Madras High Court
Dr.S.Karthikeyan vs E.Vedavanam on 9 December, 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 09.12.2014 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Crl.O.P.No.22158 of 2014 and M.P.Nos.1 and 2 of 2014 Dr.S.Karthikeyan ... Petitioner -Versus- 1. E.Vedavanam 2. Sathyakala Rajangam ... Respondents Prayer:- Criminal Original Petition filed under Section 482 Cr.P.C., praying to call for the records relating to C.C.No.7661 of 2014 on the file of the learned X Metropolitan Magistrate, Egmore, Chennai for an offence under Section 494 read with 107 of IPC and quash the same in so far as the petitioner is concerned. For Petitioner :Mr.R.Shivakumar for M/s.K.M.Vijayan Associates For 1st Respondent : Mr.S.Baskaran For 2nd respondent : No appearance ORDER
The petitioner is the 2nd accused in C.C.No.7661 of 2014 on the file of the learned X Metropolitan Magistrate, Egmore, Chennai. The 1st respondent is the complainant and the 2nd respondent is the 1st accused in the case. The 1st respondent has filed the private complaint alleging that the petitioner has committed an offence punishable under Section 494 read with 107 of IPC. Seeking to quash the said proceedings, the petitioner is before this Court with this petition.
2. I have heard the learned Counsel for the petitioner and the learned Counsel for the 1st respondent. There is no representation for the 2nd respondent. I have also perused the records carefully.
3. Among other grounds, the learned Counsel for the petitioner would submit that the alleged second marriage was celebrated in United Kingdom i.e. outside the Indian territory. The learned Counsel for the petitioner would further submit that for a court to take cognizance of the offences committed outside the India as required under Section 188 of Cr.P.C., sanction should have been obtained from the Central Government. In this case, according to the petitioner, no such sanction has been obtained and thus, the order of the learned X Metropolitan Magistrate, Egmore, Chennai taking cognizance of the offence committed outside the territorial jurisdiction of India is illegal and on that ground, the entire proceedings have to be quashed.
4. The learned Counsel for the 1st respondent would submit that seeking sanction, the petitioner has already made an application to the Central Government and the same is pending. The learned Counsel would further submit that even in paragraph 32 of the complaint, it is stated that a reply has been received by the complainant from the Department stating that the complainant has to approach the Home Ministry for sanction under Section 188 of Cr.P.C. Thereafter only, the court below has taken cognizance for an offence under Section 499 read with 107 of IPC, he contended.
5. The learned counsel for the 1st respondent would further submit that sanction under the proviso to Section 188 of Cr.P.C. is not at all required to take cognizance of an offence committed outside the territory of India. His further contention is that sanction is required only to commence the trial of the case against the accused. Therefore, the original petition is liable to be dismissed, the learned counsel contended.
6. I have considered the above submissions carefully.
7. Before entering upon further debate into the legal issues raised, let us have a quick look into Section 188 of Cr.P.C. which reads 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."
8. While reading the above said provision, one should not lose sight of the language used in the proviso to Section 188 of Cr.P.C. which states that no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government. Thus, sanction is required either to inquire into the offence or to try the offender. The term inquiry is defined in sub-section (g) of Section 2 of Cr.P.C. which reads as follows:-
(g) inquiry means every inquiry, other than a trial, conducted under this Code by a Magistrate or court; It is needless to point out that it is too well settled that trial commences after the framing of charges in a case involving offences exclusively triable by a court of session. In respect of warrant-cases triable by Magistrates, and summons cases by Magistrates, the trial commences, as soon as the accused does not plead the guilty. Therefore, any proceeding conducted by a court, before the trial commences, is an inquiry as defined in sub-section (g) of Section 2 of Cr.P.C. Thus, it is crystal clear that either to commence inquiry or to commence the trial, sanction as per proviso to Section 188 of Cr.P.C. is necessary.
9. Let us now have a survey of few judgements cited at the bar. The first one is that of the Hon'ble Supreme Court in Ajay Agarwal v. Union of India and others, 1993 (3) SCC 609 : AIR 1993 SC 1637. That was a case where the Hon'ble Supreme Court was concerned with an offence of conspiracy. The plea taken before the Hon'ble Supreme Court was that the conspiracy was hatched outside the territory of India and, therefore, no sanction was required under proviso to Section 188 of Cr.P.C. But, the Hon'ble Supreme Court held that an offence of conspiracy being a continuing offence, though conspiracy was hatched outside the territory of India, since the consequential acts of conspiracy were committed in India when the parties to the conspiracy were still continued to be the parties to the conspiracy, the said offence of conspiracy cannot be held to have been committed exclusively outside the territory of India. In other words, the Hon'ble Supreme Court has held that a part of the offence of conspiracy was committed in India and, therefore, there was no need for obtaining sanction from the Central Government under proviso to Section 188 of Cr.P.C. In this regard, we may refer to para 25 of the judgement which reads as follows:-
25. A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of facts. So long as it-; performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity
10. Having said so, the Hon'ble Supreme Court did not proceed further to examine the question as to the circumstances under which sanction is required under the proviso to Section 188 of Cr.P.C. This is evident from the following passage in para 27 of the judgement:-
.......The case may be different if the offences were committed out side India and are completed in themselves without conspiracy. Perhaps that question may be different for which we express no opinion on the facts of this case. ....
11. Thus, Ajay Agarwal's case cited supra, is all about an offence committed partly in India and partly outside the Indian territory. Therefore, the said judgement cannot be made use of to decide the issue in the case on hand.
12. The Hon'ble Supreme Court, again, had to deal with the similar situation in Thota Venkateshwaralu v. State of Andhra Pradesh, (2012) 1 MLJ (Crl) 341. That was again a case where some offences were committed in India and some others were committed exclusively outside the Indian territory. To be precise, the offences under Sections 3 and 4 of The Dowry Prohibition Act were committed in India and the offences under Sections 498-A and 506 of IPC were committed in Botswana. In that case, the Hon'ble Supreme Court referred to the judgement in Ajay Agarwal's case cited supra. The Hon'ble Supreme Court did not find fault with the order of the learned Magistrate taking cognizance because some offences were committed on Indian soil. The Hon'ble Supreme Court, therefore, held that so far as the offences committed in India were concerned, the trial court could proceed with the trial. So far as the offences committed in Botswana were concerned, the Hon'ble Supreme Court held that the trial court could proceed with the trial only in the event, sanction was obtained from the Central Government as per the proviso to Section 188 of Cr.P.C.
13. For arriving at the said conclusion, the Hon'ble Supreme Court interpreted Section 188 of Cr.P.C. in such a way to say that upto the stage of taking cognizance no previous sanction would be required from the Central Government, but, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government. That was a case instituted on a police report, upon which cognizance was taken by the learned Magistrate. In order to summon an accused after taking cognizance on the police report, there is no further inquiry held by the Magistrate. In such event, on appearance of the accused, the Magistrate has to wait for sanction from the Central Government to commence the trial. But, in a case instituted on a private complaint, the position is totally different. Of course, under Section 190 (a) of Cr.P.C. the Magistrate takes cognizance of the offences on the complaint. But, immediately after taking cognizance, summons cannot be issued because the complainant has to pass the hurdle under Section 203 of Cr.P.C. The Magistrate holds inquiry by recording the statement of the complainant under Section 200 of Cr.P.C. and that the witness / witnesses under Section 202 of Cr.P.C. The Magistrate can also order for investigation, if need be, under Section 202 of Cr.P.C. and then after considering all these materials along with the complaint, the Magistrate has to decide whether the complaint should be dismissed under Section 203 of Cr.P.C. or should be proceeded with further to issue summons under Section 204 of Cr.P.C. Thus, for issuance of summons to the accused under Section 204 of Cr.P.C., the proceeding conducted by the court, immediately after cognizance is taken, is "inquiry" in terms of sub-section (g) to Section 2 of Cr.P.C. The words "result of the inquiry" as employed in Section 203 of Cr.P.C. itself is an indication to this. As I have already pointed out, as per proviso to Section 188 of Cr.P.C. sanction is required either for inquiry or for trial.
14. The above said two judgements of the Hon'ble Supreme Court cited by the learned counsel for the 1st respondent, as I have already pointed out, relate to the cases instituted on the police reports where there is no inquiry held for the purpose of issuing summons to the accused. Therefore, as held by the Hon'ble Supreme Court, sanction under the proviso to Section 188 of Cr.P.C. would be required only for commencing the trial. But, in a case instituted on a private complaint since issuance of summons to the accused under Section 204 of Cr.P.C. is preceded by inquiry held by the Magistrate, sanction is required under proviso to Section 188 of Cr.P.C. even to commence such inquiry. If such an inquiry is conducted without there being a sanction from the Central Government, then, the consequential order for issuance of summons to the accused is illegal. To make it clear, I should say that the order taking cognizance by the Magistrate on the private complaint is not illegal since no sanction is required upto the stage of taking cognizance, but, the order under Section 204 of Cr.P.C. issuing summons by holding inquiry without sanction is illegal. Therefore, though the order taking cognizance on the private complaint does not deserve to be quashed, the order issuing summons to the accused under Section 204 of Cr.P.C. deserves to be quashed. The remedy for the complainant is to get sanction from the Central Government as per proviso to Section 188 of Cr.P.C. and produce the same before the trial court. If once such sanction is produced, then, it would be lawful for the learned Magistrate to commence inquiry and then to issue summons under Section 204 of Cr.P.C. to the accused.
15. In view of the above, the criminal original petition is partly allowed in the following terms:-
(i) The order of the learned X Metropolitan Magistrate, Egmore, Chennai, directing issuance of summons to the accused under Section 204 of Cr.P.C. is hereby quashed.
(ii) The order of the learned Magistrate taking cognizance of the offences is not quashed leaving it open for the 1st respondent / complainant to obtain sanction as per proviso to Section 188 of Cr.P.C. from the Central Government and produce the same before the learned Metropolitan Magistrate. As soon as such sanction is made available, the Metropolitan Magistrate shall hold inquiry and then proceed with further either under Section 203 of Cr.P.C. or under Section 204 of Cr.P.C.
Index : yes. 09.12.2014
Internet : yes.
tsi/kmk
To
1. The X Metropolitan Magistrate, Egmore, Chennai.
2. The Public Prosecutor, High Court, Chennai.
S.NAGAMUTHU, J.
tsi / kmk
Crl.O.P.No.22158 of 2014
09.12.2014