2018 (3) TMI 2049 - HC - Indian Laws

Foreign convictions can be noticed by Indian courts but are not automatically binding or enforceable

Prabodh K. Mehta Versus Charuben K. Mehta

Bombay HC held that foreign convictions can be noticed by Indian courts and authorities but are not automatically binding. While Indian courts can ... Whether conviction of an Indian by a foreign Court for the offence committed in that country can be taken notice of by the Courts or authorities in India? - whether such conviction would be binding on Courts and authorities in India while exercising judicial and quasi judicial powers? HELD THAT:- It appears to be a settled principle of law laid down by English Court that, though the decrees of penal laws of foreign country cannot be enforced in United Kingdom, the laws of foreign countries and especially the countries with which the United Kingdom has friendly relations, cannot only be looked into but on the principle of comity are required to be given due recognition. A valuable right is not only available to Indian citizen but any person if he has been either convicted or acquitted of such offence by the Court of competent jurisdiction. He cannot be tried again while such conviction or acquittal remains in force. Not only that, he cannot also be tried on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof. The provisions of IPC would also apply to any offence committed by any citizen of India in any place without and beyond India. It would also apply to any offence committed by any person on any ship or aircraft registered in India wherever it may be. It would also apply to any offence committed by any person in any place without and beyond India committing offence targeting a computer resource located in India. The Explanation (a) thereof provides that the word 'offence' includes every act committed outside India which, if committed in India, would be punishable under the Code. Conclusion - Foreign convictions can be noticed by Indian courts and authorities. The judgment and order of conviction of a foreign Court for the offence committed in India can be noticed/looked into and recognized by judicial and quasi judicial authorities in India, while exercising their judicial and quasi judicial powers, it cannot be said that the same will be ipso facto binding on such Courts and authorities. If we hold that such a judgment of a foreign Court for an offence committed in that country, is binding on the Courts and authorities in India while exercising their judicial and quasi judicial powers, it will amount to directly or indirectly enforcing the judgment of the foreign Court. The Courts and authorities, while exercising their judicial and quasi judicial powers will have to take a call on the facts and circumstances of each case and take a decision as to what is the effect of such judgment and order of conviction. Petition disposed off. ISSUES: Whether conviction of an Indian by a foreign Court for an offence committed in that country can be taken notice of by the Courts or authorities in India while exercising judicial and quasi-judicial powers. Whether such foreign conviction would be binding on the Courts and authorities in India while exercising judicial and quasi-judicial powers. RULINGS / HOLDINGS: On the first issue, the Court held in the affirmative that the judgment and order of conviction passed by a foreign Court for an offence committed in that country can be taken notice of by the Courts and authorities in India while exercising judicial and quasi-judicial powers. On the second issue, the Court held that such foreign conviction cannot be ipso facto binding on the Courts and authorities in India. Recognition or notice of such conviction does not amount to enforcement, and the effect and weight to be given depends on the nature of proceedings, purpose of consideration, and facts and circumstances of each case. RATIONALE: The Court applied the principle that 'crime is local', recognizing that penal laws and convictions are generally local to the country where the offence is committed and that Courts of one country do not enforce penal laws of another. It distinguished between enforcement and recognition or notice of foreign penal judgments, relying on precedents including the Privy Council in Huntington v. Attrill, English cases such as Banco De Vizcaya, United States of America v. Inkley, and Indian authorities like the Apex Court in Brace Transport Corporation. The Court emphasized the constitutional protection under Article 20(2) of the Indian Constitution and Section 300 of the Criminal Procedure Code, which protect against double jeopardy, underscoring the necessity for Indian Courts to take notice of foreign convictions to prevent multiple prosecutions for the same offence. It noted that ignoring foreign convictions would deprive persons of fundamental rights and could lead to public policy conflicts and breach of international comity. While foreign penal decrees cannot be enforced directly or indirectly by Indian Courts, such judgments may be relevant and require due recognition for purposes such as proof of prior conviction or acquittal. The Court referred to English jurisprudence (e.g., Regazzoni v. K.C. Sethia, Oppenheimer and Cattermole, and Euro-Diam Ltd.) which holds that courts should not enforce foreign penal laws but should take notice of them in the interest of comity and justice. The Court found no binding conflict between the Nagpur High Court's view that foreign penal convictions cannot be noticed and the Division Bench of Bombay High Court's view allowing notice; it preferred the latter as correctly stating the law. The Court clarified that the effect and binding nature of foreign convictions depend on the context and cannot be fixed by a hard and fast rule, requiring case-by-case judicial determination.