Criminal Litigation by/Against NRIs

Contents

1. Criminal Litigation for NRIs
2. Anticipatory Bail for NRIs
3. Regular Bail and Bail Proceedings
4. FIR Quashing Under Section 528 BNSS
5. Proclaimed Offender and Warrant Proceedings
6. 498A / Section 85 BNS Cases
7. Criminal Proceedings Arising from Property Disputes
8. Criminal Cases for NRIs Living Abroad
9. Frequently Asked Questions

Criminal Litigation for NRIs

An NRI facing a criminal case in India may have to deal with an FIR, police investigation, arrest, bail proceedings, summons, warrants, proclamation proceedings, a Look Out Circular or a criminal trial while continuing to live abroad.

For an NRI, the first and most important step is to determine the actual stage of the criminal proceedings. A complaint, FIR, charge-sheet, summons, warrant and proclamation are different stages and do not carry the same legal consequences.

Depending upon the circumstances, legal remedies may include anticipatory bail, regular bail, quashing of an FIR or criminal proceedings, applications concerning personal appearance, challenge to warrants or appropriate proceedings relating to proclamation orders.

NRI criminal matters require examination of the FIR, court orders, investigation record and the law applicable to the particular case.

Anticipatory Bail for NRIs

An NRI who has a reasonable apprehension of arrest in connection with a non-bailable offence may, where legally maintainable, seek anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The application may be made before the Court of Session or the High Court having jurisdiction.

The court may consider factors including:

• the allegations and sections invoked;
• the nature and seriousness of the alleged offence;
• the applicant's conduct and cooperation;
• the requirement, if any, for custodial interrogation;
• previous criminal proceedings;
• the applicant's residence and employment abroad; and
• the conditions necessary to secure the applicant's participation in the investigation or proceedings.

Being an NRI does not automatically entitle a person to anticipatory bail. Similarly, residence abroad does not by itself prevent an application where the statutory requirements are satisfied.

Regular Bail and Bail Proceedings

Where an accused has already been arrested, the appropriate remedy may be regular bail.

The court may impose conditions while granting bail. In appropriate circumstances, an accused residing abroad may also seek modification of bail conditions or permission relating to travel.

The nature of the offence, stage of proceedings, previous orders and conduct of the accused are relevant when considering bail.

If bail has been refused by a lower court, the available remedy may include approaching the appropriate higher court, subject to the applicable law and procedural requirements.

FIR Quashing Under Section 528 BNSS

The High Court has inherent powers under Section 528 BNSS, corresponding to Section 482 of the Code of Criminal Procedure, 1973.

An accused may seek quashing of an FIR or subsequent criminal proceedings where the facts and law justify invoking the High Court's inherent jurisdiction.

Depending upon the circumstances, a petition may raise issues such as:

• the allegations do not disclose the ingredients of an offence;
• continuation of the proceedings is barred by law;
• the criminal proceeding is alleged to constitute an abuse of the process of court; or
• other circumstances exist in which intervention is necessary to secure the ends of justice.

A settlement between parties can also be relevant in appropriate matrimonial, family or personal disputes. However, the possibility of quashing depends upon the nature of the offence and the circumstances of the individual case.

The High Court does not ordinarily conduct a full trial while deciding a petition for quashing.

Proclaimed Offender and Warrant Proceedings

An NRI may discover that warrants or proclamation proceedings have been initiated after failing to appear before an Indian court.

This situation requires careful examination of the entire procedural history.

The relevant records may include:

• summons issued by the court;
• service reports;
• bailable or non-bailable warrants;
• proclamation proceedings;
• orders declaring the person a proclaimed offender or otherwise recording non-appearance; and
• subsequent orders passed by the court.

A person who has already been declared a proclaimed offender faces significant legal complications, and an ordinary anticipatory-bail approach may not be available in the usual manner.

The appropriate remedy depends upon the particular orders, the circumstances of non-appearance and the applicable law.

498A / Section 85 BNS Cases

Section 85 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with cruelty by a husband or relative of the husband. It replaced Section 498A of the Indian Penal Code for offences governed by the new criminal law framework.

Section 86 BNS sets out the meaning of cruelty for the purposes of Section 85.

For an NRI husband or relative facing allegations under Section 85 BNS, the FIR and the specific allegations against each accused should be examined carefully.

Depending upon the circumstances, the available legal remedies may include:

• anticipatory bail;
• FIR or proceedings quashing under Section 528 BNSS;
• appropriate applications before the trial court;
• proceedings concerning warrants or proclamation, where legally maintainable; and
• defence during the criminal trial.

The fact that an accused resides abroad does not establish that an FIR is false. Equally, allegations contained in an FIR are not by themselves proof of guilt. The criminal court ultimately determines the case on the basis of the evidence and applicable law.

Criminal Proceedings Arising from Property Disputes

Property disputes involving NRIs can sometimes result in allegations of cheating, criminal breach of trust, forgery, trespass or other offences.

The civil and criminal aspects of a property dispute should be separately examined.

A disagreement concerning ownership or possession does not automatically constitute a criminal offence. The underlying documents, transactions, representations, intention and statutory ingredients must be considered.

Where the facts disclose both civil and criminal issues, the appropriate remedies should be assessed independently rather than treating every property dispute as purely criminal.

Criminal Cases for NRIs Living Abroad

Living outside India does not stop an Indian FIR, investigation or criminal proceeding.

An NRI should obtain the available Indian records and establish:

1. whether an FIR has actually been registered;
2. the sections invoked;
3. whether investigation is continuing or a charge-sheet has been filed;
4. whether summons or warrants have been issued;
5. whether proclamation proceedings have commenced;
6. whether any bail order or other court condition exists; and
7. whether any separate travel or immigration restraint is involved.

This information is particularly important before travelling to India.

Can an NRI conduct a criminal case from abroad?

In appropriate circumstances, an NRI may be represented by Indian counsel for proceedings where personal attendance is not required or has been dispensed with by the court.

However, there is no blanket rule that every criminal case can be conducted entirely without the accused appearing in India.

A Power of Attorney does not automatically substitute the accused's personal appearance. The requirements of the particular proceeding and the court's orders must be followed.

Frequently Asked Questions

Can an NRI get anticipatory bail in India while living abroad?

An NRI may apply for anticipatory bail where the statutory requirements are satisfied and the application is maintainable. The court decides the application according to the facts and applicable law.

Can an NRI seek FIR quashing from outside India?

A petition under Section 528 BNSS may be filed before the competent High Court through counsel, subject to the applicable procedural requirements. Whether personal appearance is required depends upon the circumstances and court's directions.

Can an NRI be arrested at an Indian airport?

The risk depends on the current legal status of the case. Warrants, proclamation proceedings, bail orders and other applicable restraints should be checked before travelling to India.

What should I do if a non-bailable warrant has been issued?

Obtain the latest order sheet and determine why the warrant was issued, whether it has been executed and whether any proclamation proceedings have followed. The appropriate legal remedy depends on these facts.

Can a proclaimed offender obtain anticipatory bail?

A person already declared a proclaimed offender faces significant legal restrictions and difficulties concerning anticipatory bail. The proclamation order and subsequent proceedings must be examined before determining the appropriate remedy.

Can a Section 85 BNS / 498A case be quashed?

In an appropriate case, proceedings may be challenged under Section 528 BNSS. Quashing is an exceptional High Court remedy and depends on the allegations, material on record, nature of the offence and applicable legal principles.

Does living abroad stop an Indian criminal case?

No. Residence abroad does not by itself terminate an Indian criminal proceeding. The FIR, court proceedings and orders continue according to Indian law unless modified or terminated by the competent authority or court.

Does an NRI always have to travel to India for a criminal case?

Not necessarily. Courts may permit exemption from personal appearance in appropriate circumstances. However, personal attendance can be required at particular stages, and an NRI should not assume that a Power of Attorney eliminates that requirement.

About the Author

Advocate Jaspreet Singh Benipal is associated with NRI Legal Consultants and writes on Indian criminal law, NRI criminal litigation, property disputes and related legal issues.

The information on this page is provided for general legal awareness. The appropriate remedy depends upon the facts, evidence, procedural stage, jurisdiction and orders passed by the competent court.