A.K. Uthaman v. SEEYILESH KARSANDAS RADIA and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **TUESDAY, THE 24TH DAY OF JUNE 2014/3RD ASHADHA, 1936** ## **Crl.MC.No. 3180 of 2014** ## **-----------------------------------** ## **CC NO. 175/2006 OF CHIEF JUDICIAL MAGISTRATE COURT,THRISSUR** ## **------------------** ## **PETITIONERS / ACCUSED :** **----------------------------------------** ## **A.K.UTHAMAN, S/O.KOCHUVAVA, ARESARIL HOUSE, THUMBOLI, ALAPPUZHA DISTRICT.** ## **BY ADV. SRI.SHEJI P.ABRAHAM** ## **RESPONDENTS/COMPLAINANT/STATE :** **----------------------------------------------------------------------------------------** ## **1. SEEYILESH KARSANDAS RADIA,** - **GROUP GENERAL MANAGER, HENLEY GROUP OF COMPANIES, HENLEY INDUSTRIES U.K. LTD 197, LONDON ROAD, MODERN SURREY, POST CODE SM 45 PT, LONDON UNITED KINGDOM, POWER OF ATTORNEY HOLDER OF M/S. DRURY INDUSTRIES LTD., NIGERIA AND M/S. CHEMIRON INTERNATIONAL LTD., NIGERIA BOTH COMING UNDER THE HENLEY GROUP OF COMPANIES, HAVING THEIR OFFICE AT PLOT NO. 1405,** **ADETOKUNBO, ADEMOLA STREET, VICTORIA ISLAND LAGOS, NIGERIA.** **2. STATE OF KERALA,** - **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 3180 of 2014** ## **----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **ANNEXURE A1 : TRUE COPY OF THE COMPLAINT DATED 16.06.2014 FILED BY THE FIRST RESPONDENT/DE FACTO COMPLAINANT. ANNEXURE A2 : TRUE COPY OF THE FIR DATED 18.06.2004. ANNEXURE A2(A): TRUE COPY OF THE FINAL REPORT 27.06.2006 ANNEXURE A3 : TRUE COPY OF THE COURT PROCEEDINGS. ANNEXURE A4 : TRUE COPY OF THE CHARGE FRAMED AGAINST THE PETITIONER DATED 12.05.2010. ANNEXURE A5 : TRUE COPY OF THE NOTICE RECEIVED BY THE PETITIONER FROM THE SUB INSPECTOR OF POLICE THRISSUR EAST DATED 17.12.2013.** ## **RESPONDENT(S)' ANNEXURES:** ## **NIL** ## **//TRUE COPY//** ## **P.A.TO JUDGE.** Msd. ## **K.RAMAKRISHNAN, J.** ------------------------------------------ Crl.M.C. No. 3180 of 2014 -----------------------------------------Dated this the 24[th] day of June, 2014 ## **O R D E R** This is an application filed by the petitioner who is the accused in C.C. 175/2006 on the file of Chief Judicial Magistrate Court, Thrissur to quash the proceedings under section 482 of Code of Criminal Procedure. 2. It is alleged in the petition that he has been arrayed as first accused in C.C. 175/2006 on the file of Chief Judicial Magistrate Court, Thrissur, presently residing at Alappuzha and he was earlier working as a Project Manager in a Company at Nigeria for the period from 1988 to 2004. During the year 2003, while the petitioner was in Kerala, he met with an accident and got seriously injured. Though, he returned to Nigeria, he could not pursue his employment. So he came back to Kerala in May 2004 and settled in Kerala permanently. In June 2004, the de facto ## **Crl.M.C. No. 3180/2014** **-2-** complainant, claimed to be a Power of Attorney holder of the petitioner’s employer Company, filed complaint stating that he had effected transfer of 2,77,150 US Dollars and 89,475 US Dollars on 27.04.2004 into his account in Kerala and 1,50,000 US Dollars as well as 89,000 US Dollars to the account of the second accused with the aid of the Director of the complainant’s Company in Nigeria. 3. The complaint was forwarded to the Police for investigation under section 156(3) of Code of Criminal Procedure and after investigation, final report was filed on 27.06.2006 alleging commission of offences under sections 420, 406, 408, 411, 477A and 471 r/w 34 of Indian Penal Code. Thereafter, the case was adjourned from time to time for producing the sanction for prosecution, which is mandatory under section 188 of Code of Criminal Procedure. The learned Magistrate without sanction framed charge on 12.05.2010. It appears that the Police again issued notice ## **Crl.M.C. No. 3180/2014** **-3-** under section 91 of Code of Criminal Procedure for further investigation without any direction from the learned Magistrate, which is against the settled position of law, reported in **Abdul Rahiman v. State of Kerala – 2012(4) KLT 901** . So the petitioner has no other remedy except to approach this court seeking the following reliefs: “For the above and other reasons that may be permitted to be urged at the time of hearing it is most respectfully prayed that this Hon'ble Court may be pleased to quash the proceedings in C.C. No.175/2006 as per Annexure A1 complaint against the petitioner before the Chief Judicial Magistrate Court, Thrissur.” 3. Considering the nature of the relief claimed in the petition, this Court called for a report from the concerned Magistrate Court regarding the present stage of the case and the learned Chief Judicial Magistrate has sent a report which reads as follows: **Crl.M.C. No. 3180/2014** **-4-** “1. The Deputy Superintendent of Police, Crime Detachment, Thrissur has filed final report against two accused alleging offences punishable u/ss 420, 406, 408, 411, 477(A) and 471 r/w s.34 of IPC. 2. The final report was taken on file as C.C.175/2006. Accused entered appearance on 1.11.2006. Thereafter, the case was being proceeded against them. On 4.6.2014 the case came up before the Court and both accused applied. Previous proceedings showed that the accused were applying regularly. Summons was issued to the remaining witnesses under the impression that most of the witnesses were examined and the case also pertained to the year 2006. Now the case stands posted to 27.06.2014. 3. Now, when report under reference was called for, the entire bundle was verified and it is found that on 20.12.2013 the Circle Inspector of Police, Town East Police Station, Thrissur filed a report seeking permission for further investigation as the final report was filed without **Crl.M.C. No. 3180/2014** **-5-** obtaining previous sanction of Government u/s 188 of Cr.P.C., considering the fact that the alleged crime took place at Nigeria. Unfortunately the report was happened to be kept inside the bundle and the proceedings would show that none had pressed for an order in that report. It is humbly reported that, on the next hearing date itself an order shall be passed in the prayer for further investigation. It is also humbly reported that the Deputy Superintendent of Police, Crime Detachment who filed the final report in this case has not moved an application, prayer or even an intimation in respect of further investigation.” 4. So, in view of the report submitted by the learned Chief Judicial Magistrate, Thrissur, this court felt that the petition can be disposed of at the admission stage itself, after hearing the counsel for the petitioner and the learned Public Prosecutor, dispensing with the notice to the first respondent. ## **Crl.M.C. No. 3180/2014** **-6-** 5. The counsel for the petitioner submitted that in view of the bar under section 188 of Code of Criminal Procedure, the learned Magistrate was not justified in proceeding with the trial of the case without producing sanction for prosecution. He relied upon the decision reported in **Abdul Rahiman v. State of Kerala – 2012 (4) KLT 901** in support of his case. 6. On the other hand, learned Public Prosecutor submitted that, that dictum is not applicable to the facts of this case. 7. It is an admitted fact that complaint was filed by the Power of Attorney holder of the de facto complainant through the first respondent alleging commission of the offence in Nigeria by the petitioner while he was working there in their concern. So, admittedly the offence was committed in Nigeria and the proceeds of the commission of the crime have been transferred to Kerala. **Crl.M.C. No. 3180/2014** **-7-** 8. Section 188 of Code of Criminal Procedure reads as follows: ## “ **Offence committed outside India** - When an offence is committed outside India - - (a) by a citizen of India, whether on the high seas or elsewhere; or - (b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.” 9. Further, in the decision reported in **Thota Venkaterswarlu v. State of A.P. - 2011 (3) KLT 909** , the Hon’ble Supreme Court has held that the bar under section 188 of Code of Criminal Procedure will not affect the power of the Magistrate to take cognizance of the case in ## **Crl.M.C. No. 3180/2014** **-8-** respect of offence committed outside India and for that purpose no sanction is required. But, for the purpose of proceeding with the trial, sanction under section 188 of Code of Criminal Procedure is required. 10. Further in the decision reported in **Abdul Rahiman v. State of Kerala – 2012(4) KLT 901** , also this court has held that any action post cognizance without sanction, is not valid, as section 188 of Code of Criminal Procedure mandates sanction for proceeding with trial of cases in respect of an offence said to have been committed in foreign country. In that case also a re-investigation was ordered after taking cognizance on the basis of the application filed by the Investigating Officer and this Court while disposing that Order held that any post cognizance proceedings without sanction is not valid and directed the Magistrate to consider the application for further investigation and pass appropriate orders in that application **-9-** ## **Crl.M.C. No. 3180/2014** after hearing both sides. 11. Similarly, in this case also it is seen from the report that a report has been filed by the Circle Inspector of Police, Town East Police Station, seeking permission for further investigation as the final report was filed without obtaining previous sanction of the Government under section 188 of Code of Criminal Procedure, considering the fact that the alleged crime took place at Nigeria. But, no orders have been passed in that report. So, considering the circumstances, this court feels that petition can be disposed of as follows: The learned Magistrate is directed to consider the report, if any, filed by the Investigating Officer for the purpose of further investigation after hearing the counsel for the accused and the Deputy Director of Prosecution of that Court and also keeping in mind the dictum laid down in the decision reported **Abdul Rahiman v. State of Kerala –** **-10-** ## **Crl.M.C. No. 3180/2014** **2012(4) KLT 901** and the decisions referred to in that decision and pass appropriate order in accordance with law. With the above direction and observations the petition is disposed of. Office is directed to communicate this Order to the concerned court immediately. Sd/K.RAMAKRISHNAN, JUDGE jjj