Crl.Rev.P.Nos. 192 & 466/2008 Page 1 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL REVISION PETITION NOS. 192 & 466 OF 2008 Reserved on : 22nd September, 2010. % Date of Decision: 22nd December , 2010. N.L. MANCHANDA .... Petitioner in CRP No.192. ASHOK SHETTY .... Petitioner in CRP No.466. Through Mr. Jugal Wadhwa, advocate. VERSUS CENTRAL BUREAU OF INVESTIGATION …..Respondent Through Mr.Vikas Pahwa, Standing Counsel. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? YES 3. Whether the judgment should be reported in the Digest ? YES SANJIV KHANNA, J.: These two criminal revision petitions have been filed by Mr. N. L. Manchanda and Mr. Ashok Shetty for setting aside Order dated 13th November, 2007 directing framing of charges against the petitioners under Section 120-B of the Indian Penal Code, 1860 (hereinafter referred to as IPC, for short) r/w Section 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as P.C. Act, for short). Substantive charge has also been directed to be framed against the petitioner-Mr. N. L. Manchanda under Section 5(1)(d) r/w 5(2) of the P.C. Act. 2. The petitions raise three contentions. Petitioners have questioned the impugned Order on the point of charge, on merits. Secondly, sanction under Section 6 of the Act has been challenged on the ground that it has not been issued by the competent authority and lastly, sanction under Section 188 of Code of Criminal Procedure, 1973 (hereinafter referred to as Crl.Rev.P.Nos. 192 & 466/2008 Page 2 the Code, for short) has been challenged on the ground that it has not been issued by the competent authority as per Government of India (Allocation of Business) Rules, 1961 (hereinafter referred to as the Rules, for short). The first and the third contentions have been seriously argued by the parties. 3. It was submitted on behalf of the petitioners that as per the Rules, sanction should have been obtained from the Ministry of Home Affairs or from the Ministry of Personnel and Training but the sanction under Section 188 of the Code has been obtained from the Ministry of Water Resources. Reference in this regard was made to the following decisions : Mahesh Prasad versus State of Uttar Pradesh, 1954 SCR 965; R. J. Ahluwalia versus State of Delhi, (1970) 3 SCC 451; State of Rajasthan versus A. K. Datta (Dr), (1980) 4 SCC 459 and Gopikant Choudhary versus State of Bihar, (2000) 9 SCC 53. 4. I am not required to deal with this contention as raised in detail as I am of the opinion that sanction under Section 188 of the Code is not required in the present case. Section 188 of the Code reads:- “Sec.188 – 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.” 5. Section 188, by a legal fiction, stipulates that offences committed by citizens of India on high seas or elsewhere i.e. anywhere, even outside Crl.Rev.P.Nos. 192 & 466/2008 Page 3 India, or by any person including a foreign national on any ship or aircraft registered in India can be directed to be dealt with as if the accused had committed them at any place within India at which he may be found. The proviso to Section 188 of the Code puts an embargo that such offences will not be inquired into or tried in India except with the previous sanction of the Central Government. Normally, judicial power of a State extends to punish all offences committed by whomsoever against the municipal laws of the State within the national territory. The State has power to punish all offences committed within the State. Sections 177-186 of the Code deal with the venue or the place of inquiry or trial of crimes. As per Section 177 of the Code, proper and ordinary situs for the trial of a crime is the area of jurisdiction in which acts have occurred or are alleged to constitute the crime. However Code envisages flexibility and there are several exceptions to Section 177. Further, the code is a procedural provision to ensure a fair and just trial and also to bring offenders to justice to meet out punishment to them in accordance with prescribed procedure. 6. In the case of Ajay Aggarwal versus Union of India and others (1993) 3 SCC 609, K. Ramaswamy, J. examined Sections 3 and 4 of the Indian Penal Code, 1860 (hereinafter referred to as the IPC, for short) and observed that Section 4 postulates that IPC will apply to any offence committed by an Indian citizen outside India or by any person on any ship or aircraft registered in India, wherever it may be. Section 3, IPC prescribes for punishment of offences committed beyond territory of India but which by law may be tried within India. The provisions of Section 120A and 120B, IPC were examined with reference to offences of conspiracy. It was observed that criminal conspiracy is an independent offence which is punishable separately. Further criminal conspiracy must be put into motion and thoughts even criminal in character are not crimes till they Crl.Rev.P.Nos. 192 & 466/2008 Page 4 take concrete shape in the form of an agreement to do or cause to be done an illegal act or an act which is not illegal by illegal means. However, it is not necessary that each conspirator must know all details of the scheme and he need not be a participant at every stage. Criminal conspiracy has three elements: (1) an agreement, (2) which must be between two or more persons by whom the agreement is effected and (3) a criminal objective which may be either the ultimate aim of the agreement or may constitute the means or one of the means by which the aim is to be accomplished. It was noted that conspiracy is hatched in secrecy and in many cases it is impossible to adduce direct evidence of the same. The offence of conspiracy is normally proved from inferences drawn from acts or illegal omissions committed by the conspirators in pursuance to a common design. On the question whether conspiracy is a continuing offence, K.Ramaswamy J. has held as under :- “11. The question then is whether conspiracy is a continuing offence. Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy. Yet, in our considered view, the agreement does not come to an end with its making, but would endure till it is accomplished or abandoned or proved abortive. Being a continuing offence, if any acts or omissions which constitute an offence are done in India or outside its territory the conspirators continuing to be parties to the conspiracy and since part of the acts were done in India, they would obviate the need to obtain sanction of the Central Government. All of them need not be present in India nor continue to remain in India. ……..” 7. The Hon‟ble Judge thereafter referred to the judgments, in the case of Lennart Schussler versus Directorate of Enforcement (1970) 1 SCC 152, Abdul Kader Saleh Mohomed versus State AIR 1964 Bom. 133 and some English judgments on the question of conspiracy Crl.Rev.P.Nos. 192 & 466/2008 Page 5 having trans-border repercussions and examined the question of situs or cause of action with reference to the criminal offence of conspiracy. It has been observed : “24. Thus, an agreement between two or more persons to do an illegal act or legal acts by illegal means is criminal conspiracy. If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement. The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to do that illegal act or legal act by illegal means. Conspiracy itself is a substantive offence and is distinct from the offence to commit which the conspiracy is entered into. It is undoubted that the general conspiracy is distinct from number of separate offences committed while executing the offence of conspiracy. Each act constitutes separate offence punishable, independent of the conspiracy. The law had developed several or different models or technics to broach the scope of conspiracy. One such model is that of a chain, where each party performs even without knowledge of the other a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. An illustration of a single conspiracy, its parts bound together as links in a chain, is the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe. In such a case, smugglers, middlemen and retailers are privies to a single conspiracy to smuggle and distribute narcotics. The smugglers knew that the middlemen must sell to retailers; and the retailers knew that the middlemen must buy of importers of someone or another. Thus the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers; and those at the other end knew that it had not begun with their settlers. The accused embarked upon a venture in all parts of which each was a participant and an abettor in the sense that, the success of the part with which he was immediately concerned, was dependent upon the success of the whole. It should also be considered as a spoke in the hub. There is a rim to bind all the spokes together in a single conspiracy. It is not material that a rim is found only when there is proof that each spoke was aware of one another‟s existence but that all promoted in furtherance of some single illegal objective. The traditional concept of single agreement can also accommodate the situation where a well-defined group conspires to commit multiple crimes; so long as all these crimes are the objects of the same agreement Crl.Rev.P.Nos. 192 & 466/2008 Page 6 or continuous conspiratorial relationship, and the conspiracy continues to subsist though it was entered in the first instance. Take for instance that three persons hatched a conspiracy in country A to kill D in country B with explosive substance. As far as conspiracy is concerned, it is complete in country A. One of them pursuant thereto carried the explosive substance and hands it over to third one in the country B who implants at a place where D frequents and got exploded with remote control. D may be killed or escape or may be diffused. The conspiracy continues till it is executed in country B or frustrated. Therefore, it is a continuing act and all are liable for conspiracy in country B though first two are liable to murder with aid of Section 120-B and the last one is liable under Section 302 or 307 IPC, as the case may be. Conspiracy may be considered to be a march under a banner and a person may join or drop out in the march without the necessity of the change in the text on the banner. In the comity of International Law, in these days, committing offences on international scale is a common feature. The offence of conspiracy would be a useful weapon and there would exist no conflict in municipal laws and the doctrine of autrefois convict or acquit would extend to such offences. The comity of nations are duty- bound to apprehend the conspirators as soon as they set their feet on the country‟s territorial limits and nip the offence in the bud. 25. A conspiracy thus, is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalised or done, attempted or even frustrated and vice versa. 26. In K. Satwant Singh v. State of Punjab a Constitution Bench of this Court was to consider as to when Section 188 of the Code would be applicable to a case. The facts therein was that the appellant had cheated the Government of Burma whose office was at Crl.Rev.P.Nos. 192 & 466/2008 Page 7 Simla punishable under Section 420 IPC. The accused contended that the part of the act was done at Kohlapur where payment was to be made and on that basis the court at Simla had no jurisdiction to try the offence without prior sanction of the political agent. Considering that question this Court held that if the offence of cheating was committed outside British India, the sanction would be necessary but on facts it was held that: “... It seems to us, on the facts established in this case, that no part of the offence of cheating was committed by the appellant outside British India. His false representation to the Government of Burma that money was due to him was at a place in British India which induced that Government to order payment of his claims. In fact, he was paid at Lahore at his own request by means of cheques on the Branch of the Imperial Bank of India at Lahore. The delivery of the property of the Government of Burma, namely, the money, was made at Lahore, a place in British India, and we cannot regard, in the circumstances of the present case, the posting of the cheques at Kohlapur either as delivery of property to the appellant at Kohlapur or payment of his claims at Kohlapur. The entire argument founded on the provisions of Section 188 of the Code, therefore, fails.” Far from helping the appellant the ratio establishes that if an offence was committed in India the need to obtain sanction under Section 188 is obviated. In Purushottamdas Dalmia v. State of W.B. this Court, when the appellant was charged with offences punishable under Sections 120-B, 466 and 477, the appellant contended that offence of conspiracy was entered into at Calcutta, the offences of using the forged documents was committed at Madras. Therefore, the court at Calcutta had no jurisdiction to try the offence under Section 471 read with Section 466 IPC, even though committed in pursuance of the conspiracy and in course of the same transaction. This Court held that the desirability of trying the offences of all the overt acts committed in pursuance of a conspiracy together is obvious and Sections 177 and 239 of the Code leave no manner of doubt that the court which has the jurisdiction to try the offence of criminal conspiracy has also the jurisdiction to try all the overt acts committed in pursuance of it even though outside its territorial jurisdiction. In L.N. Mukherjee v. State of Madras it Crl.Rev.P.Nos. 192 & 466/2008 Page 8 was further held that the court having jurisdiction to try the offences committed in pursuance of the conspiracy, has also the jurisdiction to try the offence of criminal conspiracy, even though it was committed outside its territorial jurisdiction. This view was further reiterated in R.K. Dalmia v. Delhi Administration and Banwari Lal Jhunjhunwala v. Union of India. Therein it was held that the court trying an accused for offence of conspiracy is competent to try him for offences committed in pursuance of that conspiracy irrespective of the fact whether or not overt acts have been committed within its territorial jurisdiction. The charges framed therein under Section 409 read with Sections 120-B, 420 IPC and Section 5(1)(D) read with Section 5(2) of the Prevention of Corruption Act were upheld. 27. Thus we hold that sanction under Section 188 is not a condition precedent to take cognizance of the offence. If need be it could be obtained before trial begins. Conspiracy was initially hatched at Chandigarh and though itself is a completed offence, being continuing offence, even accepting appellant‟s case that he was at Dubai and part of conspiracy and overt acts in furtherance thereof had taken place at Dubai and partly at Chandigarh; and in consequence thereof other offences had ensued, since the offences have been committed during the continuing course of transaction culminating in cheating PNB at Chandigarh, the need to obtain sanction for various offences under proviso to Section 188 is obviated. Therefore, there is no need to obtain sanction from Central Government. The case may be different if the offences were committed outside India and are completed in themselves without conspiracy. Perhaps that question may be different for which we express no opinion on the facts of this case. The ratio in Fakhrulla Khan has no application to the facts in this case. Therein the accused were charged for offences under Sections 420, 419, 467 and 468 and the offences were committed in native State, Mysore. As a result the courts in British India i.e. Madras province had no jurisdiction to try the offence without prior sanction. Equally in Verghese case the offences charged under Section 409 IPC had also taken place outside British India. Therefore, it was held that the sanction under Section 188 was necessary. The ratio in Kailash Sharma case is not good at law. The appeal is accordingly dismissed.” Crl.Rev.P.Nos. 192 & 466/2008 Page 9 8. R.M. Sahai, J. (as his lordship then was) in his concurring judgment has held that the language of Section 188 of the Code is plain and simple and it operates when an offence is committed by a citizen of India outside the country. It does not apply when an offence is committed in India. The object behind the proviso to Section 188 of the Code is to provide safeguards to an Indian citizen against unwanted harassment when it is alleged that he has committed an offence outside India. The proviso which requires sanction begins with a non-obstante clause and is mandatory but would come into play only when the principal clause is applicable i.e. when an offence is committed outside the country. It was noticed that the appellant therein had raised two contentions viz. he was in Dubai when the offence was committed and the Bill of Lading and Exchange were prepared and were submitted to the concerned bank in Dubai and payments were also received at Dubai. However, the contention of the appellant therein was rejected after observing that any offence or any act for the purpose of IPC normally means an act or omission made punishable by any law for the time being in force. None of the offences for which the appellant therein was charged had, „residence‟ as one of the ingredients. Thus, residence of the accused was not decisive but what was decisive was the situs or the place of the commission of the offence. It was accordingly observed as under:- “31. What has to be examined at this stage is if the claim of the appellant that the offence under Section 120-B read with Section 420 and Section 471 of the IPC were committed outside the country. An offence is defined in the CrPC to mean an act or omission made punishable by any law for the time being in force. None of the offences for which the appellant has been charged has residence as one of its ingredients. The jurisdiction to inquire or try vests under Section 177 in the court in whose local jurisdiction the offence is committed. It is thus the commission of offence and not the residence of the accused which is decisive of jurisdiction. When two or more persons agree to do or Crl.Rev.P.Nos. 192 & 466/2008 Page 10 cause to be done an illegal act or an act which is not illegal by illegal means such agreement is designated a criminal conspiracy under Section 120-A of the IPC. The ingredients of the offence are agreement and not the residence. Meeting of minds of more than two persons is the primary requirement. Even if it is assumed that the appellant was at Dubai and he entered into an agreement with his counterpart sitting in India to do an illegal act in India the offence of conspiracy came into being when agreement was reached between the two. The two minds met when talks, oral or in writing, took place in India. Therefore, the offence of conspiracy cannot be said to have been committed outside the country. In Mobarik Ali Ahmed v. State of Bombay this Court while dealing with the question of jurisdiction of the courts to try an offence of cheating committed by a foreign national held that the offence of cheating took place only when representation was made by the accused sitting in Karachi to the complainant sitting in Bombay. The argument founded on corporeal presence was rejected and it was observed: “What is, therefore, to be seen is whether there is any reason to think that a foreigner not corporeally present at the time of the commission of the offence does not fall within the range of persons punishable therefor under the Code. It appears to us that the answer must be in the negative unless there is any recognised legal principle on which such exclusion can be founded or the language of the Code compels such a construction.” If a foreign national is amenable to jurisdiction under Section 179 of the CrPC an NRI cannot claim that the offence shall be deemed to have been committed outside the country merely because he was not physically present. 32. Preparation of bill of lading at Dubai or payment at Dubai were not isolated acts. They were part of chain activities between the appellant and his associates with whom he entered into agreement to cheat the bank at Chandigarh. Any isolated act or omission committed at Dubai was insufficient to constitute an offence. The illegal act of dishonestly inducing the bank at Chandigarh was committed not by preparation of bill at Dubai but its presentation in pursuance of agreement to cheat. The submission thus founded was on residence or on preparation of bills of lading or encashment at Dubai are of no consequence. Crl.Rev.P.Nos. 192 & 466/2008 Page 11 33. Nor is there any merit in the submission that even part of the offence would attract Section 188 as the section operates when offence is committed outside India. An offence is committed when all the ingredients are satisfied. The section having used the word offence it cannot be understood as part of the offence. Section 179 CrPC empowers a court to try an offence either at a place where the offence is committed or the