| CITATION | AIR 2008 SC 2392 |
| YEAR OF JUDGMENT | 2008 |
| PLAINTIFF | Fatma Bibi Ahmed Patel |
| RESONDENT | State of Gujarat and Ors. |
| STATUTES REFERRED IN THIS CASE | Code of Criminal Procedure |
| BENCH | Lokeshwar Singh Panta , S.B Sinha |
INTRODUCTION
The case of Fatma Bibi Ahmed Patel vs. State of Gujarat is a significant judgment delivered by the Supreme Court of India on May 13, 2008.
This case involves Fatma Bibi, a citizen of Mauritius who was charged with offenses under the Indian Penal Code (IPC) for allegedly instigating her son to physically and mentally torture his wife in Kuwait.
Fatma Bibi’s son, Hanif Ahmed Patel, was married to the complainant, and they resided in Kuwait. The complainant alleged physical and mental torture by her husband and Fatma Bibi.
Despite the fact that the alleged crimes took place in Kuwait, the Chief Judicial Magistrate in Navsari, Gujarat, took cognizance of the offenses and issued summons to Fatma Bibi.
FACTS OF THE CASE
Ahmed Patel was married to the complainant-respondent. Appellant is a citizen of Mauritius and the mother of Ahmed Patel. Her son and daughter-in-law at all material times were residing in Kuwait; indisputably, the entire cause of action arose in Kuwait.
Respondent filed a complaint petition against the appellant under Section 498-A of the IPC, alleging physical and mental torture by her husband. Allegations were made by the respondent against the appellant and her son. Respondent moved to the High Court of Gujarat aggrieved by the revision application filed by the Appellant quashing the summon order passed by Chief Judicial Magistrate
ISSUE RAISED
1. Does the Indian court have jurisdiction to try the case?
2. Is the order taking cognizance illegal?
3. Does the provision of the Penal Code or the Code of Criminal Procedure apply to the case?
4. Does the accused have a fundamental right to be proceeded against only in accordance with law?
5. Does the principle of res judicata apply?
JUDGEMENT
Interpretation of Section 4 of the Penal Code, 1860, and Section 188 of the Code of Criminal Procedure falls for our consideration in this appeal, which arises out of a judgment and order dated 12-4-2006 passed by the High Court of Gujarat at Ahmedabad in criminal and dismissing the criminal revision filed by the appellant .
And the son of the appellant, Hanif Ahmed Patel, was married to the respondent complainant on 22-4-2002. The appellant indisputably is a citizen of Mauritius. Her son and daughter-in-law at all material times were residing in Kuwait. After the complaint petition was therefore filed before the Chief Judicial Magistrate, the respondent alleged physical and mental torture by her husband.
Allegations primarily against the appellant therein were that the first accused used to consult her and she used to instigate him.
And the couple was resident in Kuwait; indisputably, the entire cause of action arose at Kuwait The learned Chief Judicial Magistrate, however, took cognizance of the aforesaid offenses and directed issuance of summons to the appellant by an order. The 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. A joint application with her son was thereafter filed by the appellant for quashing of the entire complaint petition, which was withdrawn.
The appellant, however, filed a fresh application raising a contention that as she is a citizen of Mauritius and as the entire cause of action took place in Kuwait, the order taking cognizance is bad in law. Whereas the learned trial judge then rejected the appeal. The Revisional Court, on a revision application filed by the appellant there against , allowed the same. Respondent 2 moved the High Court of Gujarat, aggrieved thereby, which, by reason of the impugned order, has been allowed.
Mr. Sudarshan Rajan, learned counsel appearing on behalf of the appellant, submitted that having regard to the provisions contained in Section 4 of the Penal Code and Section 188 of the Code of Criminal Procedure, the order taking cognizance as against the appellant was bad in law. Reliance in this behalf has been placed on Central Bank of India v. Ram Narain. AIR 1955 SC 36. Mr. Sudarshan Rajan, learned counsel appearing on behalf of the appellant, submitted that having regard to the provisions contained in Section 4 of the Penal Code and Section 188 of the Code of Criminal Procedure, the order taking cognizance as against the appellant was bad in law. Reliance in this behalf has been placed on Central Bank of India v. Ram Narain. AIR 1955 SC 36. Mr. Pawan Kumar Bahl, learned counsel appearing on behalf of the respondent, on the other hand, urged that having regard to the fact that the appellant had filed an application for quashing an earlier order on the ground of non-compliance with the provisions of Section 188 of the Code of Criminal Procedure and had also filed a quashing application that stood withdrawn, the said application was not maintainable.
Therefore, Section 4 of the 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 beyond India;
(2) Any person on any ship or aircraft registered in India, wherever it may be.
And in this section the word ‘offense’ includes every act committed outside India that, if committed in India, would be punishable under this Code.
ANALYSIS
Section 4 of the Penal Code extends the scope of applicability of the territorial jurisdiction of the court of India to try a case, the cause of action of which took place outside the geographical limits.
In terms of Section 4 of the Penal Code, the Indian courts will have jurisdiction to try an accused only if the accused is a citizen of India, even if the offense was committed outside India or by any person on any ship or aircraft registered in India, wherever it may be. Section 188 of the Code of Criminal Procedure also deals with offenses committed outside India.
A foreigner was not liable to be dealt with in British India for an offense committed and completed outside British India under the provisions of the sections as they stood before the adaptations made in them after the partition of India.
Section 120-B IPC prescribes punishment for criminal conspiracy. An accused has a fundamental right in terms of Article 21 of the Constitution of India to be proceeded against only in accordance with law.
The language of the sections plainly means that if at the time of the commission of the offense, the person committing it is a citizen of India, then even if the offense is committed outside India, he is subject to the jurisdiction of the courts in India. If, however, at the time of the commission of the offense, the accused person is not a citizen of India, then the provisions of these sections have no application whatsoever. In view of the fact that the offense is said to have been committed in Kuwait, the provisions of the Penal Code or the Code of Criminal Procedure cannot be said to have any application.
Therefore, if she is not a citizen of India, having regard to the provisions contained in Section 4 of the Penal Code and Section 188 of the Code of Criminal Procedure, the order taking cognizance must be held to be illegal. In such a case, even the principle of res judicata (wherever applicable) would not apply.
CONCLUSION
Therefore, if Fatima Bibi is not a citizen of India, having regard to the provisions contained in Section 4 of the Penal Code and Section 188 of the Code of Criminal Procedure, the order taking cognizance must be held to be illegal, and in such a case, even the principle of res judicata would not apply to this case.
REFERENCES
1. https://indiankanoon.org/doc/1882399/
2. https://www.casemine.com/search/in/fatma%2Bbibi%2Aahmed%2Bpatel
This article is written by Trisha Jaiswal, an intern at Legal Vidhiya.
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