Delhi District Court
Vinder Kumar vs State on 18 January, 2016
Cri. Rev. no.162/14
Vinder Kumar v. State
18.01.2016
Pre: Ld. APP for the State.
None for the revisionist.
File perused, vide separate detailed order placed along side in the
file revision petition is dismissed. Parties are directed to appear
before ld. Trial court on 29.01.2016. Trial Court record, if any, be sent
back with a copy of the order to proceed in accordance with law.
Revision petition/ proceedings be consigned to record room.
(RAJ KAPOOR)
ADDITIONAL SESSIONS JUDGE-03
PATIALA HOUSE COURTS NEW DELHI
1
IN THE COURT OF SH. RAJ KAPOOR, ADDL. SESSIONS JUDGE -
03, PATIALA HOUSE COURTS NEW DELHI DISTRICT, NEW DELHI.
Criminal Rev. No.162/14
IN THE MATTER OF :
Vinder Kumar
s/o Sarvan Kumar
r/o Village Kanshi Nagar, PO Mehtan Distt.
Kapurthala, Punjab.
..............Revisionist
Versus
State
FIR no.574/11
U/s 474 IPC
PS IGI Airport
................Respondent
18.01.2016
ORDER
1. This revision petition is directed against the order dated 02.12.2014 in the above noted case passed by ld. MM (hereafter referred as impugned order) whereby ld. Trial court framed a charge against the revisionist for the offence u/s 474 IPC.
2. Briefly facts of the case are that ld. Trial court after perusal of the case file and material available on record framed a charge vide dated 02.12.2014 against the revisionist u/s 474 IPC stating that on or before 12.12.2011, at arrival wing immigration IGI Airport within the jurisdiction of PS IGI Airport, accused had in possession of Passport bearing no. F-7829598 on which Chinese Visa was affixed on page no.5 which was fraudulently and dishonestly intended to use as 2 genuine and the said documents falls under one of the description mentioned in section 467 IPC being a valuable security. Feeling aggrieved with the impugned order / charge dt. 02.12.2014 ld. counsel filed this revision petition.
3. Arguments were heard at length. During the course of arguments Ld. counsel for the revisionist submitted that there is no jurisdiction of the court of ld. MM for framing the charge against the accused/ revisionist vide order dated 02.12.2014 since offence was committed in Malasia therefore, the court of ld. MM has no jurisdiction. In support of his contentions he has relied upon the following citations:-
992 (2)Crimes 607 - Man Mohan Chopra v. Ravi Prakash, in this case it has been observed that:-
"In that case, it was held that before the provisions of section 188 of the Code of Criminal Procedure could apply to a case, it was necessary to establish that the crime was committed outside British India. In that case, the mis-representation by the appellant, the false certification by Henderson and the resulting payment having been made respectively at Simla, Jhansi and Lahore which were all in British India. In that case, the posting of the cheques was at Kolhapur. Kolhapur was within Indian State. It was contended that the posting of the cheque at Kolhapur would amount to delivery of them to the appellant at Kolhapur, the post office being the agent of the appellant. That contention was not accepted. So it was held that section 188, Criminal Procedure Code will not apply to that case. In the case before me, the cheques were sent by the first acc-used from London. But it is not the contention of the learned counsel for the petitioner that because cheques were posted at London, that would amount to delivery of the cheques at London and hence part of cause of action for offence under section 420, Indian Penal Code had arisen at London. So this ruling would not apply to the facts of the case before me. Delivery of textiles in pursuance of the representation was only at London. It is the clear case set out in the complaint that the complainant started exporting textiles to first accused at Raxshire, London. Only in that way, part of the ingredients of 3 the offence under section 420, Indian Penal Code viz., delivery of the property in pursuance of the representation made by the first accused at London, part of the cause of action for offence under section 420 Indian Penal Code had arisen. Even in such a case certificate required under section 188 Criminal Procedure Code is necessary. The learned Counsel appearing for the respondent contended that since accused No.1 can be tried in India, accused No. 2 also can be tried in India in view of section 223 (b), Criminal Procedure Code. In the instant case, as I have already pointed out, allegations in the complaint do not make out an offence under section 420, read with section 109, Indian Penal Code. Hence the occasion to invoke section 223(b), Criminal Procedure Code does not arise in this case. My discussion above would go to show that the allegations made against the second accused do not make out an offence under section 420 read with section 109, Indian Penal Code. It is also clear that offence under section 467, Indian Penal Code was committed at London and part of cause of action for offence under section 420, Indian Penal Code had also arisen at London and in view of the absence of certificate under the proviso to section 188, Criminal Procedure Code, the prosecution for those offences is also liable to be quashed.
2015(2) Crimes 435 (Mad.) Karthik Theodre v. State, in this case it has also been observed that:-
5.On account of Section 4 IPC, the accused can be prosecuted for offence in India, but with the following caveat, namely Section 188 Cr.P.C. Section 188 Cr.P.C. states as follows:
''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.
6.A bare reading of this provision shows that, without the previous sanction of the Central Government, the trial Court 4 ought not to have tried this case at all. The Supreme Court in Ajay Aggarwal v. Union of India [1993 (3) SCC 609] has held that sanction from the Central Government can be obtained even after the Court in India had taken cognizance.
In this case, even during trial no sanction under Section 188 proviso was obtained. It is also not a curable defect under Section 465 Cr.P.C. because Section 465 Cr.P.C. deals with error or irregularity in sanction and does not condone total absence of sanction.
7.Why should there be a sanction from the Central Government to try an Indian for the offence he committed abroad? One answer that comes to my mind is, the first principle in Criminal Jurisprudence is 'Lex Loci Delictus' the law of the place where the crime took place. The second principle is, if the trial is held in the place where the offence was committed, then both the sides will have a fair opportunity to examine their witnesses. By conducting the trial in India for an alleged offence that took place in Australia, the accused was seriously prejudiced because it would have been really impossible for him to get his witnesses from there. The Parliament in its wisdom has therefore empowered the Central Government to completely analyse every facet of a case and only after its sanction can Indian Courts try the offender.
1991 JCC 333 - Afsar Hussain v. State through CBI, in this case it has also been observed that:-
"(15) Learned counsel for the petitioner has placed reliance upon Sec. 188 of the Code of Criminal Procedure which provides that when an offence is committed outside India by a citizen of 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. According to him, the petitioner was found in U.P. or in any case at Delhi and, thus, could be tried only at these places and not at Bombay. At this stage, in my view, I am not to finally decide about the point of jurisdiction. However, apparently accordingly to the Fir the offence was committed at Bombay and Jeddah and, thus, provisions of Sec. 188 would be attracted. However, it is too early to given any positive finding on this point but prima facie I am clearly of the view that there was nothing wrong in the I.0. having obtained the warrant of arrest against the petitioner from the court of ACMM Bombay."
On the strength of of the above submissions and citations, ld. Counsel for the revisionist submitted that revision petition be allowed. 5
4. Contrary to it, ld. APP submitted that passport was issued by the Indian Embassy in Malaysia, which is a valuable security and covered under section 30 of the IPC. He further submitted that a forged Chinese visa on the Indian passport of revisionist at page no.5 was found. Ld. APP again submitted that revisionist was apprehended at IGI Airport during immigration clearance. Ld. APP further submitted that China Govt. has reported that alleged visa was not issued by Chinese Govt. and it is a forged visa. On these grounds, ld. APP submitted that revision petition is liable to be dismissed.
5. I have given careful consideration to the submissions of ld. Counsel for the revisionist and ld. APP as well. I have also perused the above referred citations as relied upon by the ld. Counsel for the revisionist. These citation 'Man Mohan Chopra v. Ravi Prakash' is not applicable in the present case since facts of the judgment are entirely distinct from the present case. The contention raised by ld. Counsel for the revisionist that offence has been committed in Malaysia therefore, sanction of the Central Govt. is necessary before trying the case in India, is not sustainable precisely for the reasons that there is already a sanction order dated 04.09.2013 in the file. Therefore, citations referred above i.e. 'Karthik Theodre v. State' and 'Afsar Hussain v. State through CBI' are also not applicable, as sanction is already on record. Besides, in the case in hand, it has clearly 6 come on record that passport was issued by the Indian Embassy in Malaysia, which is a valuable security and covered under section 30 of the IPC. A forged Chinese visa was found affixed on the Indian passport of revisionist at page no.5. Besides, revisionist was apprehended at IGI Airport, India during immigration clearance. Furthermore, China Govt. has reported that alleged visa was not issued by Chinese Govt. and it is a forged visa. Apart from this, determination of the fact on charge is exclusively domain of the original court of jurisdiction yet this court has limited jurisdiction to enter into the area of discretion of Ld. M.M. on the ground of propriety and correctness. Besides, this court is conscious of the fact that to arrive at a prima facie view for framing of charge is the sole discretion of the Court of ld. ACMM. So, I do not find the impugned order dt. 02.12.2014 either suffering from infirmity, illegality or incorrectness. Therefore, in light of these facts and circumstances of the case, the revision petition is dismissed. Parties are directed to appear before ld. Trial court on 29.01.2016. Trial Court record, if any, be sent back with a copy of the order to proceed in accordance with law. Revision petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 18.01.2016 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI 7