The Bombay High Court, on Thursday, ruled that while a judgment and order of conviction of a foreign Court against an Indian citizen can be looked into by authorities and Courts in India, such judgment would not be ipso facto binding on such authorities.
“We are of the considered view that, though 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,” the Bench comprising Justice B.R. Gavai, Justice K.R. Sriram and Justice B.P. Colabawalla observed.
The Court was answering a reference made to it in 2013, while dealing with a Petition filed by Mr. Prabodh Mehta, trustee of multi-speciality Lilavati Hospital in Mumbai. The question that it was now considering was:
“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 and as to whether such conviction would be binding on Courts and authorities in India while exercising judicial and quasi-judicial powers?”
The Court noted that the single Judge had noticed a conflict in the view taken by Division Benches of the Court in the cases of Avinashkumar Bhasin vs. Air India, Bombay and Govind Kesheo Powar vs. State of Madhya Pradesh and others.
In Avinashkumar’s case, the Court held that such a conviction by a Court of one country can be taken notice of in another country for any purpose whatsoever. The Court in Govind Kesheo Powar had opined that the “effect of a crime committed by a person does not travel beyond the State in which it was committed”.
At the outset, making reference to various English judgments, the Court observed, “…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”
It then opined that if the judgment and order of conviction recorded by a foreign Court, for an offence committed in the foreign country cannot be looked into, “it may have even an effect of depriving an Indian citizen of the fundamental right available to him under Article 20(2) of the Constitution and to any person under Section 300 of the Code of Criminal Procedure Code”.
Further, while considering the two conflicting judgments before it, the Court noted that in Govind Kesheo Powar’s case, the question whether the judgement and order of conviction recorded by a foreign Court can be looked into by Courts in India did not fall for consideration before the High Court. It observed,
“Insofar as Judgment of Division Bench of this Court in the case of Avinashkumar Bhasin (cited supra) is concerned, we find that the question, as to whether the judgment and order of conviction can be taken notice in India for any other purposes directly fell for consideration. As such, we do not see any apparent conflict in the two views. However, in the light of discussion hereinabove, we find that the view taken by the Division Bench of this Court in Avinashkumar Bhasin (cited supra) lays down the correct position of law.”
The Court then ruled that while such judgment and order of conviction can be taken note of, it would not have a binding effect on Courts in India. It explained,
“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. What is the effect of such order of conviction, would depend upon variety of factors such as, nature of the proceedings, purpose for which the said order of conviction needs to be taken into consideration, nature of conviction and effect thereof on the proceedings, nature of consequences of the ultimate decision to be taken in the said proceedings, are some of the factors which will have to be taken into consideration while deciding as to how much and what weightage has to be given to such judgment and order of conviction.
We are of the FA-922-13.sxw considered view that, no hard and fast rule can be laid for that purpose. 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.”