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2002 DIGILAW 520 (KER)

Oman National Dairy Products Company Limited v. Director General Of Police

2002-08-01

M.RAMACHANDRAN

body2002
JUDGMENT M. Ramachandran, J. 1. The first petitioner is a company, represented by its Managing Director, and the second petitioner is the Managing Director. The Original Petition had been filed on 26th July 2000 interalia praying that a direction maybe issued commanding the second respondent to register a case on the basis of Ext. P-3 complaint and have the same investigated by the Crime Branch of the Kerala Police and to take follow up action. 2. At the time of filing the Original Petition, there were only two respondents Director General of Police, Police Headquarters, Thiruvananthapuram and the State of Kerala represented by the Secretary, Home Affairs. In view of the directions that had been passed by this Court on 28th March 2001, additional respondents were impleaded as they might have been affected by the outcome of the Original Petition. 3. In fact the allegation in the Original Petition was that the said additional respondents, who were employees of the petitioner Company, and who were Indian citizens, had committed theft of large sums of money and had indulged in misappropriation of company's fund and had left Sultanate of Oman through illegal means, carrying away the misappropriated money. It was claimed that the passports issued in favour of the said persons were in the possession of the company in tact and a formal complaint had been submitted with the Indian Embassy and the Directorate of Labjur Affairs Department of the Sultanate of Oman. The petitioners have also made reference to the complaint that had been lodged with the Royal Oman Police, but submits that since the additional respondents had made themselves scarce, they had been informed that until they were apprehended nothing effective was possible to be done at Oman. Est. P-3 complaint had therefore been submitted by the petitioners before the Director General of Police and 47 documents were attached along with the complaint and it is seen to have been forwarded on 1st November 1999. 4. A statement has been filed on behalf of the first respondent, by the Deputy Superintendent of Police, Special Team, Police Headquarters, Thiruvananthapuram on 5th September 2000 and no progress in the matter had been reported. The statement pointed out the defect in the Original Petition, that persons against whom the complaint had been lodged, had not been made parties to the Original Petition. Nevertheless, it had been submitted that on receipt of Ext. The statement pointed out the defect in the Original Petition, that persons against whom the complaint had been lodged, had not been made parties to the Original Petition. Nevertheless, it had been submitted that on receipt of Ext. P-3 complaint the same had been forwarded to the Additional Director General of Police, Crimes for necessary enquiry and action. Sri A Viswanath Kurup, Deputy Superintendent of Police, C.B. C.I.D., Narcotic and E.O. Cell, Kozhikode had been authorised to enquire into the matter and on the basis of materials collected a report had been forwarded to the first respondent on 21st June 2000. The result of the enquiry, according to the respondents, are that the additional respondents were "not in possession of any huge amount as alleged by the petitioners. No sign of any sum of money could be found out". However, according to him, the enquiry revealed that such persons had returned to India using forged passports excepting one who had come on leave using his genuine passport but did not return. According to the report, the said persons were working in different sections of the company. In respect of the goods supplied for want of payment of outstanding they found it difficult to make collections or remit the same in the company. It was apprehending trouble, they had come back to India. The report also incorporated a suggestion that a successful investigation could be carried out only by the Royal Oman Police and the Kerala Police can assist them to the extent that the persons concerned could be made available for any investigation and interrogation and they were ready to assist to that extent. It was also submitted that if cases are registered against the counter petitioners it may amount to jeopardy. 5. The petitioners point out that the investigations were only half hearted. According to the petitioners, there cannot be any difficulties as had been apprehended, for proceeding with the complaint (Ext. P-3) and to take follow up action. They contend that the police ought not have satisfied with the version of the additional respondents that their hands were clean and it could not have been presumed that since wealth could not be traced, such persons were innocent ab initio. P-3) and to take follow up action. They contend that the police ought not have satisfied with the version of the additional respondents that their hands were clean and it could not have been presumed that since wealth could not be traced, such persons were innocent ab initio. They pointed out to the presence of sufficient provisions in the Indian Penal Code and the Code of Civil Procedure, which had visualised crimes of this nature and the endeavour and attempt should have been to see that the proceedings were not converted to a mockery. The learned Counsel had also referred to decisions reported in Remla v. Superintendent of Police 1993 (1) KLT 412 ; Muhammed v. State of Kerala 1994 KLT 464 ; Samaruddin v. Assistant Director 1999 (2) KLT 794 (F.B.) and pointed out that under S.188 of the Code of Criminal Procedure Kerala police has jurisdiction to investigate an offence even if committed outside India by an Indian citizen. It was attempted to be established that fop conducting such investigation no previous sanction of the Central Government is required. Of course, the State Government also did not adopt a stand that here sanction of Central Government was required, but according to them, the enquiry had revealed nothing incriminating in respect of the additional respondents, and the police has no role to play. 6. In view of the stand so taken, notwithstanding the objections made 'by the additional respondents, that the investigation is not permissible, I do not think, the petitioners' complaint has to go unnoticed driving them for pursuing some other remedy. The Indian Penal Code provides, by S.4, that the provisions of the Code also apply to any offence committed by any citizen of India in any place without and beyond India. Likewise, S.4 of the Code of Criminal Procedure shows that in the matter of trial of offences under the Indian Penal Code, complaints shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigation or trial. The contention raised on the basis of S.165B has no relevance here. S.188 of the Code of Criminal Procedure only prescribes that the offence shall be enquired into or tried in India only with the previous sanction of the Central Government. The contention raised on the basis of S.165B has no relevance here. S.188 of the Code of Criminal Procedure only prescribes that the offence shall be enquired into or tried in India only with the previous sanction of the Central Government. I find that the authorities cited support the proposition that an investigation is permissible, and previous sanction might be necessary only for proceedings such as enquiry and trial, which are distinct and different procedures. 7. Certain other objections also were raised by the additional :respondents stating that it was a case of harassment and in fact they were not guilty of any lapses and only in the face of harassment they had come back all on a sudden. There was no evidence or reason for assuming that any premeditated criminal conspiracy was there on their part. Even the allegations in Ext. P-3 indicated that they had left Sultanate of Oman on different dates. It is also submitted that when there is already a complaint lodged at Oman and since there was no extradition treaty, the only course perhaps that could be adopted was to obtain sanction from the Government of India for the Royal Oman Police to proceed appropriately in the matter. Further, it is submitted that the petitioners have no right to invoke jurisdiction of this court under Art.226 of the Constitution of India. This latter argument could straight away be disposed of since, under Art.14 of the Constitution, State is not to deny to any person equal protection of the laws within the territory of India, and a writ could be issued for enforcement of fundamental rights or for any other purpose. 8. I do not think that such contentions have any relevance, as in the matter of an investigation Ext. P-3 has been taken cognisance of. But it ought to have been ensured that on the complaint, since it reveals prima facie cases, a crime appropriately was registered. The Police had moved in the matter and there is only deficiency in taking full steps. The grievances of a foreign, national, who believes he has been subjected to high-handed action should get a better attention, when he is prepared to afford cooperation. Though the con plaint is not addressed to a station house officer, now that it had been despatched to the lower authorities, nothing has to stand in the way of a full investigation. The grievances of a foreign, national, who believes he has been subjected to high-handed action should get a better attention, when he is prepared to afford cooperation. Though the con plaint is not addressed to a station house officer, now that it had been despatched to the lower authorities, nothing has to stand in the way of a full investigation. Technicalities should not stand in the way of registering a crime appropriately on the strength of Ext. P-3 and full investigation is to be directed about the matter. Prima facie use of fake passports also require better investigation. By Ext. P-3 and also in the O.P. a specific stand had been taken that the petitioners will be in a position to extend the maximum help in the matter that may be necessary to prove that there were deliberate overt acts on the part of the additional respondents and that this was with criminal intention. No steps are stated to be taken at Oman about the formal complaint lodged. When it is possible to contact the petitioners through their representatives in Kerala, a one sided enquiry and recording of statements could not have served ends of justice. One cannot believe that the Police is so gullible as to swallow a version donning the robe of innocence or those persecuted unreasonably. A company situated outside India would not normally have taken the trouble to make a complaint in respect of a few individuals only to harass them as now suggested by the additional respondents. Inaction would in fact tell upon the trustworthiness and fairness of citizen of India. 9. Of course there is no formal information lodged orally or in writing to an officer in charge of a police station. S.154 (3) refers to these circumstances when a gist of information is to be given to the Superintendent of Police. Being preliminary steps, strict adherence to the letter have not been resetted to here. It was a right step, taking note of the origin of the complaint. But Ext. P-3 has to be taken as an information envisaged under S.154 of the Code of Criminal Procedure, and it should have been taken in as part of the records. Being preliminary steps, strict adherence to the letter have not been resetted to here. It was a right step, taking note of the origin of the complaint. But Ext. P-3 has to be taken as an information envisaged under S.154 of the Code of Criminal Procedure, and it should have been taken in as part of the records. I may refer to the decision of a Division Bench of this Court; Katteri Moideen Kutty Haji v. State of Kerala 2002 (1) KLT 835 , in this context, wherein, it was observed as follows: "A reading of the complaint dated 4th August 2001 leaves no manner of doubt that what is alleged therein discloses information with regard to commission of a cognizable offence. The 4th respondent, therefore, was under a statutory duty under S.154 (1) of the Code of Criminal Procedure to register a case and then proceed with the investigation. What is more interesting is that copies of the complaints were endorsed to the District Superintendent of Police (3rd respondent) and Director General of Police (2nd respondent), neither of whom seems to have done anything in the matter. We are of the view that the 4th respondent was obliged to register a crime and thereafter make enquiries and proceed in accordance with the provisions of tire Code of Criminal Procedure." 10. In the aforesaid circumstances, I direct the first respondents to take steps to register a crime appropriately on Ext. P-3 and arrange for holding a full and detailed investigation with notice to the petitioners, through their representative as stated ia this petition. Opportunity is to be given to the petitioners to place materials for carrying out an effective investigation and further proceedings in the matter are to be taken on the basis of the report that is received by the first respondent and in his discretion and in accordances with law. Since passage of time may injure the interest of the petitioners, I direct that such steps have to be completed within a period of three months from the date of receipt of a copy of this Judgment. The Original Petition is disposed of with the above direction. There shall be no order as to costs.