve their own rules of private international law and follow the same. 8. Shri Ponda, relying on the judgment of the Apex Court in the case of State (NCT of Delhi) v. Brijesh Singh and Ors. MANU/SC/1273/2017, submits that the principle that "crime is local" cannot be stretched to such an extent that the judgment and order of conviction by foreign Court even cannot be 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 convict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts foundation in the well recognised principle that crimes, including in that term all breaches of public law punishable by pecuniary mulct or otherwise, at the instance of the State Government, or of someone representing the public, are local in this sense, that they are only cognizable and punishable in the country where they were committed. Accordingly, no proceeding, even in the shape of a civil suit, which has for its object the enforcement by the State whether directly or indirectly, of punishment imposed for such breaches by the lex fori, ought to be admitted in the Courts of any other country." It could be seen from the aforesaid observations that, the Privy Council in the said case reiterated the well recognized principle that crimes are local and therefore they are only cognizable and punishable in the country where they are committed. Their Lordships further recognized 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 punishme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinued to stay there. In 1986 the United States, having obtained final judgment in their domestic courts against the defendant in the amount of the bond plus interest, issued a High Court writ to enforce the judgment against the defendant in the United Kingdom. In this background, it was observed thus : "Applying the above criteria to the facts of this case we have come firmly to the conclusion that the general context and background against which the appearance bond was executed was criminal or penal. The power to require the execution of the bond arose from section 3146 et seq. of the United States Code Annotated for Crimes and Criminal Procedure. The circumstances in which it came into existence were clearly criminal in nature and breaches of the conditions incorporated in it could give rise to further criminal process. Finally, the whole purpose of the bond was to ensure, so far as 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed directly or indirectly through British Courts, the same would not be permissible. It is on a principle that, Courts of no country execute penal laws of another. 18. No doubt, Shri Dada is justified in relying on the judgment of the Division Bench of 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 and a Division Bench of Calcutta High Court in the case of Union of India and others v. Susanta Kumar Mukharjee 1977 II L.L.J. 460. However, issue in both these judgment is decided on the basis of English judgments, which we propose to analyse hereinafter. In any case, both these judgments only will have persuasive value for this larger Bench. 19. However, the question that we are faced here with is not as to whether a penal decree of a foreign Court could be enforced by the Indian Courts. The question is, as to whether 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly authorities on this point require reconsideration, in view of the obligations of international comity as now understood." Perusal of the aforesaid observations would reveal that, their Lordships held that, as to whether revenue laws of the foreign country, when the contract is to be performed, can be taken into consideration or not while enforcing the same in English Courts, requires reconsideration in view of obligations of international comity as now understood. 23. In the case of Regazzoni v. K.C. Sethia (cited supra), their Lordships were considering the case wherein, defendant Sethia had agreed to sell and deliver to the Plaintiff - Regazzoni 500,000 new B. twills (jute bags). At the time of the making of the contract and at all material times, India was the largest and cheapest producer of jute bags. At that time, South Africa was the large consuming country of the said jute bags. The Indian Authorities, 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 defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h does not actually necessitate the performance of an illegal act, hoping thereby to validate the transaction and make it enforceable. But 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 could thus be seen that His Lordship observes that, if two persons with knowledge and intent, agree to do something by breaking the laws of friendly country, then the British Courts would not lend their aid to the enforcement of such transaction. His Lordship holds that, by doing so, it would be a breach of the comity which should exist between the countries and especially between the countries of the British Commonwealth. The courts of one country should not help to break 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id, that it is wrong to say that one shall take no notice of laws of this kind, as distinct from saying that one shall not enforce such laws. But the view that I take of the whole case here, particularly when I recall the facts upon which the contract was based, really turns upon the principle which was enunciated here by my Lord, that where there are two parties to the contract and the real basis of the making of the contract is that one party or both will break the law of a friendly country, then in that case the matter is one in which for convenience' sake the contract may be said to be an illegal contract, and this court will not enforce it. Particularly is that so when we are dealing with a friendly country within the British Commonwealth." It could thus be seen that Lord Birkett also observes that, it is wrong to say that one shall take no notice of laws of the other country, as distinct from saying that one shall not enforce 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the judgment of Denning L.J., and which was part of the ratio decidendi of his judgment, applies, in my view, to such a case as this where a non-resident alien of the United States has so arranged his affairs that he has avoided payment of the withholding tax which he ought to have paid, and which he would have had to pay if the beneficial interest had been, as it should have been, disclosed to the American authorities." 25. In the case of Oppenheimer And Cattermole (Inspector of Taxes), Nothman and Cooper (Inspector of Taxes) 2 W.L.R. 347, the question that arose before the House of Lords was, as to whether the Appellant who was German subject emigrating to England and becoming British National, would retain the German Nationality and thereby entitled to relief against the income-tax - Double Taxation Relief (Taxes on Income) (Federal Republic of German) Order 1955. While holding that, he would not be entitled to such relief since he did not continue 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 leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly not assist in their breach." It could thus be seen that their Lordships have clearly rejected the argument that, the understated invoice did not constitute any breach of English law but only of German law, and of a German revenue law at that. Their Lordships held that, if English law were to countenance an agreement involving the commission of a criminal offence in a friendly foreign country with impunity by holding that on that ground the agreement is not to be regarded as contrary to public policy, would be an argument of extraordinary nature. Their Lordships held that the view taken in the case of Regazzoni v. K.C. Sethia (cited supra) appears to fly in the face of all principles of comity. 27. In the light of the aforesaid discussion, it appears to be a settled principle of law laid down by English Court that, though the decrees of penal laws of foreign country cannot be enforced in United Kingdom, the laws of foreign countries and especially the countries 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right is not only available to Indian citizen but any person if he has been either convicted or acquitted of such offence by the Court of competent jurisdiction. He cannot be tried again while such conviction 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. No doubt, sub-sections (2) to (5) carve out exceptions under which such person could be tried. 31. It will also be appropriate to refer to Section 4 of the Indian Penal Code, which reads thus: "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;] [(3) any person in any place 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 300 of the Criminal Procedure Code, even such a foreign national cannot be compelled to face a second trial. How would he prove his prior conviction or acquittal and get protection under Article 20(2) of the Constitution or Section 300 of Cr.P.C. if judgment of conviction or acquittal cannot even be noticed by the Courts in India. 34. We are of the considered view that, if we accept the argument that judgment and order of conviction and acquittal passed by the foreign Court cannot at all be looked into by Indian Courts is accepted, it would have devastating result, of depriving a person of his right under Article 20(2) and under Section 300 of Cr.P.C. 35. As a matter of fact, it could be seen that their Lordships of the Apex Court in the case of Jitendra Panchal v. Intelligence Officer, Narcotics Control Bureau and Another (2009) 3 SCC 57, while considering the arguments of double jeopardy and applicability of Article 20(2) and Section 300(1) of the Criminal Procedure Code, have considered the conviction 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 ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turpitude and is sentenced for that offence by a foreign court and after undergoing sentence, he returns to India and desires to contest elections, for which conviction for an offence involving moral turpitude is a disqualification. If the argument of the Appellant that the judgment and order of conviction cannot be looked into is to be accepted, not only it would be contrary to public policy of not permitting a person convicted for offence involving moral turpitude to contest elections, it would also be against the breach of the comity which should exist between the countries. As observed by Lord Salmon in Oppenheimer (cited supra), it would have an effect of embarrassing Indian Sovereign in its relations with other Sovereign States, whose independence it recognizes and with whom it has and hoped to maintain normal friendly relations. 37. In any event, English Courts in the cases of Regazzoni (supra), Oppenheimer (supra) and Euro-Diam Ltd. (supra) have consistently taken a view that, though English Courts would not enforce 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Avinashkumar Bhasin (cited supra) is concerned, we find that the question, as to whether the judgment and order of conviction can be taken notice in India for any other purposes directly fell for consideration. As such, we do not see any apparent conflict in the two views. However, in the light of discussion hereinabove, we find that the view taken by the Division Bench of this Court in Avinashkumar Bhasin (cited supra) lays down the correct position of law. 41. We therefore answer the first question viz question No. (1)(a) in the affirmative. 42. We now propose to consider the second question i.e. question No. (1)(b). We are of the considered view that, though 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 judicial powers, it cannot be said that the same will be ipso facto binding on such Courts and authorities. If we hold that such a judgment of a foreign Court for an offence committed in that country, is binding on the Courts and authorities in India while exercising their judicial and quas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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