Sanoop v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940 Bail Appl..No. 581 of 2018 CRIME NO. 50/2018 OF THRITHALA POLICE STATION , PALAKKAD ## PETITIONER(S)/ACCUSED SANOOP AGED 32 YEARS, S/O. KRISHNANKUTTY, THOZHAMPURATH, KUMARANALOOR, PALAKKAD DISTRICT. BY ADVS.SRI.M.KIRANLAL SRI.G.KIRAN SRI.R.RAJESH (VARKALA) ## RESPONDENT(S)/STATE-COMPLAINANT: 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, THRITHALA POLICE STATION, PALAKKAD DISTRICT. R BY SMT. REKHA C. NAIR, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 01.03.2018, THE COURT ON 23.03.2018 PASSED THE FOLLOWING: ## **ANNIE JOHN, J.** **-------------------------------B.A. No. 581 of 2018 ---------------------------------Dated this the 23[rd] day of March, 2018.** ## **ORDER** The petitioner is the first accused in Crime No. 50 of 2018 of Thrithala Police Station for offences punishable under Sections 406, 420 and 34 IPC. 2. The allegation against the petitioner is that the petitioner and his wife while working in Dubai made the de facto complainant to believe that if he invest money in his business of supplying building material and petroleum products, he would be provided profit for such investment and accordingly they invested Rs.2,18,000,00/-. It is further alleged that the the petitioner has not returned the money as assured and thereby he has committed the aforesaid offence. 3. The learned counsel for the petitioner submitted that the petitioner was working as an employee of the company owned by the de facto complainant. The said company was engaged in the supply of building materials. The de facto complainant has canvassed many NRIs in Dubai for investing in his business venture. Some of the NRIs, who had acquaintance with the petitioner, also invested money in his business concern. The de facto complainant had provided profit B.A. No. 581/2018 -2- to the investors as offered during the initial stages. Later, when the investors were not provided with profit, they started creating problems and the petitioner was compelled to hand over his cheques and other valuable documents as security. In fact, the entire transaction has taken place in Dubai and no part of the transaction has taken place in India. The creditors preferred complaints to the police resulting in the registration of Crime Nos. 401, 402, 403, 365, 409, 422, 428, 429, 431 of 2017 by the Thrithala Police for the offences punishable under Sections 406 and 420 IPC. The de facto complainant is also an accused in the aforesaid cases. The de facto complainant had committed theft of valuable documents, car and other personal belongings of the petitioner from his apartment, for which crime was registered by the police against the de facto complainant. Apprehending arrest and detention, the petitioner has filed this petition seeking anticipatory bail. 4. I have heard the learned Public Prosecutor as well. 5. According to the petitioner's counsel, in order to have financial transaction from Kerala, the de facto complainant maintained a client customer relationship with the Kotak-Mahindra, a private Banker. The de facto complainant, who had regular business with the Bank, got acquaintance with the petitioner, who was then working as B.A. No. 581/2018 -3- a staff in that Bank. It is also submitted that the petitioner was arrested and had undergone detention for 90 days. It is further contended that the offence has been committed outside India and therefore there is a bar under Section 188 Cr.P.C in conducting cases against him. Section 188 Cr.P.C deals with the offence committed outside India. It is profitable to extract Section 188 Cr.P.C, which reads thus: S.188. 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. From the above, it is clear that an inquiry and trial is permissible only with the sanction of the Central Government. The learned counsel for the petitioner has placed reliance on the decision of this Court in _**Mohamed Rafi v. State of Kerala[1]**_ , wherein it is held that the investigation into an offence punishable under Indian Penal Code, alleged to have been committed outside India by an Indian citizen does not require the sanction of the Central Government under > 1 2009(1) KLJ 745 B.A. No. 581/2018 -4- Section 188 of Cr.P.C. In _**Mohamed Rafi**_ i, a decision of a Full Bench of this Court in _**Mohamed v. State of Kerala[1]**_ has been referred to. In that decision, it is held that no sanction of the Central Government is necessary. The Kerala Police can conduct investigation into the offences committed abroad. The words 'dealt with' in Section 188 Cr.P.C must be held to include 'investigation', apart from 'inquiry' or 'trial'. The main part cannot be restricted to 'inquiry' and 'trial' used in the proviso. The words 'deal with' in the main part of Section 188 Cr.P.C is used in a wide sense. While proviso to Section 188 Cr.P.C requires sanction of the Central Government for the purpose of 'inquiry' and 'trial', the words 'deal with' in the main part must necessarily include at least 'inquiry' and 'trial'. 6. It is a settled principle that the police can register the FIR and conduct investigation, even if the offence is committed outside India. The word investigation is defined under Section 2(h) of Cr.P.C and it reads thus: (h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. As per Section 2(h) of Cr.P.C, the police has power to investigate this type of cases. But Section 188 of Cr.P.C clearly indicates that no such > 1 1994(1) KLT 464 B.A. No. 581/2018 -5- offence shall be inquired into or tried in India except with the previous sanction of the Central Government. In this connection it is pertinent to describe the word 'inquiry'. Inquiry means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. In _**Thariyath v. Fr. George**_[1] , it is held that an enquiry must be a proceedings by a Magistrate or a Court while an investigation relates to the steps taken by a police officer other than a Magistrate. Inquiry is meant to include everything done in a case by a Magistrate. The term 'inquiry' has a very wide connotation under the Criminal Procedure Code and it includes all steps taken by the Magistrate other than the trial conducted under this Code. ## 7. In **Padmarajan C.V v. Government of Kerala and** **others**[2] , in case of offences committed both within and outside the State, previous sanction of the Central Government is required to enquire into the matter. The power of remand is expressly conferred on the Magistrate by Section 309 (2) read with Section 209 of the Code. 8. The definition of the term "Inquiry" in Secion 2 (g) of the Code, runs thus - " 'inquiry' means every inquiry, other than a trial conducted under this Code by a Magistrate or Court ". > 1 1987 KHC 158 > 2 2009(1) KHC 65 B.A. No. 581/2018 -6- ## 9. In _**Nangia C.P., Assistant Collector of Customs, Bombay**_ _**v. Om Prakash Aggarwal & another**_[1] , it is held that the proceedings under Section 167(2) is judicial and the Magistrate acts in his judicial capacity. It is part of enquiry and is covered by Section 2(g) and falls within Section 309(1) of Criminal Procedure Code. 10. The petitioner's counsel argued that by virtue of Section 57 of Cr.P.C, in order to arrest an accused by the police, he needs to be produced before the Magistrate. The accused so produced before the Magistrate would prefer an application for bail and at the same time, the prosecution will prefer an application for remand. Therefore, the Magistrate has to enquire whether there is any justification in remanding the accused to the custody or releasing him on bail. Hence, according to the petitioner's counsel, in order to conduct such inquiry as defined under Section 2(g) of Cr.P.C, the sanction of the Central Government is required as the offence was committed outside India. 11. The entire transaction was effected outside India and on receipt of the complaint, the police can definitely investigate the case. In order to conduct an inquiry and trial, the prosecution has to obtain sanction from the Central Government. In this case, the prosecution has no case that they have obtained sanction from the Central > 1 1994 KHC 2496 B.A. No. 581/2018 -7- Government. I am of the view that in the absence of sanction from the Central Government, the inquiry and trial of the case is completely barred under Section 188 of Cr.P.C. 12. Now the apprehension of the petitioner is that if he is arrested and produced before the Magistrate, the Magistrate can take a decision in his bail application only after an inquiry. According to the petitioner's counsel, an inquiry relying on the bail application is also barred by Section 188 of Cr.P.C. 13. After hearing the learned counsel on both sides and on going through the CD files, I find that except the investigation by the police, the inquiry and investigation is barred under Section 188 Cr.P.C. Therefore, arrest and detention of the petitioner cannot be done as it hits by Section 188 Cr.P.C. Another important aspect to be considered is whether the petitioner can be charged under Sections 406 and 420 IPC. In order to attract Section 420 IPC, there must be an allegation that the petitioner had an intention to deceive the de faco complainant at the inception of the transaction itself. In fact, this is a dispute which arose in connection with a business concern and the question whether the offence under Section 420 IPC is attracted or not is a matter to be considered by the police while investigating the crime. B.A. No. 581/2018 -8- 14. I find some force in the contention of the learned counsel for the petitioner and I am of the view that custodial interrogation of the petitioner is not required in this case. Therefore, I am inclined to grant anticipatory bail by invoking Section 438 of the Cr.P.C on the following conditions: 1. The petitioner herein shall surrender before the SHO, Thrithala Police Station on or before 10.04.2018 between 10 a.m and 11 a.m. and he shall be released on bail on executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the Investigating Officer. 2. The petitioner shall appear before the SHO, Thrithala Police Station at 9 a.m. on every alternate Saturdays for three months, commencing from 14.04.2018. 3. The petitioner shall not influence the witnesses or tamper any evidence in this case. 4. If the petitioner violates any of the above conditions, the bail granted to him shall stand cancelled, forthwith. This application is allowed as above. **ANNIE JOHN, JUDGE.** B.A. No. 581/2018 -9- _Rv_