The Oxford English Dictionary defines conviction as ‘a formal declaration by the verdict of a jury or the decision of a judge in a Court of law that someone is guilty of a criminal offence.’ A Court of law convicts a person or holds him/her guilty only after evaluating the facts, evidences placed on record and the merits of the case. One question that recently arose in a case was whether a conviction of an Indian by a Foreign Court for the offence committed in that country can be taken note of by the courts or authorities in India?
Significantly, the Hon’ble Full Bench of the Bombay High Court while delivering a decision in the case of Prabodh K. Mehta v. Charuben K. Mehta on March 1, 2018, held that ‘Conviction of an Indian citizen by Foreign Court for the offence committed in that country can be taken note of by the Courts or Authorities in India. However, it cannot be said that the same will be ipso facto binding on such courts and authorities in India and they must exercise their discretion considering facts of the case and variety of factors involved therein.’
The Hon’ble Court clearly explained in its judgement that the consideration in a case would always be independent and will always be on a case-to-case basis, only after analyzing the effects of the foreign judgement and order of conviction.
Facts of the case
- In January 15, 2007, Prabodh K. Mehta (hereinafter referred to as ‘the Appellant’) was appointed as a trustee of the Lilavati Kirtilal Mehta Medical Trust for a period of 5 years.
- A Court in Belgium allegedly convicted the Appellant of an offence of moral turpitude.
- On April 28, 2008, Charuben K. Mehta (hereinafter referred to as ‘the Respondent’) filed an Application, under Section 41D of the Maharashtra Public Trusts Act, 1950, before the learned Joint Charity Commissioner, Greater Mumbai, seeking removal/dismissal/suspension of the Appellant as a trustee on the ground that he was allegedly convicted of an offence involving moral turpitude by a Court in Belgium.
- However, on October 18, 2011, through a resolution passed by the trustees of the said trust, the Appellant was again appointed as a trustee for a further period of 5 years.
- On March 8, 2013, the Learned Joint Charity Commissioner allowed the said application filed under Section 41D thereby removing the Appellant from the said trust for the remaining tenure. The reasons for the order of the City Civil Court was that the Respondent had proved that the Appellant was convicted of an offence involving moral turpitude.
- On July 20, 2013, an appeal was filed before the Division Bench of the Bombay High Court. The basis of the appeal was that the Court in Belgium later pardoned the Appellant and thus, his criminal record stood erased.
- The Division Bench was of the view that the crime committed by the Appellant in Belgium during his tenure as a trustee in India could not be ignored, since its own laws on the subject were also very stringent.
- The question of law was referred to the Hon’ble full bench and with the consent of the parties the question was reframed as under.
- Whether the 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 while exercising their judicial or quasi-judicial powers?
- As to whether such a conviction would be binding on the Courts and authorities in India while exercising judicial and quasi-judicial powers?
- It was contended that the judgment and order of conviction by a Foreign Court for the offence committed in that country cannot even be looked into or no notice should be taken of the conviction, by the Indian Courts.
- In support of its contention, it relied upon decisions, namely Govind Kesheo Powar vs. State of Madhya Pradesh and others (Nagpur High Court) and Union of India and others vs. Susanta Kumar Mukharjee (Calcutta High Court) and various foreign decision from UK i.e. Kings Bench Division in Banco De Vizcaya vs. Don Alphons De Borbon, Queens Bench in United States of America vs. Inkley, Kings Bench in Raulin vs. Fischer etc.
- Further, it was submitted that it has been consistently held that the Court of one country would not directly or indirectly execute decree of the Court of another country and if the Court of one country is permitted to take note of decree of the Court of another country, it will amount to nothing else but indirect enforcement of decree of the Foreign Court.
- It was submitted that though the judgment and order of conviction passed by the Foreign Court may not be binding on the Courts in India, the same, however, could be noticed and recognized while exercising judicial or quasi-judicial powers by the Courts and authorities as the case may be in India.
- It further submitted that that, enforcement of a judgment of Foreign Court is distinct from recognizing or noticing the said judgment by the Courts and authorities in India.
- Relying on the judgement in the case of Indian and General Investment Trust Ltd. v. Sri Ramchandra Mardaraja Deo, Raja of Khalikote, the Defendants contended that the Indian Courts are not bound to follow the rules of private international law, as are laid down by the English Courts.
- Citing another judgement in the case of State (NCT of Delhi) vs. Brijesh Singh and Ors., the Defendants stated that the principle that “crime is local” cannot be stretched to such an extent that the judgment and order of conviction by Foreign Court even cannot be looked into by the Courts in India.
- The Court observed that the Appellants have cited several English Judgements, however, reference to all of them was not necessary according to the Court.
- The ratio of the judgments cited by the Appellants as noted by the Court was that if a decree passed under penal law by Foreign Court were sought to be enforced directly or indirectly through British Courts, the same would not be permissible. It is on a principle that, Courts of no country execute penal laws of another.
- Referring to the decision in the case of Avinash Kumar Bhasin vs. Air India, Bombay and the judgment of the Apex Court in Brace Transport Corporation of Monrovia, Bermuda vs. Orient Middle East Lines Ltd, Saudi Arabia and others, the Court observed that an Award, if it has to be enforced, should necessarily be recognized. However, the converse is not necessary. The recognition may ipso facto be not enforceable.
- After analyzing the judgements cited by both the parties, the Court observed 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.
- The Hon’ble Full Bench referred to Article 20(2) of the Constitution, Section 300 of Criminal Procedure Code as well as Section 4 of the Indian Penal Code. Article 20 (2) of the Constitution guarantees fundamental right to the citizen that he shall not be prosecuted and punished for the same offence more than once. Section 300 of the Criminal Procedure Code provides that a person who is once tried by a Court of competent jurisdiction for an offence and acquitted for such offence while such conviction or acquittal remains in force, would not be tried again for the same offence. Further, Explanation (a) of Section 4 of the Indian Penal Code provides that the word “offence” includes every act committed outside India which, if committed in India, would be punishable under the Code.
- The Hon’ble Full Bench held that accepting the contentions of the Appellant may even have 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. In addition, it would be against the public policy and principle of comity of Nations.
- Regarding the question of binding nature of the conviction by a Foreign Court, the Court declined to make it binding. It was of the view that making it binding will amount to directly or indirectly enforcing the judgment of the Foreign Court.
Thus, the Court held that 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, however it cannot be said that the same will be ipso facto binding on such courts and authorities. 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. This will depend on 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