S. 337 BNSS | Registration Of Criminal Case In Foreign Country Doesn't Bar Prosecution In India On Same Facts: Orissa High Court

The Orissa High Court has held that mere registration of a criminal case against a person in a foreign jurisdiction shall not be a hindrance for proceeding against him in India on the basis of same set of facts or for offence arising out of same transaction.While deciding a bail plea involving certain financial irregularities partly committed in Zambia, the Bench of Justice Gourishankar Satapathy held that registration of a criminal case or issue of warrant against the petitioner is not a bar to proceed against him under Indian Penal provisions as the same does not constitute 'double jeopardy'. In the words of the Judge –“The aforesaid exception as provided in Sec.337(6) of BNSS makes it very clear that if the person who is an Indian citizen has committed an offence beyond India, he can still be prosecuted in India, as if the offence had been committed within India. Furthermore, the bar as aforesaid will be applicable only when a person has been tried by a Court competent jurisdiction for an offence and has been convicted or acquitted of such offence and he is going to be tried again for such offence, but in this case, the petitioner is yet to be prosecuted in any foreign country, although a criminal case has been registered against him in the country of Zambia.” The petitioner was accused of setting up his own company in Zambia to commit a large-scale financial fraud upon his employer company. By way of such fraudulent act, the petitioner was successful in obtaining illegal refund. He further transferred USD 1,00,000/- from the employer company's account to his fraudulent company's account.It was also alleged that from 11.04.2025 to 25.04.2025, the petitioner withdrew USD 46,000/- in cash from his company's bank account and remitted USD 69,000/- to his account maintained at the Jajpur Branch (Odisha) of a private bank and transferred INR 20,00,000/- from his ICICI bank account to his SBI account, Kalpada Branch, Jajpur. He was further accused of stealing certain amount of cash and other valuable materials of the employer company.On the basis of information provided by the Director of the employer company, an FIR was registered under Sections 314/303(2)/316(4)/318(4) of Bharatiya Nyaya Sanhita (BNS). A corresponding CT case was registered at the Court of JMFC, Baripal, Jajpur. The petitioner sought bail from the Sessions Judge, Jajpur, but in vain. Therefore, he approached the High Court under Section 483 of the BNSS.During the course of hearing, an interesting facet of law came up for consideration when the Court was informed that another FIR has been lodged against the petitioner on 26.04.2025 at Emmasdale P.S., District-Lusaka, Republic of Zambia and the case is pending before the Chief Resident Magistrate, Sub-ordinate Court, Economic & Financial Crimes Division for commission of an offence of “Theft by Servants” under Section 278 of the Penal Code, Ch-87 of the Laws of Zambia. It was an admitted position that a part of the offence was committed within the jurisdiction of Zambia and another part was committed in India. It also came to light that the jurisdictional Magistrate of the Republic of Zambia has issued a warrant of arrest against the petitioner. Against this backdrop, the question which arose for consideration was whether the jurisdictional Indian Court can proceed against the petitioner when a foreign Court is also seized of the matter.Justice Satapathy answered the above question in affirmative. He opined that since Section 337(6) of the BNSS prescribes that nothing in that Section shall affect the provision of Section 26 of the General Clauses Act, 1897 or Section 208 of the BNSS, the principle of 'double jeopardy' shall not be applicable in such cases. Notably, Section 208 of the BNSS deals with the procedure when an offence is committed outside India which inter alia says that when an offence is committed outside India by a citizen of India, whether on the high seas or elsewhere, he may be dealt with in respect of such offence as if it had been committed at any place within India. Similarly, Section 337 of the BNSS bars trial for the second time against a person for the same offence once he is convicted or acquitted.“Similarly, Article 20(2) of the Constitution of India says that no person shall be prosecuted and punished for the same offence more than a once. The aforesaid exception as provided in Sec.337(6) of BNSS makes it very clear that if the person who is an Indian citizen has committed an offence beyond India, he can still be prosecuted in India, as if the offence had been committed within India,” he added.Besides that, the Court was of the view that the bar will be applicable only when a person has been tried by a competent Court and has been convicted or acquitted of an offence. However, in this case, the petitioner is yet to be convicted/acquitted in Zambia. Therefore, the bar under Section 337 BNSS or Article 20(2) shall not be applicable.“Besides, the aforesaid bar will not be ...

S. 337 BNSS | Registration Of Criminal Case In Foreign Country Doesn't Bar Prosecution In India On Same Facts: Orissa High Court

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