Facts of the case
- Son of the appellant Hanif Ahmed Patel was married to the respondent. Appellant was a citizen of Mauritius. Her son and daughter-in-law were residing at Kuwait.
- A Complaint Petition was filed before the Chief Judicial Magistrate by the said respondent alleging physical and mental torture by her husband (the first accused).Allegations primarily against the appellant were that the first accused used to consult her and she used to instigate him.
- The learned Chief Judicial Magistrate took cognizance of the aforesaid offences and directed issuance of summons to the appellant.
- An application was filed by her stating that the complaint petition filed without obtaining the requisite sanction under Section 188 of the Code of Criminal Procedure was bad in law. The same was dismissed.
- Appellant filed an application raising a contention that as she is a citizen of Mauritius and as the entire cause of action took place at Kuwait, the order taking cognizance is bad in law.
- Whereas the learned trial judge rejected the said plea, the Revisional 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.
- The 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 law.
- The counsel appearing on behalf of the respondent, on the other hand, urged that having regard to the fact that the appellant having filed an application for quashing earlier on the ground of non-compliance of the provisions of Section 188 of the Code of Criminal Procedure as also having filed a quashing application which stood withdrawn, the said application was not maintainable.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.
- Interpretation of Section 4 of the Indian Penal Code and Section 188 of the Code of Criminal Procedure fall for the Supreme Court Consideration by the appeal against the High Court Judgment.
Judgment
The Supreme Court stated that, “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 the appellant, the order taking cognizance must be held to be wholly illegal and without jurisdiction. The entire proceedings having been initiated illegally and without jurisdiction, all actions taken by the court were without jurisdiction, and thus are nullities. In such a case even the principle of res judicata (wherever applicable) would not apply.”The appeal was allowed.
BY: ANKIT RAJPUT