Mujeeb Rahman Edakandiyil, Aboobacker Siddique, Jabir. E.P. and Haneefa Vellangotte vs State of Kerala and Al Able Trading Contracting Wll

K. Ramakrishnan, J.—This is an application filed by the accused Nos. 1 to 4 in CC. 1023/2013 on the file of the Judicial First Class Magistrate Court-II, Thamarassery, to quash the proceedings u/s 482 of Code of Criminal Procedure (herein after called the Code). It is alleged in the petition that the case was taken on file on the basis of Annexure-1 private complaint filed by the second respondent herein alleging that the accused have committed the offences punishable under Sections 420, 468, 471, 341, 506(ii) of I.P.C. and 120(B) of Indian Penal Code. Sworn statement of the complainant and one witness were taken and the learned Magistrate has taken cognizance of the case as CC. 1023/2013 under Sections 420, 468, 471, 341 & 506(ii) of Indian Penal Code against accused Nos. 1 to 3 and u/s 120(B) and 506(ii) against the 4th accused as per Annexure-4 order. It is also mentioned in the same order that learned Magistrate has issued non-bailable warrants to accused numbers 1 to 3 and summons to 4th accused and issued direction to Passport Officer, Kozhikode, to take steps to impound the passport of accused Nos. 1 to 3 u/s 10(3) (e) and (h) of Indian Passport Act, 1967. It is alleged in the petition that immediately on knowing about the order, they moved this court by filing this application and obtained stay of operation of the order regarding impounding of passport. In spite of that, when first accused came to India and wanted to go abroad, his passport was taken by the Immigration Officer of the airport inspite of allowing the order of stay passed by this court and it was returned to them on the next day by the passport officer and thereafter he went abroad. According to the petitioners, even going by allegations in the complaint, entire transaction has taken place abroad and by virtue of Section 188 of the Code without getting prior sanction of the Central Government, the Magistrate should not have taken cognizance of the case and they wanted to quash the proceedings on that ground. Hence, this petition.

Heard the counsel for the petitioners and counsel for the second respondent and the learned Public Prosecutor.

The counsel for the petitioner submitted that by virtue of Section 188 of the Code the Magistrate was wrong in taking cognizance of the case as even going by the allegations in the complaint, the entire transactions had taken place outside India. The counsel also submitted that if for any reason this court found that sanction need be produced later, then the Magistrate may be directed to grant bail to the petitioners on their surrender before the court and their personal appearance may be dispensed with.

On the other hand, the counsel for the second respondent submitted that in view of the decision reported in 2011 KHC 4798 Thota Venkateswarlu v. State of A.P. And Another, even if an offence has been committed outside India there is no bar to the court in India to take cognizance but it only bars only proceed with the trial of the case. So, no illegality has been committed by the learned Magistrate in taking cognizance of the case. The Magistrate has got power under Section. 87 of the Code, even at the initial stage instead of issuing summons, warrant also can be issued.

The learned Public Prosecutor also supported the submissions of the counsel for the second respondent.

It is seen from the Annexure-1 complaint that the entire transaction had taken place outside India and it is also alleged that some of the transactions had taken place in India as well. Section 188 of the Code 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.

But in the decision reported in Thota Venkateswarlu case cited supra, it has been observed as follows regarding the scope of Section 188 of the Code.

The language of S.188 Cr.P.C. is quite clear that when an offence is committed outside India by a citizen of India, he may be dealt with in respect of such offences as if they had been committed in India. The proviso, however, indicates that such offences could be inquired into or tried only after having obtained the previous sanction of the Central Government. As mentioned herein before, in Ajay Agarwal''s case (supra), it was held that sanction under S.188 Cr.P.C. is not a condition precedent for taking cognizance of an offence and, if need be, it could be obtained before the trial begins upto the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to S.188 Cr.P.C. However, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government. The Magistrate is, therefore, free to proceed against the accused in respect of offences having been committed in India and to complete the trial and pass judgment therein, without being inhibited by the other alleged offences for which sanction would be required. It may also be indicated that the provisions of the India Penal Code have been extended to offences committed by any citizen of India in any place within and beyond India by virtue of S.4 thereof. Accordingly, offences committed in Botswana by an Indian citizen would also be amenable to the provisions of the Indian Penal Code, subject to the limitation imposed under the proviso to S.188 Cr.P.C.

So, it is clear from the above dictum that if an Indian Citizen has committed an offence outside India, there is no bar for filing a complaint in India and the courts in India taking cognizance of the case but only the bar provided therein is that without getting the sanction of the Central Government as provided u/s 188 of the Code, the trial or enquiry of the case should not be proceeded with. So, there is no illegality committed by the learned Magistrate in taking cognizance of the case.

Similarly, if the court is satisfied with the grounds mentioned in Section 87 of the Code, the court can even issue non-bailable warrant in lieu of summons in a warrant trial case. But, such power can be exercised by the Magistrate only in exceptional cases. It is also settled law that the Magistrate has no power to impound passport but as a condition for granting bail probably he may impose to surrender passport if he so considers and that also is not a condition precedent for granting bail in all cases. So, in this case, the direction given by the Magistrate to the passport authorities to take steps to impound the passport appears to be not correct. To that extent, the order passed by the Magistrate has to be set aside and I do so. The counsel for the petitioners submitted that a direction may be given to the Magistrate if they surrender before the Magistrate to grant bail and if they apply for exemption of personal appearance, the same can be allowed. I feel that it is not proper on the part of this court to give such a direction as such. But, this court can give direction to the Magistrate to consider the bail application if any filed by the petitioners on their surrender before that court and dispose the applications in accordance with the law without delay as far as possible on the same date. Similarly, the Magistrate can also consider the application if any filed by the accused for getting their personal appearance exempted during the period of trial and dispose of the same in accordance with law. In this case the identity of the accused is not disputed. The counsel for the petitioners seeks reasonable time for surrender before the court below. Considering the circumstances, I feel that two months'' time can be granted to the petitioners to surrender before the Magistrate and move for bail. Till then the non-bailable warrant issued against accused 1 to 3 is directed to be kept in abeyance. If the petitioners surrender before the concerned Magistrate court and move for regular bail and also move for exemption from personal appearance u/s 205 of the Code, considering the fact that the identity is not disputed, the Magistrate can consider the same and dispose of the applications in accordance with law. If the petitioners fail to appear within the time specified above, then the Magistrate is at liberty to proceed with the case and take steps to get the presence of the accused in accordance with law.

With the above observations and directions, the application is disposed of.