Criminal Action Against an NRI for Crimes Outside India

17 Mar 2022

When people get out of jail, it is not easy for them to find a job. It is not easy to return to civil society. -Bernie Sanders

Before we understand who qualifies as a non-resident of India, let us look at who is a resident of India. The term “residential status” can be found under the income tax laws of India and should not be confused with the citizenship of individuals in India. Even if an individual is an Indian citizen, he or she may become a non-resident. Similarly, for income tax purposes, a foreign citizen may become a resident of India for a given year. Under the Income Tax Act 1961, an individual is considered a resident of India if

  1. During the financial year, he/she spends at least 182 days in India. OR
  2. if he or she has spent at least 365 days in India in 4 preceding years and at least for 60 days or more in that year.

As a result, if the criteria above are not met, one will be classified as a non-resident Indian (NRI). NRI is also defined under the Foreign Exchange Management Act, 1999 (FEMA) as the law relating to foreign exchange. Technically, any person who has left India voluntarily with the sole intention of immigrating to another country in order to seek employment or to conduct business is known as an NRI. Initiating false litigation against NRIs is ubiquitous. These charges are usually unfounded or baseless. Often, family, relatives, or friends take such action against NRIs to prevent them from returning or coming to India. In general, NRIs face the following challenges:

  1. fear of being arrested or having their passports confiscated;
  2. loss of their assets;
  3. lack of clarity on legal rights and professional advice

In Section 188 of the Criminal Procedure Code of India of 1973 (CrPc), as a result, even though an NRI commits an offense outside of India’s territory, he can be charged as though the offense were committed in India. Nonetheless, the proviso to Section 188 means that the offenses will only be inquired or tried with the approval of the Central Government. As a result, Section 188 restricts the power to inquire about an offense committed by an NRI to a point that it can only be authorized with the permission of the Central Government.

Since 2016, the government has received over 5,000 complaints from women alleging abandonment, cheating, and harassment by their non-resident Indian (NRI) husbands with Punjab, Uttar Pradesh, Delhi, and Karnataka, among the top list. The majority of these concerns also include problems such as domestic abuse by their spouses who live abroad to request for the deportation of the spouse to India, extradition, support for children, divorce, or child custody, along with legal financial and legal assistance to file a case against the NRI spouse. Cruelty towards a married woman by her husband and in-laws is punishable under Section 498A of the Indian Penal Code. A violation of section 498A is non-bailable. Every year, Indian wives file numerous cases in India under section 498A against their husbands who are non-resident Indians (NRIs). The Registration of Non-Resident Indian Marriage Bill, 2019, was recently passed by the Indian parliament. Once enacted, the Passport Authority will be able to impound or revoke an NRI’s passport if brought to the Passport Authority’s attention that the NRI has not registered his marriage within 30 days of the date of marriage. Moreover, NRI marriages are governed by the Hindu Marriage Act of 1955, the Special Marriage Act of 1954, the Foreign Marriage Act of 1969, and other personal laws that apply to both spouses. The law that governs marital disputes comes under the law in which the parties are married. The same family of laws governs some matrimonial rights, such as inheritance and succession, and adoption.

Case: Gauri Rohan Bedekar vs. Sujatha Sanjay Bedekar & ors In this case, the Bombay High Court ordered a stay of the criminal proceedings under section 188 of the CrPc, citing that the crimes with which the accused was charged were committed in Australia. The complainant, who was aggrieved by the said order, filed an appeal with the Supreme Court’s Division Bench. The complainant who presented before the bench of Justice Rohinton Fali Nariman and Justice S. Ravindra Bhat of the Supreme Court stated that the previous judgment wherein in Thota Venkateswarlu v. the State of A.P. was made clear that the Central Government of India can pass a sanction under the provision of Section 188 of the CrPc in order to continue with the trial even after taking cognizance of offense. In the case above, the Supreme Court of India was asked to consider whether a series of offenses arising from the same transaction, some committed within India and others committed outside India, could be tried together without the approval of the central government. In the case at hand, the Court noted that the language of Section 188 makes it clear that when a crime is committed outside India by an Indian citizen, he may be prosecuted as if the offense were committed in India. However, the proviso states that such offenses can only be inquired or tried after the Central Government has given its prior approval. The bench observed to say that obtaining permission from the Central Government comes only after the decision to try the offender. However, without prior approval from the Central Government, the trial cannot proceed beyond the stage of taking cognizance of the offense. The Supreme Court ruled, based on the decision as mentioned above, that the Central Government can accord sanctions even after taking cognizance of offense. As a result, the order of the Bombay High Court had been overturned.