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UNIVERSITY INSTITUTE OF LEGAL STUDIES PANJAB UNIVERSITY

PAMMI@BRIJENDRA SINGH v. STATE OF MADHYA PRADESH (1998)

Submitted to: Dr. Pushpinder Gill

Submitted by: Prinkle Singla 5th Semester 207/10

ACKNOWLEDGMENT
I owe a great many thanks to many people who helped me in the making of the project .My deepest thanks to our teacher, Dr. Pushpinder Kaur, for guiding us in making of the project and for correcting and refining my research with great attention and care. Also I would like to express my gratitude towards the library staff of U.I.L.S. for providing materials that helped in the successful completion of the project. Also I would like to thank my family and friends for their cooperation and help.

Prinkle Singla 5th semester 207/10

CONTENTS
I. Introduction

II.

List of Cases

III. i. ii. iii.

Recent cases: Italian marines case February 2012 Fatma Bibi Ahmed Patel Vs State Of Gujarat & Anr - May, 2008 Muhammed Sajeed K. Vs The State Of Kerala - April, 1995

IV.

Bibliography

LIST OF CASES
Anderson (1868) LR 1 CCR161 Central Bank of India Ltd. v. Ram Narayan,(1955) 1 SCR 697. Chotalal (1912), bom LR 147 Fatma Bibi Ahmed Patel Vs State Of Gujarat & Anr - May, 2008 Hussan Ali,(1873)5 NWP 49. Italian marines case February 2012 Kuloda Prasad Majumdar,(1906) Mobarak Ali Ahmed v. State of Bombay, AIR 1957 SC 857:1957 Cri LJ 1346 Muhammed Sajeed K. Vs The State Of Kerala - April, 1995 Narayan Mohale, (1935), 37 Bom L.R. 885. Raymund Gencianeo v. State of Kerala, 2004 Cri LJ 2296 (ker) State of W.B. v. Jagal Kishore More, (1969) 3 SCR 320 Syndicate Transport Co. Pvt. Ltd. v. State, 1963 , Bom LR 197

INTRODUCTION
Under Indian penal Code Section 97 , every person has a right, subject to the restrictions contained in section 99, to defend First - his own body or body of any other person against any offence affecting the human body. Second - the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

TOPIC REFERENCE
This allows a person to defend his or anybody else's body or property from being unlawfully harmed. The right to defend the person and property against unlawful aggression was limited to the person himself or kindred relations or to those having community of interest e.g. parent and child, husband and wife, landlord and tenant, etc. However, this section allows this right to defend an unrelated person's body or property as well. Thus, it is apt to call it as right to private defence instead of right to self defence.

It is important to note that the right exists only against an act that is an offence. There is no right to defend against something that is not an offence. For example, a policeman has the right to handcuff a person on his belief that the person is a thief and so his act of handcuffing is not an offence and thus the person does not have any right under this section.

Similarly, an aggressor does not have this right. An aggressor himself is doing an offence and even if the person being aggressed upon gets the better of the aggressor in the exercise of his right to self defence, the aggressor cannot claim the right of self defence. As held by SC in Mannu vs State of U.P.1, when the deceased was waylaid and attacked by the accused with dangerous weapons the question of self defence by the accused did not arise.

The right to private defence of the body exists against any offence towards human body, the right to private defence of the property exists only against an act that is either theft, robbery, mischief, or criminal trespass or is an attempt to do the same.

In Ram Rattan vs State of U.P.2, SC observed that a true owner has every right to dispossess or throw out a trespasser while the trespasses is in the act or process of trespassing and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing the possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking resource to the remedies available under the law. 3 This Section limits exercise of the right of private defence to the extent of absolute necessity. It must not be more than necessary for defending aggression. There must be reasonable apprehension of danger that comes from the aggressor in the
1 2

AIR 1989 SC AIR 1977 3 http://www.indiankanoon.org/doc/593533/

form of aggression. This Section divides the right of private defence into two parts, i.e. the first part deals with the right of private defence of person, and the second part with the right of private defence of property. To invoke the plea of right of private defence there must be an offence committed or attempted to be committed against the person himself exercising such a right, or any other person. The question of the accrual of the right of the private defence, however, does not depend upon an injury being caused to the man in question4. The right could be exercised if a reasonable apprehension of causing grievous injury can be established. If the threat to person or property of the person is real and immediate, he is not required to weigh in a golde5n scale the kind of instrument and the force which he exerts on the spur of the moment. The right of private defence extends not only to the defence of ones own body and property, as under the English law, but also extends to defending the body and property of any other person. Thus under section 97 even a stranger can defend the person or property of another person and vice versa, whereas under the English law there must be some kind of relationship existing such as father and son, husband and wife, etc., before this right may be successfully exercised. A true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing but has not accomplished his mission; but this right is not available to the true owner if the trespasser has been successful in accomplishing possession and his success is known by the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law. The onus of establishing plea of right of private defence is on the accused though he is entitled to show that this right is established or can be sustained on the prosecution evidence itself. The right of private defence is purely
4

GAUR, SHRI NARAIN, THE INDIAN PENAL CODE 1860, DWIVEDI & CO. ALLAHABAD, 2006

preventive and not punitive or retributive. Once it is held that the party of the accused were the aggressors, then merely because a gun was used after some of the party persons had received several injuries at the hands of those who were protecting their paddy crop and resisting the aggression of the party of the accused, there can be no ground for taking the case out of Section 302, I.P.C., if otherwise the injuries caused bring the case within the definition of murder. Parichhat vs State of M.P6 : A lathi blow on his fathers head, his son, the accused, gave a blow with a ballam on the chest of the deceased. The court decided that the accused has obviously exceeded his right of private defence. Where the accused persons armed with guns started continuous firing at members of prosecution parties, even if accused has a claim of right to the property should have approached to Magistrate it is difficult to concede right of private defence; Ayodhya Ram v. State7.

While dealing with Sections 96 and 97 of I.P.C. and Section 105 of the Evidence Act, some principles have been given for appreciation of the said question by the Supreme Court. These principles have been laid down in JAMES MARTIN v. STATE OF KERALA8 and KASHI RAM v. STATE OF M.P.9 The following are the principles to be borne in mind:

6 7

1972 SC 535 1999 SCC (Cr) 564 8 2004 S.C.C.(Cri) 437 9 2002 S.C.C.(Cri) 68

(1) Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. In determining this question of fact, the court must consider all the surrounding circumstances. (2) It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, then it is open to the court to consider such a plea. (3) Under Section 105 of the Evidence Act, the burden of proof is on the accused, who sets up the plea of self-defence. In the absence of the said proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. (4) Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (5) The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence.

The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. (6) A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed on its proper setting. (7) To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to rerasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. (8) The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. I.P.C., available only when the circumstances clearly justify it. It should not be allowed to be pleaded or avail as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence expected to repel unlawful aggression and not as a retaliatory measure. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.

RECENT CASES

ITALIAN MARINES CASE FEBRUARY 2012

PETITIONERS: 1. MASSIMILANO LATORRE 2. SALVATORE GIRONE 3. REPUBLIC OF ITALY

RESPONDENTS: 1. UNION OF INDIA 2. STATE OF KERALA 3. CIRCLE INSPECTOR OF POLICE, NEENDAKARA COASTAL POLICE STATION, KOLLAM DISTRICT, KERALA 4. DORAMMA W/O. VALENTINE (LATE) DERRICK VILLA 5. ABHINAYA XAVIER (MINOR), REPRESENTED BY HER NEXT FRIEND S. JANETMARY 6. AGUNA XAVIER (MINOR), REPRESENTED BY HER NEXT FRIEND S. JANETMARY.

INTRODUCTION The recent arrest and prosecution of two Italian navy marines (Massimilano Latorre and Salvatore Girone), on board the Enrica Lexie, in connection with the death of two Indian fishermen (Valentine and Ajesh Binki) has received much media attention. With a spate of diplomatic communication and conflicting facts emanating from Indian and Italian corners, the legality of the Kerala High Court proceedings stands shrouded with uncertainty. FACTS On February 15, 2012, an FIR was lodged at Neendakara Coastal Police Station by one Fredy, owner of the Indian registered fishing boat St. Antony. It was alleged in the FIR that at 4.30 p.m. (IST) on that day while the fishing boat St. Antony was sailing through the Arabian Sea, incriminate firing was opened by an Italian Ship - M.T. Enrica Lexie. As a result of firing from the Appellant vessel, two innocent fishermen who were on board died. On the basis of FIR, a case under Section 302 of the Indian Penal Code, Indian Penal Code was registered. The Italians dispute this version given by the Supreme Court of India. First, they claim that warning shots were fired in the air and water surrounding the boat. Secondly, they claim that the Enrica Lexie was not, as the Indians claim, 23 nautical miles of the Kollam coast, but rather, 33 nautical miles away. ISSUES RAISED The main questions here are: Are the Italian marines guilty as charged? That is a matter for the competent court to determine on an appreciation of the evidence. My inquiry here is to see which court is competent, the Indian or the Italian?

This, in turn, depends on two related questions: First, can Indian courts exercise extra-territorial jurisdiction, and if so, is such jurisdiction precluded by sovereign immunity ratione materiae. Whether the Italian Marines on board the vessel who shot down two Indian fishermen, onboard a boat registered in India, in the territorial sea / contiguous zone / Exclusive Economic Zone of India are liable to be prosecuted for murder in accordance with the IPC and other domestic laws of India? Held:- The coastal States has the right for the establishment and use of artificial islands, installations and structures, marine research, protection and preservation of the marine environment etc.Also in exercising the above rights and performing the duties, the coastal state shall act in a manner compatible with the provisions of the Convention. The coastal state is entitled to enact any law which is not incompatible with the provisions of the Convention for maintaining law and order, and for exercising and protecting the rights including the lives of the persons employed/engaged in exercise of the above rights. To hold that a coastal state has no right whatsoever to protect its nationals exercising their legitimate rights inside the coastal state's CZ/EEZ, would be nothing but a total travesty of justice and an outrageous affront to the nation's sovereignty. Such a view would mean that any day, any passing-by ship can simply shoot and kill, at its will, fishermen engaged in earning their livelihood; and then get away with its act on the ground that it happened beyond the territorial waters of the coastal state The Italian Marines, who shot dead the two Indian fishermen engaged in fishing in the EEZ are therefore liable to be dealt with under the Territorial Waters Act, 1976, IPC, CrPC and the SUA Act.

Whether the Italian Marines are entitled to sovereign immunity against the prosecution in India? Held:- Municipal law as well as International law recognizes sovereign immunity. But the extent of immunity depends upon the circumstances in which the forces are admitted by the territorial State, and in particular upon the absence or presence of any express agreement between the host and the sending State regulating the terms and conditions governing the entry of forces in the coastal territory. In this case there was no `entry' by the Italian Marines to the territory of India, but a merciless attack of gunshots at fishermen, while passing through the CZ/EEZ of India, breeching all established guidelines and norms, and without any cause. It can be treated only as a case of brutal murder and can in no way be masqueraded as a discharge of the sovereign function. Where the members of military forces of a country commit wrongful acts, while engaging in nonmilitary functions, it is quite appropriate for the aggrieved state to claim jurisdiction and subject them to the local law. International Law does not recognize any absolute waiver of jurisdiction by the aggrieved State. In the case at hand, petitioners 1 and 2 were under the control of the Captain of the ship and hence were to act only under his orders. There is nothing on record to show that the Italian marines were allowed absolute freedom to shoot and kill any person, even in cases of piracy attacks. In other words, the marines were not under the command of their immediate Superior Officer, but under the Captain of the vessel. Since, there is nothing on record to come to a conclusion that the Captain had given them any instruction to open fire at the boat, it has to be inferred that they did so at their own whim, and not under the command of either the Captain or of their superior officer in the Navy, so as to be able to claim sovereign immunity. In the peculiar facts and circumstances of the case, I find that by no

stretch of imagination can it be held that the shooting of two Indians by petitioners 1 and 2 is an act in exercise of sovereign functions. It is neither an action in defence of the State nor one in defence of the vessel, but a private, illegal and criminal act. Therefore, the second issue should be against the petitioners and in favour of the respondents, by holding that petitioners 1 and 2 are not entitled to any sovereign immunity.

JUDGMENT Passive Nationality Principle and Objective Territorial Principle: Here, in this case, as the victims are Indians, Passive Nationality Principle is applicable, and under it the Italian Marines are liable to be prosecuted in India. The justification for applying Passive Nationality Principle is that each State has a perfect right to protect its citizens abroad and if the territorial state of the locus delicti, neglects or is unable to punish the person causing the injury, the State of which the victim is a national is entitled to do so if the persons responsible come within his power. Further, the Objective Territorial Principle is also applicable in cases where an act commences in one State but is consummated or completed within the territory of another State, producing gravely harmful consequences in the latter. State Practice : State practice also indicates that in appropriate cases the coastal states have exercised its jurisdiction over the contiguous zone as well.

CONCLUSION Broadly, international law governing the law of the sea is found the United Nations Convention on the Law of the Sea (UNCLOS) and customary international law both binding on India and Italy. The UNCLOS establishes 3 zones, each with varying sovereign rights for the coastal state: the territorial sea (extending up to 12 nautical miles), the continental shelf (24 nautical miles) and the exclusive economic zone (200 nautical miles). This regime is reflected internally in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act of 1976 as well. Whilst the territorial sea envisages complete sovereign rights, the continental shelf is a halfway house for sovereign rights and the EEZ allows for limited exploitation of economic resources, scientific research, marine environment and artificial structures. Assuming the offence was committed 2-3 nautical miles off the Kollam coast, India is justified in international law in exercising criminal jurisdiction within its territory, as any other crime. Assuming the validity of the Italian facts, however, the question concerns the exercise of extra-territorial jurisdiction. I believe that India may nonetheless exercise criminal jurisdiction in such a case based on the passive personality principle along with the dictum of the Lotus and Arrest Warrant cases decided by the PCIJ and ICJ respectively. Rather, I believe India would be well-placed in asserting jurisdiction on the passive personality principle.Jurisdiction may be asserted on the basis of territoriality and its extensions (if the crime was committed on the territory of the State), the active personality theory (perpetrator is a national of the State), passive personality (victim is a national of the State), the protected interest theory

(where essential interests of the state are engaged in the crime) and the universality principle. Finally, one must mention the similarity of the present facts and the Lotus case, where Turkey was questioned for prosecuting French seamen for the death certain Turkish seamen in a collision between French and Turkish ships. There, the Court vindicated the Turkish stand. Having argued that Indian Courts can exercise jurisdiction under international law the next relevant question is of sovereign immunity, as claimed by the Italian Republic. Sovereign immunity may be as against the individuals status (ratione personae) or that which attaches to his functions (ratione materiae). The former is limited to high-ranking officials (heads of state and the like) and thus, it is reasonable to exclude the Italian marines from this sphere.

FATMA BIBI AHMED PATEL VS STATE OF GUJARAT & ANR - MAY, 2008

APPELLANT: FATMA BIBI AHMED PATEL

RESPONDENTS : STATE OF GUJARAT & OTHERS

INTRODUCTION Interpretation of Section 4 of the Indian Penal Code and Section 188 of the Code of Criminal Procedure fall for 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 Criminal Revision filed by the appellant herein. FACTS Son of the appellant Hanif Ahmed Patel was married to the complainant respondent on 22.4.2002. Appellant indisputably is a citizen of Mauritius. Her son and daughter-in-law at all material times were residing at Kuwait. A Complaint Petition, however, was filed before the Chief Judicial Magistrate, Navsari by the said respondent alleging physical and mental torture by her husband (the first accused). Allegations primarily against the appellant 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 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. Appellant, however, filed a fresh application on

or about 6.12.2004 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 thereagainst, allowed the same. Respondent No. 2 moved the High Court of Gujarat aggrieved thereby which by reason of the impugned order has been allowed. ISSUES RAISED The 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 law. The learned 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. 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 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. Section 188 of the Code of Criminal Procedure reads as under: "Section 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 or tried in India except with the previous sanction of the Central Government." HELD In our constitutional scheme, all laws made by Parliament primarily are applicable only within the country. Ordinarily, therefore, all persons who commit a crime in India can be tried in any place where the offence is committed. Section 41 of the Indian Penal Code, however, 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. 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, but it has not been denied and disputed that she is not a citizen of India. If she is not a citizen of India 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 must be held to be illegal. In terms of Section 4 of the Indian Penal Code, the Indian courts will have jurisdiction to try an accused only if the accused is a citizen of India even if the offence was committed outside India or by any 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 is said to have been committed in Kuwait, the provisions of the Indian Penal Code or the Code of Criminal Procedure cannot be said to have any application. The court therein was concerned with a charge of conspiracy. The learned counsel submitted that as in the earlier application, the appellant merely complained of the absence of any sanction, this application should not be entertained. We do not agree. Principles analogous to res judicata have no application with regard to criminal cases. 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 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 jurisdictional issue has been raised by the appellant herein. Only because on a mistaken legal advise, another application was filed, which was dismissed, the same by itself, in our opinion, will not come in the way of the appellant to file an appropriate application before the High Court particularly when by reason thereof her fundamental right has been infringed. This Court, in a matter like the present one where the jurisdictional issue goes to the root of the matter, would not allow injustice to be done to a party. 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. Where a jurisdictional issue is raised, save and except for certain categories of the cases, the same may be permitted to be raised at any stage of the proceedings. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed with costs.

MUHAMMED SAJEED K. VS THE STATE OF KERALA - APRIL, 1995

PETITIONER: MUHAMMED SAJEED K.

RESPONDANT: THE STATE OF KERALA

INTRODUCTION The question that arise in this case relates to the jurisdiction of the Kerala Police to conduct investigation against petitioner, an Indian citizen, in respect of some offences alleged to have been committed by him in the United Arab Emirates. That question arises in the context of Section 4 of the Indian Penal Code and Sections 4 and 188 of the Code of Criminal Procedure. FACTS Petition alleges that petitioner was employed in Fursan Travel and Tourism, Riyad, U.A.E., since September, 1993. The job was on a contract basis for a period of one year and extended by three months. After that period the contract was not renewed and the employment was terminated. Petitioner had to return to this country in December, 1994. A complaint was presented before the Deputy Inspector General of Police, Kottayam by one Mohammed Haneefa alleging that petitioner had

misappropriated 1077 Riyals (Rs. 8.41.488/-) and Mohammed Haneefa had to pay the amount to the employer of petitioner since petitioner was employed there on the recommendation of Mohammed Haneefa. It was also alleged that two other persons had misappropriated other amounts. On the basis of that complaint the sub Inspector of Police.,Mundakayam registered a case under Sections 408, 420 and 34 IPC and the FIR was lodged before J.F.C.M.I. , Kanjirappally. Petitioner seeks quashing of the complaint and the FIR on the ground that the Kerala Police has no jurisdiction to investigate into the crime committed in a foreign country and the averments in the complaint do not disclose any offence.

ISSUE Does the Kerala police have jurisdiction in this case?

HELD Section 4 IPC confers extra territorial jurisdiction to try offences committed by any citizen of India in any place without and beyond India. Section 4 of the Code of Criminal Procedure directs that all offences under the Indian Penal Code hall be investigated, inquired into, tried, and otherwise dealt with according to the provisions contained in the Code. This is applicable to investigation, inquiry or trial in respect of all offences under any other law. Section 188 of the Code provides that when an offence is committed outside India by a citizen of 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. The section contained a proviso that notwithstanding anything in any of the preceding section of that Chapter, no such offence hall be inquired into or tried in India except with the previous sanction of the Central Government. Section 188 Cr. P.C. provides that when an offence is committed outside India by a citizen of India, he hall 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. The power of investigation is conferred on an officer in charge of a police station under Section 156 of the Code. Wide powers arc seen given to the police under Sub-section (1) of Section 156 in the matter of investigation of a cognizable case. But the Magistrate can order investigation of a case under Section 156 (3) only if he has

territorial jurisdiction over the place where the offence was committed. But no Such limitation can be imposed on the power of investigation conferred on an officer in charge of a police station under Sub-section (1) of Section 156 in view of the phrase "may be dealt with in respect of such offence" used in Section 188 of the Code. The use of that phrase in the section taken along with the proviso which bars only inquiry or trial without the previous sanction of the Central Government leads us to the conclusion that an officer in charge of a police station has power to investigate a cognizable offence committed by a citizen of India beyond the territorial limits of this country. The Kerala police has therefore jurisdiction to investigate into the offences committed by petitioner in Riyad in U. A.E. That is the only conclusion possible in the light of the principles laid down by the Division Bench of this Court in Muhammed's case 1994 (1) KLT 464 which are binding on me. Before leaving the case I am constrained to observe that when offences committed by Indian citizens employed overseas are on the increase, this Court has to bear in mind that it is dangerous to disturb the decisions of this Court holding the field for a period of two years and unsettle the investigation in progress in the matter of such offences. The request for quashing the complant and the FIR was therefore refused.

BIBLIOGRAPHY

Books referred:
Justice Y V Chandrachud and VR Manohar, The Indian Penal Code, 19th ed, 2004, Wadhwa and Co, Nagpur. T. Bhattacharya , The Indian penal code, 4th ed, 2004, Central Law Agency, Allahabad. Prof. S.N. Misra , Indian Penal Code, 18th ed, 2012, Central Law Publications, Allahbad. Batuk Lal, Commentary on the Indian Penal Code, 1860,Vol. 1, Orient Publishing Company, Delhi. Stephen , Digest of Criminal law, Cambridge Law Journal, 19th ed, vol. 3. K. D. Gaur, Textbook on Indian Penal Code, 2004,Universal Law Publishing Co. Pvt. Ltd., Delhi

Webpages referred:
http://www.indiankanoon.org/doc/593533/ http://www.articlesbase.com/criminal-articles/right-of-private-defense-under-indianpenal-code-3317497.html http://www.indiacourts.in/PAMMI-@-BRIJENDRA-SINGH-Vs.-GOVERNMENTOF-MADHYA-PRADESH_adbb27a8-b760-4c45-8d63-2f85959c6474 http://indiankanoon.org/doc/1748156/

http://www.indiankanoon.org/doc/1882399/ http://ilcurry.wordpress.com/2012/02/27/the-enrica-lexie-incident-and-internationallaw-some-preliminary-thoughts/ http://bharatchugh.wordpress.com/2012/05/23/extra-territorial-jursidiction-of-ipc-s-4ipc-s188-crpc/ http://lawandotherthings.blogspot.in/2012/06/murder-most-foul-curious-case-of.html http://www.thehindu.com/news/national/article2917143.ece https://498amisuse.wordpress.com/2010/07/29/lack-of-territorial-jurisdiction-of-thecourt-is-no-ground-for-quashing-498a-ipc/ https://terminatorak.wordpress.com/2011/10/04/ipc-498a-quashed-no-territorialjurisdiction/ http://www.advocatekhoj.com/library/judgments/announcement.php?WID=2698 http://498afighthard.wordpress.com/2011/04/27/ipc-498a-quashed-territorialjurisdiction/ http://www.dnaindia.com/india/report_italy-moves-supreme-court-in-marinecase_1715731