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Fatma Bibi Ahmed Patel Versus State of Gujarat & Anr.

2008 (5) TMI 691 - SUPREME COURT

CRIMINAL APPEAL NO. OF 2008 (Arising out of SLP (Crl.) No.6004 of 2006) - Dated:- 13-5-2008 - SINHA, S.B. AND PANTA, LOKESHWAR SINGH, JJ. JUDGMENT S.B. Sinha, J. 1. Leave granted. 2. Interpretation of Section 4 of the Indian Penal Code and Section 188 of the Code of Criminal Procedure fall for our consideration in this appeal which arises out of a judgment and order dated 12.04.2006 passed by the High Court of Gujarat at Ahmedabad in Criminal Revision Application No. 358 of 2005 dismissing the C .....

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therein were that the first accused used to consult her and she used to instigate him. As the couple was residing at Kuwait, indisputably the entire cause of action arose at Kuwait. The learned Chief Judicial Magistrate, Navsari, however, took cognizance of the aforesaid offences and directed issuance of summons to the appellant by an order dated 30.5.2003. An application was filed by her stating that the complaint petition filed without obtaining the requisite sanction under Section 188 of the .....

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l Court on a revision application filed by the appellant there against, allowed the same. Respondent No. 2 moved the High Court of Gujarat aggrieved thereby which by reason of the impugned order has been allowed. 4. Mr. Sudarshan Rajan, learned counsel appearing on behalf of the appellant, submitted that having regard to the provisions contained in Section 4 of the Indian Penal Code and Section 188 of the Code of Criminal Procedure, the order taking cognizance as against the appellant was bad in .....

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as not maintainable. Offences said to have been committed by the appellant in the complaint petition were under Sections 498A and 506(2) of the Indian Penal Code. Provisions of the Indian Penal Code and the Code of Criminal Procedure would, therefore, indisputably apply. Section 4 of the Indian Penal Code reads as under:- "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 .....

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on 188 - 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 o .....

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ce outside the geographical limits. Parliament indisputably may enact a legislation having extra territorial application but the same must be applied subject to fulfillment of the requirements contained therein. There are materials before us to show that the appellant is a citizen of Mauritius. She has been visiting India on Visas issued by India. She, thus, indisputably is not a citizen of India. She might have been staying in India with her relatives as has been contended by the complainant, b .....

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y person on any ship or aircraft registered in India wherever it may be. Neither of the aforementioned contingencies is attracted in the instant case. Section 188 of the Code of Criminal Procedure also deals with offences committed outside India. Clause (a) brings within its sweep a citizen of India, whether on the high seas or elsewhere, or by a person, although not citizen of India when the offence is committed on any ship or aircraft registered in India. In view of the fact that the offence i .....

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ng so, he could be tried in India being a citizen of India at that moment, and having committed offences outside India, and that the provisions of Section 4 I.P.C. and Section 188, Cr. P.C. were fully attracted to the case. In our opinion, this contention is not well founded. The language of the sections plainly means that if at the time of the commission of the offence, the person committing it is a citizen of India, then even if the offence is committed outside India he is subject to the juris .....

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isions of the sections as they stood before the adaptations made in them after the partition of India. Illustration (a) to Section 4, I.P.C. delimits the scope of the section. It indicates the extent and the ambit of this section. It runs as follows: "(a) A, a coolie, who is a Native Indian subject commits a murder in Uganda. He can be tried and convicted of murder in any place in British India in which he may be found." In the illustration, if (A) was not a Native Indian subject at th .....

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by the learned counsel appearing on behalf of the respondents on Ajay Agarwal vs. Union of India [AIR 1993 SC 1637]. The question which arose for consideration therein was that as to whether a sanction of Central Government for prosecution in terms of Section 188 of the Code of Criminal Procedure was necessary. The said question was answered in the negative stating: "8. The question is whether prior sanction of the Central Govt. is necessary for the offence of conspiracy under proviso to S .....

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to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in furtherance thereof. Section 120-B of the I.P.C. prescribes punishment for criminal conspiracy. It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) a .....

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nspiracy to do an unlawful act by unlawful means" and was elaborated by Willies, J. on behalf of the Judges while referring the question to the House of Lords in Mulcahy v. Reg (1868) L.R. 3 H.L. 306 and the House of Lords in unanimous decision reiterated in Quinn v. Leathem 1901 AC 495 at 528 as under: "A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a .....

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in his concurring judgment stated: "Language of the section is plain and simple. It operates where an offence is committed by a citizen of India outside the country. Requirements are, therefore, one - commission of an offence; second - by an Indian citizen; and third - that it should have been committed outside the country. Out of the three there is no dispute that the appellant is an Indian citizen. But so far the other two are that the conspiracy to forge and cheat the bank was hatched by .....

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accordance with law. The law which would apply in India subject of course to the provisions of Section 4 of the Indian Penal Code and Section 188 of the Code of Criminal Procedure is that the offence must be committed within the territory of India. If admittedly, the offence has not been committed within the territorial limits of India, the provisions of the Indian Penal Code as also the Code of Criminal Procedure would not apply. If the provisions of said Acts have no application as against th .....

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