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FA-922-13.sxw
BDPSPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.922 OF 2013
IN
CHARITY APPLICATION NO.10 OF 2013
WITH
FIRST APPEAL NO. 923 OF 2013
IN
CHARITY APPLICATION NO.13 OF 2013
Prabodh K. Mehta )
15, Usha Kiran, 11th floor, )
Carmichael Road, Mumbai-400026 ) ...Appellant.
V/s
Charuben K. Mehta )
15, Usha Kiran, 11th floor, )
Carmichael Road, Mumbai 400026 ) ….Respondent.
Shri Rafique Dada, Senior Counsel along with Mr. Prateek Saksaria,
Shri Dhirendra Sinha, Shri Saket Mone, Shri Ashish Gatagat i/by M/s
Vidhi Partners for the Appellant.
Shri Aabad Ponda along with Shri Dakshesh Vyas, Shri Abhishek
Prabhu and Shri Yash Mehta i/b Thakore Jariwala & Associates for the
Respondent.
---
CORAM: B. R. GAVAI,
K. R. SHRIRAM &
B. P. COLABAWALLA, JJ.
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behalf of the Appellant in the First Appeal and Shri Ponda, learned
elaborate arguments have been advanced by both Shri Dada and Shri
Ponda, we will only deal with such of the arguments that are
erstwhile Nagpur High Court in the case of Govind Kesheo Powar vs.
State of Madhya Pradesh and others 1, lays down the correct position of
law. He submitted that, the view taken by the Nagpur High Court is
in tune with the view taken by the House of Lords in Huntington vs.
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vs. W. L. Exner Limited6, Ogden vs. Folliott7, Wolff vs. Oxholm8 and
Calcutta High Court in Union of India and others vs. Susanta Kumar
been consistently held that the Court of one country would not directly
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Monrovia, Bermuda vs. Orient Middle East Lines Ltd, Saudi Arabia and
Bench in Ralli Brothers vs. Compania Naviera Sota Y Aznar 11, of the
Nothman and Cooper (Inspector of Taxes) 14, and of the Court of Appeal
the Judgment of the learned Single Judge of the Calcutta High Court
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in the case of Indian and General Investment Trust Ltd. vs. Sri
Indian Courts are not bound to follow the rules of private international
law, as are laid down by the English Courts. He submits that, Indian
Courts are free to evolve their own rules of private international law
case of State (NCT of Delhi) vs. Brijesh Singh and Ors. 17, submits that
submits that, the view taken by a Division Bench of this Court in the
case of Avinashkumar Bhasin vs. Air India, Bombay 18, lays down the
binding on the Courts in India, the same can be very well looked into
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Single Judge, would reveal that the learned Single Judge has found
Nagpur High Court in the case of Govind Kesheo Powar (cited supra)
Single Judge found that, in order to resolve the conflict between the
Court, would be binding on the learned Single Judge of this Court and
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Council in the said case reiterated the well recognized principle that
crimes are local and therefore they are only cognizable and punishable
another. However, in the said case, after considering the factual and
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municipal law.
13] The King's Division Bench in the case of Banco De Vizcaya (cited
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The principle laid down by the Privy Council in the case of Huntington
vs. Attrill (cited supra) has been reiterated and followed by the King's
Lordships that, the Plaintiffs were not asserting their own rights at all
but that of the Spanish State. As such, judgment in their favour would
involve execution of foreign penal law. It was found that, the Plaintiffs
are not asserting their contractual rights as they originally existed but
the defendant, after having obtained the permission from the district
defendant in the amount of the bond plus interest, issued a High Court
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case of Raulin vs. Fischer19 have held that, where an offender has been
convicted and also saddled with damages for the injury may be
Court.
view taken in the case of Huntington vs. Attrill (cited supra) wherein
breach of penal laws of the other country, Courts would not enforce
the same. Again, in the case of Banco De Vizcaya (cited supra), their
rights as they originally existed but those rights altered by the decrees
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In the case of United States of America (supra), it was found that the
offence before their criminal court and as such, High Court in U.K. has
17] It could thus be seen that ratio of the aforesaid judgments would
the Division Bench of Nagpur High Court in the case of Govind Kesheo
Powar vs. State of Madhya Pradesh and others 20 and a Division Bench of
Calcutta High Court in the case of Union of India and others vs.
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analyse hereinafter. In any case, both these judgments only will have
19] However, the question that we are faced here with is not as to
powers, should not at all even notice or take into consideration at all
the penal decrees of a foreign Court for the offence committed in that
country, even if they find the same to be relevant for deciding the
whatsoever.
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Orient Middle East Lines Ltd, Saudi Arabia and others 22 pertaining to
observed thus:
us as above.
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22] In the case of Ralli Brothers (cited supra), the Court of Appeal
understood.
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23] In the case of Regazzoni vs. K.C. Sethia (cited supra), their
twills (jute bags). At the time of the making of the contract and at all
material times, India was the largest and cheapest producer of jute
bags. At that time, South Africa was the large consuming country of
the said jute bags. The Indian Authorities, by way of political protest,
did not allow the export of jute bags directly to South Africa.
that the jute bags would be delivered at Hamburg, but the plaintiff
were not delivered. The plaintiff sued the defendant for damages.
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It could thus be seen that His Lordship observes that, if two persons
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laws of friendly country, then the British Courts would not lend their
break the laws of another. His Lordship further goes on to hold that,
the laws of a friendly country or to get some one else to do it, then it
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His Lordship Denning, J. observes that, Lord Mansfield goes too far,
when he says that these courts will take no notice of such laws of the
other country. His Lordship observes that “these courts will not
enforce such laws at the instance of the foreign country” and that “it
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distinct from saying that one shall not enforce such laws.
But the view that I take of the whole case here,
particularly when I recall the facts upon which the
contract was based, really turns upon the principle which
was enunciated here by my Lord, that where there are two
parties to the contract and the real basis of the making of
the contract is that one party or both will break the law of
a friendly country, then in that case the matter is one in
which for convenience' sake the contract may be said to be
an illegal contract, and this court will not enforce it.
Particularly is that so when we are dealing with a friendly
country within the British Commonwealth.”
It could thus be seen that Lord Birkett also observes that, it is wrong to
say that one shall take no notice of laws of the other country, as
distinct from saying that one shall not enforce such laws.
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It could thus be seen that, Parker L.J also agrees with what has been
Holman vs. Johnson [ 1 Cowp. 341, 343] are very wide indeed. His
that the wording of Lord Mansfield in certain respects, at any rate, is,
Moore J. in Peter Buchanan Ltd and Macharg vs. Mc. Vey ([1955 AC
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24] The Chancery Division in the case of Emery vs. Emery23, while
Nothman and Cooper (Inspector of Taxes) 24, the question that arose
before the House of Lords was, as to whether the Appellant who was
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It could thus be seen that, their Lordships held that, if the English
its own nationals on the ground that the legislation was utterly
immoral and unjust, this could obviously embarrass the Crown in its
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It could thus be seen that their Lordships have clearly rejected the
argument that, the understated invoice did not constitute any breach
of English law but only of German law, and of a German revenue law
the view taken in the case of Regazzoni vs. K.C. Sethia (cited supra)
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principle of law laid down by English Court that, though the decrees of
the laws of foreign countries and especially the countries with which
the United Kingdom has friendly relations, cannot only be looked into
recognition.
accepted, and if we are inclined to hold that the judgment and order
Code.
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that, he shall not be prosecuted and punished for the same offence
again for the same offence. It further provides that, on the same facts,
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he cannot be tried again for any other offence for which a different
charge from the one made against him might have been made under
30] It could thus be seen that, a valuable right is not only available
force. Not only that, he cannot also be tried on the same facts for any
other offence for which a different charge from the one made against
him might have been made under sub-section (1) of section 221, or for
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It could thus be seen that, the provisions of IPC would also apply to
be. It would also apply to any offence committed by any person in any
provides that the word “offence” includes every act committed outside
Code.
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tried in the United Kingdom and undergone a sentence for the same,
Criminal Procedure Code. The question would be, how such a citizen
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his right under Article 20(2) and under Section 300 of Cr.P.C.
the Apex Court in the case of Jitendra Panchal vs. Intelligence Officer,
25 (2009) 3 SCC 57
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conviction recorded for the appellant under Section 846 read with
India for the offence punishable under Sections 29, 8(c), 12, 20(b)(ii)
(For short “NDPS Act”), with the offences for which the Appellant was
thus :-
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their Lordships of the Apex Court also could not have considered the
other charges which he was facing for the offence under the NDPS Act,
could also have been tried for part of the offence that he had
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would also be against the breach of the comity which should exist
enforce a penal decree of foreign nation, they are not precluded from
taking into consideration the foreign penal laws. Not only that, it is
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recognition.
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another vs. Pawan Kumar Dubey 26 in para 7 of the said judgment, the
diverse results. The ratio as could be culled out from the said
enacted Section 10(m) of the C.P and Berar Local Government Act, it
26 1976(3) SCC 334
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Court for the offence committed in that country can be looked into or
authorities in India, did not fall for consideration before the Nagpur
High Court.
be taken notice in India for any other purposes directly fell for
41] We therefore answer the first question viz question No. (1)(a)
in the affirmative.
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No. (1)(b). We are of the considered view that, though the judgment
judicial powers, it cannot be said that the same will be ipso facto
factors such as, nature of the proceedings, purpose for which the said
proceedings, are some of the factors which will have to be taken into
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considered view that, no hard and fast rule can be laid for that
and quasi judicial powers will have to take a call on the facts and
answered accordingly.
(B. R. GAVAI, J. )
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