LexFATMA BIBI AHMED PATEL versus STATE. OF GUJARAT & ANR.
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[2008] 8 S.C.R. 391 FATMA BIBI AHMED PATEL V. STATE. OF GUJARAT & ANR. (Criminal Appeal No.873 of 2008) MAY 13, 2008 [S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.] , , Penal Code, 1860; s.4/Code of Criminal Procedure, 1973; s. 188: A B Intra-territorial offences - Applicability of Penal Code to C - Jurisdiction of courts in India - Held: Accused is a citizen of Mauritus and has been in India on visas issued by India - Since accused is not resident of India and offence has not been committed within the territorial limit of India, the provi- sion of the Penal Code as also the Code of Criminal Proce- D dure do not apply - The order of Judicial Magistrate tc;iking cognizance of the complaint by her daughter in law against her son and herself was without jurisdiction. A Complaint Petition was filed by the daughter-in-law E of the appellant alleging physical and mental torture by her husband and instigation thereof by the mother-in-law, the appellant. Though all of them were residents of Ku- wait and they were in India on visiting visas, the Chief Judicial Magistrate took cognizance of the complainant ' and directed issuance of summons to appe.llant. The ap~ F pellant challenged the order of trial court as bad in law as complaint was filed by her daughter-in-law without ob- taining sanction in terms of provisions uls 188 Cr.P.C .. The Application was dismissed by the trial judge. The Revi- sion Application filed thereagainst by the appe11ant was G allowed by the Revisional Court. The complainant chal~ lenged the order, which was allowed by the High Court. Hence, the present appeal. 391 H 392 SUPREME COURT REPORTS [2008] 8 S.C.R. A Appellant contended that having regard to the pro- visions contained in S.4 of the Indian Penal Code and S.188 of the Code of Criminal Procedure, the order of the trial judge taking cognizance as against the appellant was bad in law. B Respondent No.2 submitted that having regard to the fact that the appellant having filed an application for quashing the proceedings on the ground of non-compli- ance of the provisions of S.188 of the Code of Criminal Procedure as also having filed another application for c quashing the proceedings which stood withdrawn, the said application was not maintainable. Allowing the appeal, the Court HELD: 1.1 In terms of S.4 of the Indian Penal Code, D 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 E instant case. Section 188 of the Code of Criminal Proce- dure 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 commit- F ted 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. [Para 5] [397 D-F] G • Central Bank of India Ltd. vs. Ram Narain AIR 1955 SC 36 - relied on. 1.2 Appellant is a citizen of Mauritius. She has been visiting India on Visas issued by India. She, thus, indis- H putably is not a citizen of India. She might have been stay- • FATMA BIBI AHMED PATEL v. STATE OF 393 GUJARAT & ANR. ing in India with her relatives as has been contended by A 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 S.4, IPC and S. 188, Cr.P.C., the order of the Judicial Magis- trate taking cognizance must be held to be Htegal. [Para B 5] [3978,C] 2.1 Principles analogous to res judicata.have no ap- plication with regard to criminal cases;.,An ~ccused has a fundamental right in terms of Article 21 of the Constitu- tion of India to be proceeded against only in accordance C with law. [Para 5] [401A] Ajay Agarwal vs. Union of India AIR 1993 SC 1637 - re- ferred to. 2.2 The entire proceedings having been initiated ille- D ga!ly 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} wo
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