Before the High Court of Delhi (1993) 3 SCC 609, (1993) SCC (Cri) 961, AIR 1993 SC 1637 Appellant Ajay Aggarwal Respondent Union of India and ors. Date of Judgement 5th May 1993 Bench Hon’ble Justice K. Ramaswamy; Justice R.M Sahai
As per the traditional Anglo-Indian criminal law jurisprudence, the fundamental principle says ‘All crime is local’. This means the jurisdiction only lies with the country where the crime has been committed. Owing to the present scenarios, such as in the present case where the citizens of a country commit crime from another country, the courts find it tricky and challenging to determine the jurisdiction of the court. States even claim extraterritorial jurisdiction if their interests are affected by the commission of a criminal offense. This is one such case that reaffirms the Jurisdiction of courts when an Indian Citizen commits a criminal offense from outside the country.
The appellant, Ajay Aggarwal is a Non-Resident Indian (NRI) living in Dubai, owner of M/S Sales International Dubai, concocted a conspiracy with four others living in India to cheat Punjab National Bank (PNB) in Chandigarh. The four others were; V.P. Anand, Baldev Raj Sharma, Bansi Lal, and Ranjit Kumar Marwah. Two enterprises in the name of other two accused were opened by Vipin Anand and the appellant, Ajay Aggarwal agreed and got the credit facility by way of foreign letters and issued proforma invoices to PNB through these new enterprises. The Bank Manager, Ranjit Marwah, 5th accused, in confabulation with accused, issued foreign letters of credit in violation of the import policy. The bills of lading were addressed to PNB, were sent to M/S Sales International to check if there is any discrepancy, correctness of which was confirmed thereafter. Trusting the same, the bank issued an Authority letter for the remittance of the amount to Emirates National Bank through some Irving Trust Company. All this happened in the presence of Vipin Anand and at his instance, Emirates Bank informed PNB of discrepancy in the document adaptable to Anand and claimed that goods in the vessel, M.V. Atefeh, were inspected; after which a full amount of 439,200 USD was credited against all the letters of credit. On investigation, it was established that three letters of Credit were all fabricated and vessel, M.V. Atefeh, did not exist and the bank had been cheated of Rs, 40, 30,329.
The Charge Sheet was filed against the appellant and all four accused under Sections 120-B,420,468, and 471 of the IPC.
The case first went to the trial where the accused were discharged of all the offenses on the ground that the offense did not take place in India and as per Section 188 of CrPC, the prosecution needed to bring Sanction of the Central Government for the maintenance of the case which wasn’t produced. The Judgment was revised by the High Court saying that the conspiracy took place in Chandigarh and the acts done in furtherance of the same were committed in Dubai, therefore no previous sanction from the Central Government was required. Setting aside the Trial Court orders, it directed for further proceedings to take place in accordance with the Law. The Order of the High Court is questioned under this appeal by the way of Special Leave under Article 136 of the Constitution.
Laws and Statutory Provisions involved:
- Section 420,468 and 471 of the IPC (Indian Penal Code)
- Section 188 of CrPC (Code of Criminal Procedure)
- Section 120-A and 120-B of the IPC
- Article 136 of the Constitution
- Whether the case falls under the jurisdiction of Indian courts or requires a sanction from the central government according to Section 188 of the CrPC, because of the claim that it was carried out outside India, for cognizance of an offense carried out under section 120B of the IPC?
- Whether conspiracy is a continuing offense?
P. Chidambaram, learned Senior Advocate, contended that the appellant was not privy to the conspiracy and is an NRI businessman who has not come to Chandigarh even once. The transactions were a bank to bank transactions and that part of the conspiracy as per the Prosecution case itself was committed in Dubai. It is agreed that criminal conspiracy is in itself an offense but any act committed in pursuance of the same outside India will require a sanction from the central government under section 188 of the CrPC for it to be tried in India. The offense was constituted of a number of ingredients and if even one of them was committed outside India section 188 of CrPC is attracted.
Sri Goswami, the learned senior counsel contended that the conspiracy to cheat the bank was hatched in Chandigarh and the overt acts committed further were also in Chandigarh. Hence, no Sanction is required from the Government as per Section 188 of CrPC and the high court had rightly recorded the findings of the case.
The court dismissed the appeal of the appellants and ruled in favor of the respondents that the Sanction from the central government was not required. The reason behind the same was given as follows:
- The conspiracy that was contrived in Chandigarh was in itself a complete offense. Taking the appellant’s case itself, even if he was in Dubai and all the acts in furtherance of the crime committed were carried out in Dubai and partly in Chandigarh, they were committed the same time the transactions in cheating PNB, Chandigarh was being ensued. Therefore, this obviates the need to get sanctions from the central government as per section 188 of the CrPC. Elaborating on section 188; the judge noted that the sanction is not a condition precedent to take cognizance of the offense. If need be it could be obtained before the trial begins. It is a procedure to deliver substantive justice i.e. to bring criminals to justice and punish them under IPC or any Special Law as the case may be.
- Conspiracy primarily consists of three essentials 🙁 1)Agreement (2) between two or more persons who give effect to the agreement (3) Criminal object, which may be the ultimate aim or one or means to achieve the same. It is immaterial whether all participants know all the details[i] or be present at each stage of it but they being pursuant to the design and object of the conspiracy, makes each individual severally liable for the offense of Conspiracy. It is a continuing offense until it is executed or rescinded or frustrated by choice or necessity A crime is complete as soon as the agreement is made[ii], but it isn’t momentary and doesn’t end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Referring to Lennart Schussler v. Director of Enforcement,[iii] it was said, Being a continuing offense, if any of the acts pursuant to the conspiracy are carried out in India or abroad, the conspirators being the party to the crime, the need to obtain sanction would be obviated.
- Judicial Power of the state applies to the punishment of all offenses against the domestic laws committed by anyone inside its territory. It is a general principle of International Law, every person irrespective of whether he is a citizen or not, found in a foreign place, is subjected to and punishable by the law of that place. Committing offenses on an International scale is a common feature and offense of conspiracy would be a useful weapon if there would exist no contact in municipal laws and the doctrine of autrefois convict or acquit[iv] would extend to such offenses. The association of nations is duty-bound to detain the conspirators as they set their feet within territorial limits of the country and root out the offense in its initial stages.
By R.M Sahai
- A simple understanding of Section 188 says that (1) there should be an offense (2)committed by an Indian citizen (3) outside India, on fulfillment of which, observance of the provision of Sanction from the central government is necessary. But, that will only unfold if the exhibition of crime outside the country as per the primary clause (n) of Section 2 of CrPC is applicable. The effect of Section 4 of IPC and section 188 of CrPC is only when the offense committed by an Indian citizen outside India is deemed to have been committed inside India.
- None of the Offences as defined has residence as its requirements. The decision of the jurisdiction thus is the place of commission of the offense and not the residence of the accused. The formation of an agreement, the meeting of minds being the primary requirement and not the residence, is an ingredient of the offense. Assuming the appellant sitting in Dubai came into agreement with his counterpart in India for committing an offense with the mutual meeting of minds, the offense of Conspiracy cannot be said to be committed outside India. The case of Mobarik Ali Ahmed v. State of Bombay,[v] was referred to.
- Preparation of the Bills of Lading and the transfer of amount were a chain of events that occurred to cheat the bank and were not acts done in isolation of each other. Illegal Act involving the bank itself in the offense was by the presentation of the bill and not its preparation. The submissions gathered from the preparation of the bills of lading or the residence or the encashment at Dubai are of no consequence. For the reasons mentioned above, none of the activities in play lead to the application of section 188 of CrPC in the said case.
From the Case, it can be concluded that an accused, being an Indian Citizen, committing a crime from abroad, can be tried by any court in India on being approached by the victim without necessarily obtaining the sanction of Central Government as per Section 188 of CrPC as claimed by the appellants again and again in the aforementioned case. Section 188 is not a condition precedent for the cognizance of the offense. Professor Glanville Williams in his article “Venue and the ambit of Criminal Law”[vi] stated that: Sometimes the problem of determining the place of crime is assisted by the doctrine of continuing crime. Some Crimes are regarded as being of a continuing nature, as they may accordingly be prosecuted in any jurisdiction in which they have partly committed the partial commission being, in the eye of the law, a total commission.
“The views of the authors are personal“
[i],K, Dalmia v. Delhi Administration (1963) 1 SCR 253.
[ii]. Noor Mohammed Mohd. Yusuf Momin v. State of Maharashtra (1970) 1 SCC 696.
[iii] Lennart Schussler v. Director of Enforcement, (1970) 1 SCC 152.
[iv] doctrine, established in a foreign case of R v Hutchinson(1677) 3 Keb 785, says a person who has been tried and convicted or has been acquitted by a court of competent jurisdiction in another country may not be tried again for the same offense.
[v] Mobarik Ali Ahmed Vs State of Bombay, 1958 SCR 328.
[vi]1965 LQR 518,528.