If an offence is committed outside India by a person who is not a citizen of India, can such person be prosecuted in India by Indian courts?

Let’s try to analyse this question further with the perspective of a husband, who is a citizen of Canada and has married an Indian woman based in Chandigarh. The married life of this couple does not go smooth and there are constant quarrels and disagreements. So much so that wife also has an extramarital affair. When husband comes to know about it, he files petition for divorce. What facts should I consider as an advocate in Chandigarh?

During the divorce proceedings the husband wants to lead the evidence regarding extramarital affair of the wife. However, wife agrees to give divorce by mutual agreement without going into merits of the case. Husband’s attorney agrees to it. The divorce is decreed. The wife comes back to Chandigarh and lodges and a false FIR (criminal complaint to the police – also called false dowry case) against the husband who is a citizen of Canada, his mother, his father, his brother, his brother’s wife. She states to the police that the husband and his relatives mentioned above subjected her to physical and mental cruelty for the purpose of getting dowry from her and her family. She also alleges that the husband has refused to give back her gold jewellery before she came back to India from Canada. She also alleges that husband and his relatives mentioned above threatened her in Canada that he will physically harm her. These statements of wife constitute offences under section 498A, 406, 506 of Indian penal code. In other words, dowry case against NRI who is residing outside India.

Question here arises whether the husband can plead in Indian courts that when the alleged offenses took place he was not a citizen of India and further that all these alleged offenses took place in Canada which is beyond the territorial jurisdiction of the courts? Can he therefore plead that the trial against him should not commence or continue and that the criminal complaint with the police should be quashed (cancelled) by Court?

In this context, the relevant sections of Indian penal code and criminal procedure code are section 4 and section 188 respectively.

Section 4, Indian Penal Code. 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.
Explanation. – In this section the word “offence” includes every act committed outside India which, if committed in India, would be punishable under this Code.
Illustration
A, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder in any place in India in which he may he found.

Section 188, Criminal Procedure Code – Offence committed outside India. – When an offence is committed outside India –
(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.

As a criminal lawyer based in Chandigarh, I will suggest that it is clear from these sections that the criminal proceedings cannot continue against the husband in Indian courts. The several judgements Supreme Court and various high courts with state that under the aforesaid circumstances criminal proceedings cannot be initiated against the husband. There are, however, changes which criminal lawyers suggest so that Indian Courts have jurisdiction over the matter. For example, they may suggest clients to factually prove that some of the offences have been committed in India. For example – exchange of dowry, criminal intimidations by Canadian or US or Uk citizens through mobile phone to persons present in India etc.

And there are other circumstances which are of concern to the husband and his relatives. Firstly on what grounds will the husband and his relatives seek anticipatory bail in Indian courts? It may be seen above that husband’s attorney in Canada did not lead evidence regarding extramarital affair of wife. Therefore the Indian courts will not take that into consideration. Further allegations in the FIR prima facie make out the offences mentioned above. Secondly the wife can easily allege that relatives of the husband threatened her over the telephone calls while she was in Canada; it was a criminal conspiracy between husband and his relatives mentioned above to illegally keep with the husband the gold jewellery of wife.

Sections 3 and 4 of Indian Penal Code deal with those offences which are committed beyond the act territorial limits of India. In contrast, section 2 deals with those cases in which offences have been committed within India. Therefore section 2 deals with persons who have committed offences in India.

Section 2 of Indian Penal Code incorporates the principle of criminal law under which courts have jurisdiction to try persons who are within their territorial jurisdiction. This does not mean that only an Indian citizen can be tried in India if he commits an offence in India. Even a foreigner who is not a citizen or resident of India can be tried under Indian Penal Code if such foreigner commits an offence in India. Such a person who is committing an offence must be physically present within India at the time when such commission is made if he’s to fall under section 2 of Indian Penal Code. Therefore in other words the emphasis of section 2 is on the location on which crime has been committed and has less concern with the person who has actually committed the offence.

Therefore it has to be considered whether the person who has committed the offence was at the time the offence was committed within the jurisdiction of Indian courts. This is only in context of section 2 which deals with territorial jurisdiction of Indian courts.

There are other sections which deal with those offences which are alleged to be committed beyond the territorial jurisdiction of India. These sections are section 3 and 4. Section 3 deals with extraterritorial operation of Indian penal code. In general every state has its own territorial limits and its laws are applicable within the territory only. However there are certain exceptions circumstances in which laws of the State are applicable outside itself. State not be able to act enforce these laws outside its own jurisdiction but nevertheless the municipal courts must give effect to such laws. The act is not invalid merely because the effects of its sections are felt beyond its territorial limits. For example a smuggler shoots a police officer. The police officer is standing on the Indian side of the border and the smuggler is standing beyond the Indian side of the border. In such circumstances the smuggler is liable to be prosecuted under Indian Penal Code. This example can be extended to crimes which have arisen because of rise of modern technology for example hacking of a computer system.

Therefore a judgment can be passed against the accused persons who are not residing in India or are not citizens of India. They may also be declared proclaimed offenders PO under Indian Laws.

Is there something that the foreign/ Canadian lawyer can do for his client (husband) so that his client does not have to face trial in Indian courts? It may be noted that the criminal trials continue for years and are dragged by either of the parties to harass the other party. To know the answer, please contact us