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 such conviction would be binding on courts and authority in India while trying such person for such offence in India?” asked the Bombay High Court as it referred the case to its larger bench while stressing that the point was of “wide public importance”. The HC observed none of the provisions of Indian courts are permitted to take cognizance of the conviction of an offence by an Indian committed outside India.
Prabodh Mehta, trustee of multi-specialty Lilavati Hospital, was removed from the post following an order of Joint Charity Commissioner on the complaint of Mehta’s relative and trustee Charuben. The JCC in March 2013 had acted on the ground that he was convicted for an offence of moral turpitude in Belgium as alleged in the Charuben’s complaint.
Thereafter, even the City Civil Court rendered a finding that Charuben had proved that Mehta was convicted of an offence involving moral turpitude. Aggrieved by the Civil Court’s order Mehta filed an appeal and maintained that the foreign court had “erased his criminal record” and (he) is “clean towards the outside world”.
Senior Counsel Iqbal Chagla, who appeared for Mehta, submitted that the offence of moral turpitude alleged by Charuben should have been in the capacity of the trustee or in relation to the trust, and conviction arising out of it, should have taken place in India and not anywhere to have attracted Section 41D of the Maharashtra Public Trusts Act.
Citing a judgment of the Nagpur High Court Chagla submitted that even if the HC comes to the conclusion that there would be no effect of rehabilitation/pardon to Mehta granted by Court in Belgium, the authorities under the Maharashtra Public Trusts Act, 1950 “can not take notice of such alleged conviction” while deciding the application for removal of the trustee under the said Act.
The senior lawyer also said only if such offence would have been committed in India subject to the provisions of the Maharashtra Public Trusts Act, cognizance of such act could be taken. The Nagpur High Court had taken a view that the conviction of an Indian beyond the territory of Indian cannot be taken notice of by an Indian Court.
Appearing for Charuben, senior counsel Mahesh Jethmalani contested the submission of Chagla arguing that such a judgment cannot be referred to as Nagpur High Court was then part of Madhya Pradesh.
Jethmalani cited a judgment of Bombay HC’s division bench It submitting that Mehta had committed very serious offences in Belgium and such offence and the orders passed by the Belgium court against the appellant cannot be ignored by this court. The HC division bench held that if an occasion arises, the nature of the crime though springing from a penal law devoid of extra territorial effect, cannot be ignored by a state particularly if its own laws are also stringent and its public policy is also aimed at curbing such crimes. Jethmalani said the HC division bench judgment is binding on the single judge and applies to the facts of this case. Issue is thus not required to be referred to larger bench, he added. “In my view Mr Chagla is right in his submission that in none of those provisions Indian Courts are permitted to take cognisance of the conviction of an offence by an Indian committed outside India… In view of the aforesaid reasons, in my view it would be appropriate that this question which is of wide public importance and in view of the conflict between the judgment of the Nagpur High Court and this court, the said issue be considered by the larger bench,” ruled Justice Dhanuka. Eminent criminal lawyer Amit Desai told The Indian Express that although the issue before the Court is narrow, “undoubtedly” a lager bench judgment is going to settle the law and set a precedent. “I have not come across any judgment in this regard. The issue is narrow and the only question is to what extent an Indian Court can take cognizance of orders of a foreign court. The principle of law has to be settled,” said Desai. Retired Bombay HC Justice and senior lawyer who now practices in the Supreme Court, B H Marlapalle, said one cannot totally disregard the law of the other country in case of civil action. “Section 44 (A) of the Code of Civic Procedure pertains to execution of decrees passed by foreign courts on the condition of a treaty between countries. Now it is upon the discretion of the Chief Justice to decide and adjudicate upon the matter,” he said.
Written by Aamir Khan | Mumbai | aamir.khan@expressindia.com
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