P. T. Abdul Rahiman v. State of Kerala and Ayishamol

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **FRIDAY, THE 30TH DAY OF NOVEMBER 2012/9TH AGRAHAYANA 1934** ## **Crl.MC.No. 2708 of 2012 ()** **------------------------CC.NO.261/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT- I, OTTAPPALAM** **PETITIONER(S)/ACCUSED:** **---------------------------------------** **P.T.ABDUL RAHIMAN, S/O.MUHAMMED,THAZHATHETHIL HOUSE,KOTHAKURUSSI, ANANGANNADI,OTTTAPPALAM TALUK,PALAKKAD DISTRICT, RESIDING AT LULU VILLAGE,ANKAS BUILDING,GROUND FLOOR, A-BLOCK,FLAT NO.VI,ALSINIA-3,DUBAI.** **BY ADV. SRI.P.JAYARAM** **RESPONDENT/STATE & 2ND ACCUSED :** **-----------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **ADDL.R2: AYISHAMOL, AGED 27 YEARS, W/O.FAISAL, POOLAMTHARAKKAL HOUSE, VADAKKEKAD AMSOM DESOM, VADAKKEKAD VILLAGE, CHAVAKKAD TALUK, THRICHUR DISTRICT,PIN-679 562.** **BY PUBLIC PROSECUTOR SRI.P.M.SANEER** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21-11-2012, THE COURT ON 30-11-2012 PASSED THE FOLLOWING:** **sts** ## **CRMC.NO.2708/2012** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX A1 COPY OF THE COMPLAINT IN CRIME NO.625/2009, OTTAPALAM STATION (CMP.NO.2978/2009, J.F.C.M. OTTAPPALAM.** **ANNEX A2 COPY OF THE FIR IN CRIME NO.625/2009,OTTAPALAM POLICE STATION ANNEX A3 COPY OF THE CHARGESHEET LAID BY POLICE BEFORE J.F.C.M COURT, OTTAPALAM IN CRIME NO.625/2009, OTTAPALAM POLICE STATION ANNEX A4 COPY OF THE CHARGESHEET FRAMED BY J.F.C.M COURT, OTTAPALAM IN CC.NO.261/2010, ON THE FILES OF J.F.C.M COURT,OTTAPALAM. ANNEX A5 COPY OF THE ORDER IN CRL.M.P.NO.4390 OF 2012 IN CC.261 OF 2010 ON THE FILES OF JFCM COURT, OTTAPALAM.** ## **RESPONDENT'S ANNEXURES: NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **S.S.SATHEESACHANDRAN, J. ------------------------------Crl.M.C.NO.2708 OF 2012 ----------------------------------Dated this the 30[th] day of November, 2012** ## **O R D E R** Petitioner is the accused in a pending case on the file of the Judicial First Class Magistrate Court, Ottapalam. He is being prosecuted for offences punishable under Sections 403, 406 and 420 of the Indian Penal Code. Crime in the aforesaid case was registered on a complaint filed by the 2[nd] respondent, hereinafter referred to as the 'complainant' before the magistrate and that being referred to police for investigation and report under Section 156(3) of the Code of Criminal Procedure, for short, the 'Code'. On the report filed by the police, after investigation, cognizance of the aforesaid offences taken, summons was issued to the accused, and on, his appearance, complying with the formalities, charge was framed against him. At that stage, complainant moved an application seeking further investigation of the crime contending that material documents have not been seized by the investigating agency and also sanction has not been **Crl.M.C.No.2708/2012** **2** obtained under Section 188 of the Code to prosecute the accused, which is necessary since the transaction for the offences involved took place in a foreign country. That application was allowed by the magistrate vide Annexure A5 order. That annexure also contains the application of the complainant. Final report filed by the police in the case indicting the petitioner for the aforesaid offences (Annexure A3), charge framed by the court on the basis of such report (Annexure A4) and the order passed by the magistrate allowing further investigation (Annexure A5) are assailed in the petition by the accused for quashing them contending that the prosecution proceedings initiated against him without obtaining sanction from the Central Government under Section 188 of the Code is unsustainable under law and, therefore, liable to be quashed exercising the inherent powers of this Court under Section 482 of the Code. 2. Notice given, the 2[nd] respondent has entered appearance. I heard the counsel on both sides and also the learned Public prosecutor. **Crl.M.C.No.2708/2012** **3** 3. Complainant with her husband was residing in UAE. Petitioner/accused is stated to be the uncle of her husband. While so, when the complainant and her husband were at UAE, on false representation and committing criminal breach of trust, the accused cheated them of substantial sums, is the crux of the case alleged to prosecute the accused for the offences stated supra. Police, after investigation, coming to the conclusion that the accused had defrauded the husband of the complainant for a sum of Rs.42,45,000/- by false representations and committing criminal breach of trust laid the report indicting him of the offences thereof. Since the alleged transaction giving rise to the offences imputed took place outside the country, sanction from the Central Government to prosecute the accused as covered by Section 188 of the Code is required but that has not been obtained so far, is not under dispute. The main thrust of challenge raised by learned counsel for the petitioner/accused is that where the court after taking cognizance of the offences on the report filed by the police has framed charge against the accused, and such cognizance taken **Crl.M.C.No.2708/2012** **4** was bad, the court had no jurisdiction to pass Annexure A5 order for further investigation of the crime. Since charges have been framed and the trial has commenced without obtaining sanction, consequence thereof have to follow where the charges cannot be sustained, that is, an order of acquittal in favour of the accused, is the further submission of the counsel. Learned counsel for accused has relied on a number of judicial pronouncements to contend that cognizance of the offences taken on Annexure A4 report, framing of charge against the accused and, later, passing of Annexure A5 order for further investigation are vitiated as all those acts have been done flouting the mandatory prescription under Section 188 of the Code. Learned counsel conceding that for investigation by police over offences committed outside India and filing of report under Section 173(2) of the Code indicting the offender thereof, is not interdicted under Section 188 of the Code, contended that sanction from the Central Government is a must to enable the court to take cognizance of the offences and proceed further in the case. Learned counsel relied on **Remla and another v. S.P. of Police and others (1993 (1) KLJ 234),** **Crl.M.C.No.2708/2012** **5** **Muhammed Sajeed v. State of Kerala (1995 (1) KLT 748), Riyas Salim v. C.I. of Police, Pathanamthitta and Others (2010 (2) KLD 541), Ismail v. State of Kerala (1999 KHC 19), Samaruddin v. Asst. Director of Enforcement (1999 (2) KLT 794 (F.B.)),** and **Padmarajan C.V. v. Government of Kerala and Others (2009 (1) KHC 65)** as authorities in support of the challenge raised in the petition. ## 4. Section 188 of the Code reads thus: **188. 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. The above Section and also Section 4 of the IPC spell out that if the person committing the offence at that point of time is a citizen of **Crl.M.C.No.2708/2012** **6** India, then, even if the offence is committed beyond the contours of India, he will be subject to the jurisdiction of the courts in India. The rule enunciated under the two Sections rests on the principle that qua citizens the jurisdiction of courts is not lost by reason of the venue of the offence. However, Section 188 of the Code places an interdiction in the enquiry or trial over offences committed outside India by a citizen of India insisting for sanction from the Central Government to do so. The question posed for consideration in the case is whether after taking cognizance of such an offence against the offender, if enquiry/trial proceeded against the offender without sanction under Section 188 of the Code, whether that would invalidate not only such enquiry or trial but even an order passed for further investigation of the crime. 6. In **Remla's case (1993 (1) KLJ 234), Muhammed Sajeed's case (1995 (1) KLT 748),** and **Riyas Salim's case (2010 (2) KLD 541),** all three of them, the question involved was whether the offences committed outside India could be investigated by police without sanction under Section 188 of the Code. No such **Crl.M.C.No.2708/2012** **7** sanction was required for investigation was the view consistently taken in all the three cases, which is also not a matter in dispute. In **Ismail's case (1999 KHC 19)** , the question was whether subsequent obtaining of sanction would validate trial already commenced. In **Samaruddin's case {1999 (2) KLT 794 (F.B.)}** , considering the question of sanction required under Section 188 of the Code, this Court expressed the view that such sanction is a preliminary requisite for institution of criminal proceedings in India in respect of offences committed outside India. Following the above decision and also some other decisions of the Apex Court as well, in **Padmarajan's case (2009 (1) KHC 65),** it has been held that applying the judicial mind to the police report and deciding to take cognizance of offences and issuing process to the accused under Section 204 of the Code will be part of the 'inquiry' and in cases where such offences are committed outside India, such inquiry is barred unless prior sanction of the Central Government has been obtained. Views expressed in the aforesaid decisions that for institution of proceedings or applying the mind of court to consider whether cognizance of the offences is to be taken **Crl.M.C.No.2708/2012** **8** and process to be ordered to accused in cases involving offences committed outside India on reports filed, sanction is required, no longer hold good in the light of the decision of Apex Court in **Thota Venkaterswarlu v. State of A.P. (2011 (3) KLT 909 (SC))** . In that decision, dilating the question as to what extent the fetters imposed to the proviso to Section 188 of the Code would apply in a case involving offences committed outside India, the Apex Court has held thus: “Proviso to Section 188 is a fetter on the powers of the investigating authority to inquire into or try any offence mentioned in the earlier part of the Section, except with the previous sanction of the Central Government. The fetters, however, are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of Section 188 is required till commencement of the trial. It is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central Government would be required before the trial could commence. Accordingly, upto the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to Section **Crl.M.C.No.2708/2012** **9** 188 Cr.P.C. However, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government.” (emphasis supplied) In the case considered by the Apex Court, offences committed in India and outside India were involved. In such a case, expressing the view that with respect to the offences committed in India, trial can proceed by the courts in India, the Apex Court proceeded and considered the question whether in cases where offences are alleged to have been committed outside India any previous sanction is required to be taken by the prosecuting agency before the trial can commence. The Apex Court held that the fetters covered by the proviso to Section 188 of the Code are imposed when the stage of trial is reached, and no sanction is required till commencement of the trial. Trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government. That alone is the effect of the fetter covered by the proviso to Section 188 of the Code. In the light of the elucidation of the proviso by the Apex Court, as aforesaid, no doubt can be entertained on the validity and legality over the institution of proceedings by filing a **Crl.M.C.No.2708/2012** **10** report involving offences committed outside India nor of the competency of magistrate to take cognizance of such offences and issuing process to the accused even if sanction has not been obtained then to prosecute the offenders. However, beyond the cognizance stage, the magistrate cannot proceed further without satisfaction that sanction has been obtained from the Central Government to prosecute the accused. 7. In the present case, after the cognizance stage, further steps taken by the magistrate for framing of charge against the accused, when no sanction has been obtained and produced to prosecute him, are unsustainable, Annexure A4 charge framed against him is liable to be set aside. Whether Annexure A5 order passed by the magistrate directing further investigation of the crime allowing the application of the complainant in the case is sustainable has to be examined. Order passed in an application moved under Section 173 (8) of the Code whether it be moved by the investigating agency or the de facto complainant, and also granting or rejecting such application, cannot be considered as **Crl.M.C.No.2708/2012** **11** steps in continuation of the trial of the case. At any stage of the case, continuing of further investigation of the crime and collection of additional materials is not in any way inhibited for the reason that a report under Section 173 (2) of the Code has already been filed before the court. However, in a case where sanction is required to proceed with enquiry or trial, but without such sanction trial proceeded, post obtaining of sanction and its production will not wipe off the invalidity of such trial. So, in the course of such invalidated trial if any application is moved for further investigation and orders are passed granting such permission that cannot be sustained. Any order of the magistrate permitting further investigation after enquiry or trial has proceeded without sanction, is also vitiated. 8. Where sanction is required only for enquiry/trial, but not for taking cognizance of the offence against the offender any application moved for further investigation of the crime before such enquiry/trial commences can be entertained and decided by the magistrate as the interdiction placed with respect to sanction is **Crl.M.C.No.2708/2012** **12** applicable only for enquiry/trial. Further more, when enquiry/trial alone is barred for want of sanction even after taking cognizance but before such enquiry/trial proceeds sanction order can be obtained and produced for prosecuting the offender. This also has to be taken into account in considering whether a request for further investigation moved at a later point of time after commencement of trial, which without sanction is invalid, even if it is annulled for that reason, can be directed to be considered by the magistrate afresh to advance the ends of justice. 9. The trial has proceeded without sanction and, thus, rendering it invalid, and in the course of such invalid trial the magistrate passed Annexure A5 order for further investigation, which too was invalid. Does that invalidity in trial and passing of order for further investigation demand quashing of the entire criminal proceedings against the accused, is the question to be considered. Learned counsel for the petitioner relying on **Ismail's** case **{1999 KHC 19}** contended that in the case where the trial has proceeded against the accused without sanction criminal **Crl.M.C.No.2708/2012** **13** proceedings against him are liable to be quashed. I do not agree. Sanction as already noted is required only for enquiry or trial and not for taking cognizance of the offence. Before enquiry or trial proceeds, after taking cognizance, if it is noticed that required sanction has not been given court can provide opportunity to the prosecution to obtain and produce sanction. Further more, even if the enquiry/trial is proceeded without sanction, that will only invalidate such enquiry/trial. Where such invalidity, in such enquiry/trial is brought to the notice of this court, and the proceedings are pending, orders can be issued for setting aside the proceedings of such enquiry/trial and even returning of report filed by the investigating agency which was produced without a sanction order. It is also open, after setting aside the proceedings of enquiry/trial, to grant opportunity to the prosecuting agency to produce the sanction order. If enquiry/trial is proceeded without sanction that by itself would not insulate the accused proceeded against from being proceeded afresh after obtaining sanction. However, if the trial has ended in his acquittal, even if such trial was vitiated, prejudice likely to be suffered by him in ordering a de **Crl.M.C.No.2708/2012** **14** novo trial and also that the proceedings conducted leading to such acquittal were not a curable irregularity under Section 465 of the Code, necessarily, has to outweigh any order for de novo trial. In the present case, other than framing of charge against the accused, without sanction, trial has not proceeded any further. When that be so, setting aside all steps taken after the cognizance stage, for trial, including the orders framing charges against the accused and passing of Annexure A5 order, the magistrate has to be directed to examine the application moved by the de facto complainant, though filed belatedly, whether any further investigation is called for in the case. He has passed Annexure A5 order solely on the ground that no counter has been filed. Order passed on that count also is bad, which even otherwise, as already indicated is unsustainable. 10. Proceedings in the case taken by the magistrate in the post cognizance stage for trial of the case are set aside with direction to the magistrate to consider and pass orders on the application moved for further investigation by the de facto complainant, after hearing both sides, and taking note of the facts **Crl.M.C.No.2708/2012** **15** and circumstances presented in the case and also in accordance with law. In case that application is turned down, the magistrate shall not proceed with the trial as no sanction order has been produced to prosecute the accused to proceed with the trial of the case. Subject to the above directions, Crl.M.C is disposed of. **Sd/S.S.SATHEESACHANDRAN JUDGE** sk/- **//true copy//**