ABDUL RAHIMAM Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 2nd 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 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 2nd respondent has entered appearance. I heard the counsel on both sides and also the learned Public prosecutor.

(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 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 KerLJ 234, Muhammed Sajeed v. State of Kerala, 1995 1 KerLT 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 KerLT 794, 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.