JESNA REHIM v. STATE OF KERALA & ZAMEEL MOHAMMED & V.M.MOHAMMED

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938** **Crl.Rev.Pet.No. 77 of 2016 () ------------------------------** **AGAINST THE ORDER/JUDGMENT IN CMP 1719/2014 of J.M.F.C.,KOLENCHERRY DATED 15-12-2015 CRIME NO. 73/2014 OF KUNNATHUNADU POLICE STATION , ERNAKULAM** **REVISION PETITIONER(S)/COMPLAINANT:** **----------------------------------** **JESNA REHIM,AGED 29. D/O.ABDUL REHIM, NETTUKKUDIYIL, KUMARAPURAM PO, PALLIKKARA-683 565. PHONE NO.0484 2680644** **BY ADVS.SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SRI.JOBI.A.THAMPI SRI.C.M.EBRAHIM** **RESPONDENT(S)/STATE & ACCUSED 1 & 2:** **------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. ZAMEEL MOHAMMED,AGED 32 YEARS,** - **S/O.V.M.MOHAMMED, MUSTAFA MANZIL, KOTTAPURATH HOUSE, PERINGALA PO, PERINGALA-683 565, PHONE NO.0484 2680967** ## **3. V.M.MOHAMMED** - **S/O.MUSTAFA, KOTTAPURATH HOUSE, MUSTAFA MANZIL, PERINGALA PO, PERINGALA-683 565, PHONE NO.0484 2680967** **R2&3 BY ADV. SRI.PAUL K.VARGHESE R2&3 BY ADV. SMT.A.A.GEETHA R BY PUBLIC PROSECUTOR SRI.E.C.BINESSH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-10-2016, THE COURT ON 26/10/2016 PASSED THE FOLLOWING:** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - **Crl.R.P.No.77 of 2016** - - - - - - - - - - - - - - - - - - Dated this the 26[th] of October, 2016 ## **O R D E R** The complainant in CMP No.1719/2014 in Crime No.73/2014 of Kunnathunadu police station, aggrieved by the order dated 15/12/2015 of the JFCM, Kolenchery, has preferred this revision. 2. According to the complainant, the first accused is her husband and the second accused is his father. The complainant and the first accused got married on 13/4/2008. They lived together for some time in Kerala and thereafter, left for Dubai on 2/5/2008, where the husband was doing the business. Both stayed together till the complainant returned to Kerala in 2013. It was alleged by her that during the period of their matrimonial relationship, the accused harassed her both physically and mentally in connection with demand for dowry. After return to Kerala, she filed complaint before the JFCM Kolenchery alleging matrimonial cruelty and invoking Sections 323,341,342,506(1),43,407498(A) read with section 34 IPC. The learned Magistrate forwarded it for enquiry to the SHO, Kunnathunadu police station invoking section 156(3) of Cr.P.C. Crime was registered as Crime NO. 73/2014. After investigation, final report was laid for offences punishable under Sections 498A read with Section 34 IPC only. Cognizance was Cr.R.P.No.77/2016 2 taken as CC No.1093/2014. 3. Alleging that the police did not conduct a proper investigation she filed Writ Petition (Civil) No.9139/2014. In the meanwhile, the first accused was granted anticipatory bail by the Sessions Court,which was challenged by the complainant in Crl.M.C.No.1764/2014. The writ petition and the Crl.M.C. were later disposed of. In the meanwhile, the complainant filed Cr.M.P.No.1719/2014 before the Magistrate Court for taking the cognizance of the offences which were left out in the original final report. Evidence was tendered by the complainant in that matter. After evaluating the available materials, the court below, by the impugned order, dismissed the complaint holding that the entire allegations took place abroad in Dubai and hence, sanction under Section 188 Cr.P.C.was required. It was also held that no part of the allegations was took place in Kerala. Further it was held that even in the complaint, she had not stated that the second accused was in Dubai at the time when the alleged cruelty took place. Hence, the court held that previous sanction of the Central Government is required under Section 188 Cr.P.C. to conduct an enquiry or trial into the offences and in the absence of such previous sanction, cognizance cannot be taken against the accused. The complaint was consequently dismissed. This is under challenge in this appeal. 4. Heard the learned senior counsel for the complainant and Cr.R.P.No.77/2016 3 the learned counsel for the accused, who raised several contentions touching upon the sustainability of the complaint. Relying on the various decisions on either side, Annexure A1 order which is passed on a private complaint, was dismissed on the premise that all the allegations took place outside Kerala when the parties were leading the matrimonial relationship there. A perusal of the page 1 of the original complaint, which is produced as Annexure-I, shows that the marriage took place on 13/4/2008 and that they resided together in the house of the complaint and the accused for two weeks. Thereafter, they left for Dubai. At the time of marriage, the parents of the complainant had given 45 sovereigns of gold, which was entrusted to the first and second accused as a trustee. She has specifically stated in the complaint that before leaving to Dubai, the gold ornaments were entrusted to the first and second accused. It was later misappropriated. It is further stated in paragraph 2 that from the first week of the marriage itself, the first accused started harassment and constantly accused the complainant by saying that he married her against his will only because the family have fixed the marriage without his consent. It was further alleged that from the very beginning, the first accused did not show any love or affection. This factual situation is again reiterated in the complaint in CMP No.1719/2014 also. Both the complaints indicate that the harassment started during the initial period itself while they stayed together in Kerala. The Law Cr.R.P.No.77/2016 4 on this is settled by a catena of decisions. 5. **In Samarudeen v. Asst. Director of Enforcement (1995 KHC 83),** the Single Bench of this Court held that if the cause of action arose outside territorial jurisdiction of the Kerala High Court , it cannot entertain the writ petition. In **Padmarajan C.V. v. Government of Kerala and Others (2009 (1) KHC 65)** , the Single Bench of this Court held that case involving offences committed both with and outside India, previous sanction of the Central Government was required,. Cognizance taken and summons issued by the Special Court was held to be bad and was hence quashed on a premise that sanction was not obtained. 6. However, the same view was followed in Rajesh Gutta v . State of A.P.& others (2011 KHC 573), wherein it was held that in the cases registered by the police for offences under Sections 498A, 494 IPC, which were committed outside India, the court could take cognizance only with the previous sanction of the Central Government. 7. In a slightly different scenario, another Bench of this Court in **Vijay Menon K. & Another v .State of Kerala and Another (2014 (3) KHC 775) ,** held that when there was no allegation in the complaint that any cruelty was committed within the jurisdiction of that Court, the Court had no jurisdiction to try the matter. However, in **Ismail v .State of Kerala (1999 KHC 19),** the Single Bench of this Court held that a trial commenced without Cr.R.P.No.77/2016 5 the sanction as required under Section 188 Cr.P.C., subsequent sanction obtained, it will not validate the trial as sanction is a condition precedent for cognizance of the offence and also for trial. However, the Division Bench of this Court in **Muhammad Rafi v. State of Kerala and Another (2009 (1) KHC 875** ) , took a view that investigation into an offence punishable under IPC which allegedly occurred outside India by an Indian citizen does not require prior sanction of the Central Government under Section 188 of the Cr.P.C. It upheld the earlier view in **Samarudeen v.Asst.Director of Enforcement** (cited supra) **.** **8.** The entire case law was considered and decided by the Supreme Court in **Thota Venkaterswarlu v. State of A.P.(2011 (3) KLT 909 (SC).** Wherein it was held that in respect of a series of offences arising out of the same transaction, some of which were committed within India and some outside India, no sanction n terms of Section 188 is required till commencement of trial. Upto the stage of taking cognizance no previous sanction would be required from Central Government. This view was followed by another Bench of this Court in **Abdul Rahiman v. State of Kerala (2012 (4) KLT 901),** wherein the Single Bench of this Court held that the rigor of Section 188 starts operation only when the trial stage is reached and no sanction is required till commencement of the trial. 9. The entire legal position is now clear that sanction is not Cr.R.P.No.77/2016 6 required for taking cognizance and for proceeding until the trial stage is reached. In the light of the above, the impugned order does not appear to be sustainable. There is yet another reason for holding this view. The court below has proceeded on the basis that the entire cause of action took place outside Kerala. As referred to in the pleading, the harassment started in Kerala, which is specifically pleaded. The gold ornaments which were allegedly misappropriated were also handed over to the husband while they were staying in Kerala. This aspect has not been considered by the court below. On the other hand, the court below has proceeded on the basis that this Court in Crl.M.C.No.1764/2014 found that the alleged incident occurred in Dubai while the complainant and the first accused were residing together. That was only an observation made by the court in a totally different context and is only of a general nature and that it was not a finding of fact to be relied on by the court below to arrive at a conclusion. Hence, the above finding of the court below does not appear to be sustainable. The impugned order is liable to be set aside. 10. In the light of the above, the impugned order is set aside and the matter is remanded to the court below for fresh consideration. The court below shall also consider the above question after giving a reasonable opportunity to both sides to urge their arguments. The court below shall also consider the question whether the second complaint is sustainable or whether it Cr.R.P.No.77/2016 7 can be treated as separate complaint. Both sides shall appear before the court below on 15/11/2016. ## **Sd/-** **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge.