By Tanishk Goyal
Introduction
The extraterritorial application of Indian statutes abroad is something which has been the subject matter of debate for quite some time. To this effect, Section 4 of the Indian Penal Code (‘IPC’), and Section 188 of the Code of Criminal Procedure (‘The Code’), provide for the extra territorial application of Indian laws on crimes committed by Indian citizens abroad, and on crimes committed by persons on any ship or aircraft registered in India. However, the problem arises when such laws having extra-territorial application are sought to be enforced and the investigation requires the fugitive to be arrested and brought before the court. Since the courts have made it abundantly clear that they are not concerned with the procedure which led to the accused being present in court, and it wouldn’t matter to them, even if the accused was brought to court involuntarily or under illegal arrest, there arises a question as to whether there should be a check on the arrests made on foreign soil by the Indian authorities, with a view to curb illegal arrests which are a violation of customary international law.
Against the backdrop of the dichotomy which Indian jurisprudence identifies between inquiry and investigation, where, a Central Government sanction is required for the former, but is not required for the latter, I attempt to address how such distinction affects India’s obligations under customary international law in general, and why there is a pressing need to require sanctions for conducting investigations abroad. In order to do so, I apprise the reader of the dichotomy which exists between inquiry and investigation under Indian Jurisprudence, in Part I. In Part II, I argue how the conducting of investigations abroad requires police powers, which if exercised without sanction, is a violation of State sovereignty, and thus, not warranted under Customary International Law. In Part III, against the backdrop of the judgment of Mohammed Shameer Ali v. State of Kerala, I argue for a framework which mandates an expedited grant/refusal of sanctions by the Central Government for conducting investigations abroad, so that the illegal arrests aboard are kept under a check, while concurrently ensuring that the investigating authorities are not totally denuded with the power of arrest, and the process is not rendered redundant, merely for want of a sanction.
The dichotomy between inquiry and investigation under Indian Jurisprudence
On 17th August, 2019, The Kerala High Court reiterated settled law that there was no requirement to obtain sanction from the Central Government for arresting an accused during investigation which is going on for an offence committed outside India. Amongst other things, the court relied on the rationale, that mandating a sanction, even for the conducting of investigations abroad would place an enormous and unrealistic burden on the Centre. It is pertinent to note here, that the court, while arriving at this conclusion referred to a variety of judgments which laid down the dichotomy which exists between inquiry and investigation under Indian law.
One of the fundamental cases which was relied on was the case of Muhammed v. State of Kerala, where the court had held that the words ‘deal with’ essentially include investigation, apart form inquiry and trial. Furthermore, since ‘inquiry’ and ‘trial’ have been explicitly excluded from the main body by virtue of the proviso, this essentially implies that ‘investigation’ by the police in a foreign soil shall not require any previous sanction of the Central Government. This ruling was reiterated in the case of Muhammard Rafi vs State of Kerala, where it was stated that the bar in the proviso of Section 188 of the code only applied to ‘inquiries’ and ‘trials’ and not to investigations.
Similarly, in the case of Thariyath v. Fr. George, the court ruled that, as opposed to an investigation, where all the steps are taken by a police officer, an inquiry is essentially a proceeding which is either conducted by a Magistrate or a Court, and included everything done by a Magistrate except for a trial.
It was also held in the case of V. S Vajjya v. D. Sriroopa Madapati, that the word ‘inquiry’ was restricted only to the proceedings before the Magistrate before trial, and it could in no way include any ‘investigation’ by the police. The judgment ruled that inquiry begins after the charge sheet has been laid down by the police before the Magistrate. This essentially meant that the bar in the proviso to section 188 of the code would only apply once the charge sheet has been filed, and anything done by the police before making such charge sheet, would not require any kind of sanction from the Central Government.
This distinction between ‘inquiry’ and ‘investigation’ under Indian law, for the purpose of sanctions is inherently problematic, in as much as, while it purports to protect the Centre from an unnecessary administrative burden, it actually opens it up to significant exposure, as the absence of sanctions for conducting investigations, coupled with the mandate to effectuate an arrest, irrespective of the due process requirement, incentivises illegal arrests which are a blatant violation of India’s obligations under customary international law.
Using Police Powers Abroad: The imperative need for Getting Sanctions for investigations
Any police officer of India does not enjoy police powers in a foreign country. The powers to investigate, arrest or detain, if exercised without express consent of the country in question, would amount to a breach of its sovereignty under international law. The problem arises because the law does not mandate sanctions for the investigating agencies, and such agencies cannot enjoy unfettered discretion in conducting investigations abroad. This gap was bridged when the Ministry of Home Affairs came up with a set of comprehensive guidelines in 1996, especially for police officers sent abroad for investigating. However, most of the agencies were either not aware of these guidelines, or they did not follow it. This resulted in a lot of administrative inefficacies in conducting investigations.
The guidelines were then revised in 2007. The investigation agencies, as per the 2007 guidelines, now require the approval of the International Police Cooperation Cell of The Central Bureau of Investigation, and the Ministry of Home Affairs (‘MHA’) before conducting investigations aboard. Moreover, the granting of Police Powers and initiating investigations abroad requires the Central Government to forward a Letter of Request, as per the provisions of Section 166A of the code, which more often than not, is done under the ambit of the Mutual Legal Assistance Treaty. However, since these regulations are merely in the form of guidelines, their compliance cannot be guaranteed, as they are prone to be flouted or disregarded as had happened with the guidelines of 1996.
Customary International Law disapproves illegal arrests. This is evidenced by the subsequent reaction of the international community, after the decision in the case of United States v. Alvarez-Machain, where the court held that the forcible abduction of the accused could not be a suitable ground to prevent him from going to trial in the United States. After the case of Om Hemrajani vs State of U.P, Indian Jurisprudence is also proceeding along the same lines. For instance, even if the MHA guidelines are flouted, and an illegal arrest is made abroad by the police, the courts would still be competent to try the individual by virtue of the Om Hemrajani judgment. It is also pertinent to note here that, neither does the breach of the MHA guidelines entail any penal provisions, nor does it preclude the jurisdiction of the courts to try the case. This essentially means, that a significant breach of a State’s sovereignty, is in fact condoned by India, which is a breach of its obligations under customary international law.
Critiquing Muhammad Shameer Ali v. State of Kerala: Making a Case for Mandating Sanctions for Investigations under Section 188 of the Code
The Kerala High Court’s ruling was that the proviso to Section 188 of the Code would only hit those inquiries which came under section 2(g) of the code, and were in the “post cognizance” stage. The rationale behind this ruling was twofold.
Firstly, the court believed that if sanctions are put on the investigation process, it would lead to a situation where the investigation agency has been ripped off its powers, and there is no effective progress they can make in the case. Secondly, the court held that if the arguments of the petitioner were accepted, i.e, if sanctions were mandated even for the investigation by the police, it would place an unnecessary burden on the Centre, which will have to take decisions on the granting of sanctions even before the effectuation of the arrest of the accused.
While I agree with the Court’s rationale, that mandating sanctions for the investigation process would considerably dilute the powers of the investigation agencies, it is also pertinent to note that the current jurisprudence in India, on extra-territorial arrests, in fact does incentivise illegal arrests, by such investigation agencies and the need of the hour is to have certain statutory inroads which clear this murky jurisprudence, so that India can maintain its international obligations.
In order to ensure that India’s international obligations are prevented from being violated while also ensuring that the the powers of the investigation agencies are not diluted, I would suggest the formation of a permanent body under the Home Ministry which shall be mandated to give its opinion on the grant/refusal of such sanctions to the Home Ministry within a period of 2 weeks, after having conducted a minimum standard test (explained later in the paper) of the case put forward by the investigation agencies. The body can be in direct coordination with the Interpol and the the International Police Cooperation Cell for a quicker response rate. However, one may argue that this may lead to arbitrariness in the granting of sanctions by the State, thus leaving too much discretion in the hands of the government in deciding which case requires a previous sanction for investigation and which does not. Therefore, in order to ensure that a situation does not exist where the powers of sanction may be used as a tool by the State, to shield fugitives from judicial scrutiny, certain minimum standards which lend a sense of objectivity to the entire process, need to be identified.
These minimum standards, could inter-alia, depend on the nature of the evidence purported to be collected and the precariousness or gravity of the crime concerned. This essentially translates to the fact, that if the case made out by the investigation agencies satisfies the minimum standards test, the Home Ministry shall be mandated to grant its sanction for the investigation. This would concurrently ensure that the rationale behind requiring such sanctions in the first place is adhered to in as much as the test would filter out any frivolous cases aimed at persons and as such prevent their undue harassment by the police. In the event the case made out by the investigation agencies does not satisfy the minimum standards test, it would be up to the discretion of the Home Ministry to grant or refuse such sanction. In other words, the discretion of granting or refusing sanctions would lie with the Home Ministry only in situations where the the case made out by the investigation agencies does not satisfy the minimum standards test. This would ensure that while such delegation to the permanent body under the Home Ministry relieves the Central Government of the unnecessary burden as was highlighted in the case of Muhammad Shameer Ali v. State of Kerala, it also keeps a check on illegal arrests, and targeted frivolous investigations at the same time.
[The author is a student at the West Bengal National University of Juridical Sciences, Kolkata.]
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