Delhi District Court
State vs Nijamuddin on 5 March, 2025
IN THE COURT OF SH. PRANAV JOSHI, ADDITIONAL
CHIEF JUDICIAL MAGISTRATE, NEW DELHI, PATIALA
HOUSE COURTS, DELHI
Cr. Cases No. 14441/2018
CNR No. DLND020089442018
STATE Vs. NIJAMUDDIN
FIR No. 273/2018
PS. IGI AIRPORT
U/S 24 EMIGRATION ACT
1) The date of commission : 27.05.2018
of offence
2) The name of the complainant : Sh. Ashok Kumar
3) The name & parentage of accused : Nijamuddin,
S/o Kamaruddin,
R/o Village Godila,
Shahganj, Distt.
Jaunpur, U.P.
4) Offence complained of : U/s 24 Emigration
Act.
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 05.03.2025
Date of Institution : 21.06.2018
Reserved for Judgment : 05.03.2025
Date of Decision : 05.03.2025
Cr. Case No. 14441/2018 State Vs Nijamuddin Page No. 1/6
JUDGMENT
1. Briefly stated the case of the prosecution is that on 27.05.2018, the accused approached the immigration desk for immigration clearance and during scrutiny of his travel documents, it was found that he has departed to UAE on 26.08.2016 from Delhi on the strength of Indian passport No. L9013575 and UAE tourist visa. That the accused was holding an emigration check required passport. That the accused was also holding a KSA employment Visa No. 2320296084 issued on 02.06.2016 which was valid for 90 days, which he did not show to the immigration official at the time of his departure. That after arriving to UAE, he had affixed said KSA employment visa No. 2320296084 on his passport at page number 19 and departed to KSA from UAE, thereby avoiding necessary POE clearance at the time of departure from Delhi. That there was no POE record available on the website emigrate.gov.in nor on his passport for employment in KSA or with his employer at KSA. After completion of the investigation, charge sheet was filed against the accused under section 24 Emigration Act.
2. Upon filing of the present chargesheet, vide order dated 21.06.2018, cognizance of the offence was taken and accused Nijamuddin was summoned. After complying with the provisions of Sec. 207 Cr.P.C, arguments on charge were heard and vide order dated 10.02.2020, charges for offence under section 24 Emigration Act was framed against the accused, to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for recording of the prosecution evidence.
3. The prosecution has examined as many as two Cr. Case No. 14441/2018 State Vs Nijamuddin Page No. 2/6 witnesses. Prosecution examined Sh. Ashok Kumar, Jr/II, as PW1, who deposed that in the year 2018 and in the month of May (did not remember the exact date), he was posted at IGI Airport, in the arrival wing and was performing the duty of checking the passports and other documents in the arrival wing. That during his duty hours, one passenger came in the arrival wing at my counter No.14. That the accused Nijamuddin approached his counter no.14 and he asked him to show the passport and boarding pass. That the accused showed both the documents to me. Thereafter, he put the passport in the scanner which is provided to us for the checking of the passport. That in the passport, the work Visa of Soudi Arabia was there and he had come from Soudi Arabia only. However, when he checked his departure, his last departure was that of Dubai on tourist Visa and the departure was of about two years back i.e. of 2016. That the passport of the accused was of ECR (Emigrant Check Required) category. That a person possessing the ECR category passport is required to give details of the company and the wages and the work hours in the company on the protector of Emigrant Government Portal. That to avoid the process of giving the details on the protector of Emigrant Government Portal, the accused Nijamuddin visited Dubai on the strength of Tourist Visa. That upon checking the passport, it was revealed that the Visa of Soudi Arabia was dated prior to the date of his departure to Dubai. That it became quite vivid that the accused Nijamuddin had pasted the Soudi Arabia Visa on the passport upon reaching Dubai. That thereafter, he also checked the POE record. However, the POE record was not available on the site. That in view of the above said circumstances, it became clear that the Cr. Case No. 14441/2018 State Vs Nijamuddin Page No. 3/6 accused Nijamuddin had cheated the Indian immigration and therefore, he gave a written complaint Ex. PW1/A to the SHO, PS IGI Airport. That along with the complaint, he also handed over the accused Nijamuddin to the police in PS IGI Airport. That he also gave the passport of accused Nijamuddin and other documents to the police in the PS IGI Airport. The witness identified the accused as well as his passport. That the witness has also shown page No.18 of the passport bearing his seal dated 26.05.2018 and stated that the seal was put by him in the performance of his duty. The witness was shown the camera image that was provided by him to the police. The witness correctly identifies the same bearing his signature. The witness was cross-examined by Ld. Counsel for the accused.
4. The prosecution examined Ct. Parveen as PW2, who deposed that on the day of incident, he joined the investigation with IO of the case and accused Nijamuddin was arrested by the IO in his presence and IO prepared his arrest memo Ex.PW2/A. PW2 was cross-examined by Ld. Counsel for the accused.
5. During the trial of the case, it was observed by Ld. predecessor of this Court that sanction u/s 27 Emigration Act was not obtained by prosecution. Therefore, inquiry was made from the IO. For prosecution of a case u/s 24 Emigration Act, sanction is required u/s 27 of the Act. Section 27 of Emigration Act provides that no prosecution shall be instituted against any person in respect of any offence under this Act without the previous sanction of the Central Government or such officer or authority as may be authorised by that Government by order in writing in this behalf.
Cr. Case No. 14441/2018 State Vs Nijamuddin Page No. 4/66. It was held by Hon'ble Supreme Court in Thota Venkateswarlu Vs. State Of A.P. Through Principal Secretary & Anr., 2011 11 S.C.R. 95:
"10. The language of Section 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 lf 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 Aggarwa/'s case (supra), it was held that sanction under Section 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. Even in his concurring judgment, R.M. Sahai, J., observed as follows :
"29. 'Language of the section is plain and simple. It operates where an offence is committed by a citizen of India outside the country. Requirements are, therefore, one -commission of an offence; second - by an Indian citizen; and third- that it should have been committed outside the country."
Although the decision in Ajay Aggarwal's case (supra) was rendered in the background of a conspiracy alleged to have been hatched by the accused, the ratio of the decision is confined to what has been observed herein above in the interpretation of Section 188 Cr.P.C. The proviso to Section 188, which has been extracted herein before, is a fetter on the powers of the investigating authority to inquire into or try any of offence mentioned in the earlier part of the Section, except with the previous sanction of the Central Government. The fetters, however, are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of Section 188 is required till commencement of the trial. It is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central Government would be required before the trial could commence.
11. Accordingly, upto the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to Section 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."
7. From the law cited above, it is clear that when an offence is committed outside India by an Indian citizen, trial of Cr. Case No. 14441/2018 State Vs Nijamuddin Page No. 5/6 the offence cannot take place without the sanction of Government. In the present case, no sanction was obtained by the prosecuting agency and even trial of the case began without compliance of section 27 Emigration Act. Therefore, the trial of the case is hit by section 27 of Emigration Act and hence void. In view of these circumstances, the examination of the accused under section 313 Cr.P.C was dispensed with.
8. In view of the above discussion, the charge against the accused Nijamuddin under section 24 Emigration Act must fail. The accused Nijamuddin is accordingly acquitted of the charges under 24 Emigration Act. Digitally signed by PRANAV PRANAV JOSHI JOSHI Date:
Announced in open Court 2025.03.05
16:28:04
On this 05th March, 2025 +0530
(PRANAV JOSHI)
ACJM-01/PHC/NDD
Cr. Case No. 14441/2018 State Vs Nijamuddin Page No. 6/6