Allahabad High Court
Mohd. Saleem Sultan And Another vs State Of U. P. And Others on 10 July, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:111977-DB Reserved On-23.05.2024 Delivered On-10.07.2024 Case :- CRIMINAL MISC. WRIT PETITION No. - 9760 of 2021 Petitioner :- Mohd. Saleem Sultan And Another Respondent :- State Of U. P. And Others Counsel for Petitioner :- Abrar Ahmad,Pravesh Kumar Yadav Counsel for Respondent :- A.S.G.I.,G.A. Hon'ble Siddharth,J.
Hon'ble Syed Qamar Hasan Rizvi,J.
(Delivered by Hon'ble Siddharth,J.)
1. Heard Sri Pravesh Kumar Yadav, learned counsel for the petitioners; learned A.G.A. for the State and perused the material placed on record.
2. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 24.08.2019 registered as Case Crime No. 0820 of 2019, under sections- 403, 408, 409, 420 B IPC, Police Station- Loni, District - Ghaziabad, and for a direction to the respondents not to arrest the petitioner in pursuance of impugned First Information Report.
3. There is allegation in the FIR, in short, that the petitioner no.1 while working in the company of informant has embezzled about SAR 28 million (in rupees 52,19,20,000/-). He has transferred the aforesaid amount to accounts of his wife, petitioner no.2 and other persons. It is alleged that the aforesaid amount has been invested by the petitioners in number of schemes of builders.
4. Learned counsel for the petitioners submit that petitioner no.1 has been implicated in this case after proceedings under section 156 (3) Cr.P.C. He worked in the company of informant at Saudi Arabia from October, 2011 to March, 2019. There was no complaint against him during his period of working with the Company (Pure Foods Company L.L.C.). Most of the employees on higher posts of the companies were Pakistanis and they made false and frivolous complaint against the petitioner no.1. The petitioner no. 1 was trading in the market as side business after the working hours of the company. On account of new laws introduced in the Saudi Arabia, he transferred some money in account of his wife, who also did business with other Foreign Nationals at Dubai. In March, 2019, petitioner no.1, came to India but could not return to Saudi Arabia and, therefore, resigned from the company and here he was falsely implicated in the present case.
5. Learned counsel for the petitioners further submits that as per section 188 Cr.P.C., since the offence was committed by the petitioner no.1 outside India, being citizen of India, no such offence can be enquired or tried in India except after previous sanction of Central Government. No application has been filed by any authority before the Central Government seeking sanction for prosecution of petitioner no.1.
6. A counter-affidavit has been filed by Sub-inspector of Police, P.S.- Loni, District- Ghaziabad, wherein it has been stated that the provisions of Sections 188 and 189 Cr.P.C., are legal in nature and appropriate reply shall be given at the time of hearing of the case.
7. Reliance has been placed as per Sections 3 and 4 of IPC in counter-affidavit which are quoted hereinbelow:-
"Section- 3 :- Punishment of offences committed beyond, but which by law may be tried within, India.
Any person liable, by any, to be tried for an offence committed beyond shall be dealt with according to the provisions of this Code for any act committed beyond in the same manner as if such act had been committed within.
[4. Extension of Code to extra-territorial offences.-- The provisions of this Code apply also to any offence committed by [(1) any citizen of India in any place without and beyond India;
(2) any person on any ship or aircraft registered in India wherever it may be.] [(3) any person in any place without and beyond India committing offence targeting a computer resource located in India.] [Explanation.--In this section--
(a) the word "offence" includes every act committed outside India which, if committed in India, would be punishable under this Code;
(b) the expression "computer resource" shall have the meaning assigned to it in clause (k) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);]"
8. After hearing the rival contentions, a look at section 188 Cr.P.C., is also required which is quoted hereinbelow:-
"188 Cr.P.C. 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."
9. This Court finds that there is no conflict between sections 3 and 4 of IPC on the one hand and section 188 Cr.P.C., on the other. As per sections 3 and 4 IPC an Indian citizen, who has committed offence beyond this country can be tried in the same manner as if such act has been committed within this country. The provisions of IPC will apply to such citizen. However, section 188 Cr.P.C., mandates that when an offence is committed outside India, by a citizen of India, he can be tried anywhere within India, but with previous sanction of Central Government.
10. In the counter-affidavit, nothing has been stated whether the sanction from the State Government for prosecution of the petitioners has been taken or not. In the case of Ajay Agarwal Vs. Union of India, AIR 1993 SC 1637 the Apex Court has held that consent of Central Government may be obtained before the trial begins. It is not necessary that consent should be obtained before taking cognizance.
11. In view of the above, the writ petition is disposed of with direction that till the prosecution obtains sanction under section 188 Cr.P.C., from the Central Government, the investigation of the case shall be done by investigating officer but before trial begins sanction should be obtained from the Central Government for prosecution of the petitioners.
Order Date :-10.07.2024 Abhishek (Syed Qamar Hasan Rizvi,J.) (Siddharth,J.)