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India: Jurisdiction to Try Crimes Committed Abroad

(Sept. 13, 2011) As reported in early September 2011, India's Supreme Court has ruled that Indian citizens who commit crimes while abroad can in some cases be tried in India. According to a three-judge bench, “the provisions of Indian Penal Code have been extended to offences committed by any citizen of India in any place within and beyond India by virtue of Section 4 thereof.” (Indian Courts Can Try Offences Committed by Indian in Foreign Country, Rules Bench, THE HINDU (Sept. 9, 2011).)

Section 4 of the Penal Code states that its provisions also cover offenses committed by “any citizen of India in any place without and beyond India” and by “any person on any ship or aircraft registered in India wherever it may be.” (The Indian Penal Code, Act No. 45 of 1860 (Oct. 6, 1860), Indian Ministry of Home Affairs (MHA) website; the Code was amended by the Criminal Law (Amendment) Act, Act No. 2 of 2006 (Jan. 11, 2006), MHA website, but section 4 was not changed.)

The judges, Justice Altamas Kabir, Justice Cyriac Joseph, and Justice S.S. Nijjar added that the prosecution of those crimes committed abroad would be subject to the provisions of India's Criminal Procedure Code, which specifies in article 188 that such prosecutions are to go forward only “with the previous sanction of the Central Government.”(Code of Criminal Procedure, Act No. 2 (Jan. 25, 1974), MHA website; this Code was amended by the Criminal Law (Amendment) Act, id. & by the Code of Criminal Procedure (Amendment) Act, Act No. 25, 2005 (June 23, 2005), but section 188 was not changed.)

The case under consideration concerned a couple that had been married in India and later moved to Botswana. At the time of the marriage, a dowry had been paid to the husband's family. While in Botswana, the wife claimed that she was mistreated and that the husband was demanding further dowry payment. The husband had argued that the trial court in Andhra Pradesh, the couple's home region of India, could not hear the complaint of harassment, dowry demands, and criminal intimidation entered by his wife. The Supreme Court decision, written by Justice Kabir, was that prosecution could go forward for the actions that took place in India, but that the case could only proceed with government approval in relation to crimes committed outside of the country. (THE HINDU, supra; Indian Committing Crime Abroad Can Be Tried in India: SC, THE TIMES OF INDIA (Sept. 5, 2011).)

The judges added the further clarification that the requirement of government approval does not come into play when a complaint is first lodged with officers in India, but rather when the matter goes to trial. (Indian Citizen Committing Crime Abroad Can Be Tried in India, Says Supreme Court, DAILYBHASKAR.COM (Sept. 4, 2011).)