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2005 DIGILAW 3 (KER)

Rahman Qamarudheen v. State of Kerala

2005-01-04

K.HEMA

body2005
Judgment :- K. Hema, J. 1. The Revision Petitioner is an Indian citizen. He is alleged to have committed an offence in a foreign country. A complaint was lodged against him before one of the police stations in Kerala, alleging offence under S.409 of Indian Penal Code ('IPC' for short). A crime was registered at such police station, based on such complaint. According to petitioner, the crime can be registered only at the police station within the limits of which, accused is residing, in view of S.188 of Code of Criminal Procedure (`the Code', for short). Hence, petitioner seeks to quash entire proceedings initiated against him before the Magistrate's Court, as it is illegal. 2. In the light of the contentions raised in this petition, the following questions arise for consideration: (1) Is there any bar under S.188 of the Code for registering a crime in any of the police stations in Kerala, for an offence which is allegedly committed by an Indian citizen outside India? (2) Can the Court or police proceed against such offender, based on the FIR, so registered? 3. The relevant facts necessary for disposal of this petition are as follows: A complaint was filed before Thrissur police station by a person who is styled as Chairman of a company at Kuwait. As per the allegations in the complaint, while revision petitioner was working as 'Teller' in that company from December 2000 onwards, he was entrusted with money in connection with day-to-day affairs. But, he allegedly misappropriated huge amount of money and committed offence tinder S.409 IPC. He thereafter, left Kuwait under some false pretext, after causing huge loss of money to the company. Based on the complaint a crime was registered at Thrissur West Police Station, under S.409 IPC. 4. According to petitioner, the complaint contains false allegations and registration of the crime is vitiated by mala fides. It is also contended that second respondent-police does not have jurisdiction to register crime and investigate into the crime, in view of S.188 of the Code. According to petitioner, he is a permanent resident of Kozhikode and hence any crime against him for an offence committed by him outside India can be registered only at Kozhikode, the said place being the place where he "may be found" in view of S. 188 of the Code. According to petitioner, he is a permanent resident of Kozhikode and hence any crime against him for an offence committed by him outside India can be registered only at Kozhikode, the said place being the place where he "may be found" in view of S. 188 of the Code. The registration of a crime against him at Thrissur is illegal and the entire proceedings initiated against him on the basis of such FIR are vitiated and those are liable to be quashed. 5. According to petitioner, his address was deliberately shown to be at Thrissur, with a view to harass him, with the active assistance of the Thrissur Police. Specific allegations are made against Circle Inspector of Police, that he has close acquaintance with M/s. Aboobacker and Shiraz Hussain, at whose instance the complaint was filed at Thrissur. It is also alleged that the complaint itself was drafted and sent to the complainant by the Circle Inspector and a copy of the e-mail allegedly sent by the Circle Inspector to Sri. Shiraz Hussain is produced in this case. It is also contended that the allegations in the complaint tally with the details in the said e-mail. 6. It was also brought to my notice that there is inordinate delay in filing complaint. The complaint is filed only on 23/06/2002, though the offence allegedly came to the knowledge of the complainant as early as in February, 2002. The misappropriation was allegedly detected on the 14th day of the petitioner leaving Kuwait and the incident admittedly occurred on 22/02/2002. But, the complaint is filed only after about three months of the incident. No explanation is given in the complaint for the inordinate delay in preferring the complaint, it is contended. 7. Learned counsel appearing for petitioner also submitted that petitioner has no connection with Thrissur, but he is a native of Kozhikode. Petitioner produced various documents also to prove that his permanent place of residence is Kozhikode. True copies of the relevant pages of the ration card, medical certificate and discharge summary issued from Kozhikode to his daughter and his father etc. were produced which would all, prima facie, make it appear that petitioner is a resident of Kozhikode. Petitioner produced various documents also to prove that his permanent place of residence is Kozhikode. True copies of the relevant pages of the ration card, medical certificate and discharge summary issued from Kozhikode to his daughter and his father etc. were produced which would all, prima facie, make it appear that petitioner is a resident of Kozhikode. Based on all the above facts, it was strongly contended that registration of crime at Thrissur is motivated and it is also illegal, being in violation of S.188 of the Code and hence FIR is liable to be quashed. 8. However, respondent-complainant would deny all the above allegations and it was vehemently argued by learned counsel for the complainant-respondent that a crime against petitioner in respect of an offence committed by him outside India can be registered at any place in India where the accused may be found, by virtue of the provision contained in S.188 of the Code. Thrissur being a place where accused may be found, registration of crime at Thrissur is only legal. It is also pointed out that as per the averments in the complaint. last known address of petitioner is at Thrissur and his telephone number also bears the STD Code of Thrissur. Therefore, it is only reasonable to infer that petitioner may be found at Thrissur and hence registration of crime at Thrissur cannot be said to be illegal. 9. In the light of the rival contentions raised in this revision, it is essential to look into the scope of S.188 of the Code, which reads as follows: "S.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." 10. A reading of S.188 of the Code reveals that when an offence is committed outside India by a citizen of India, (whether he is on the high seas or elsewhere), he can 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". As per the proviso, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government. notwithstanding anything in any of the preceding Sections of this Chapter. It is clear from S.188 of the Code that the said provision fictionally fixes the place of occurrence, in cases where an offence is committed by an Indian citizen outside India. Even if an offence is actually committed outside India, by virtue of S.188 of the Code, it can be deemed to have committed at any place in India where "accused may be found" and the accused can be dealt with, as if the offence is committed at any such place. 10-A. So, what is to be ascertained before proceeding against an Indian citizen for an offence allegedly committed by him abroad is, whether 'he may be found' at any place lying within the jurisdiction of the particular Court or limits of the police station, concerned. If, from the materials placed before the Court or the police station, it is revealed that accused `may be found' at any such place which lies within the jurisdiction of such Court or police station, such place can be deemed to be the place of offence. In such circumstances, when a complaint is received at a police station, disclosing a cognizable offence, and if it can he gathered from the complaint that accused 'may be found' at any place lying within the limits of such Police station there will be no bar under S.188 of the Code, to register a crime at such police station treating such place as the deemed place of occurrence. The police may proceed at the initial stage, as if such place is the place of occurrence, going by the address and other details shown in the complaint. 11. The police may proceed at the initial stage, as if such place is the place of occurrence, going by the address and other details shown in the complaint. 11. It is needless to say that even in other cases, when a complaint is lodged at any police station disclosing a cognizable offence, police shall register the crime, without any delay whether the offence has taken place within the limits of such police station or otherwise. In such cases, if it is found subsequently, in the course of investigation, that the offence is committed outside the limits of that police station, the case has to be transferred to the other police station. Therefore, the mere registration of a crime in respect of an offence committed by an Indian Citizen outside India at any police station in India cannot be said to be illegal if the complaint discloses that such offender may be found within the limits of such police station and it does not also violate S.188 of the Code. The offence, in such cases, may be deemed to be committed at the place so stated in the complaint, for registering the crime at such police station, by virtue of S.188 of the Code. 12. In such circumstances, it also follows that it is not at all necessary that the crime should be registered only at the place of permanent residence of the offender. There is nothing in S.188 of the Code to indicate that a crime can be registered only at permanent place of residence of the accused. What has to be looked into is whether the 'accused may be found' in any place lying within the jurisdiction of the Court or within the limits of police station. It is not necessary to find out whether the permanent place of residence of accused lies within the jurisdiction of the Court or the particular police station limits. 13. It has to be borne in mind that in cases in which an Indian citizen commits an fence outside India, it is likely that the accused would hide himself in some place to his convenience and be away from his place of residence, after commission of the offence. This may be, with a view to evade arrest or other legal proceedings. This may be, with a view to evade arrest or other legal proceedings. So, legislature has taken special care to lay down in S.188 of the Code that accused may be dealt with, as if the offence is committed at any place in India where "he may be found". Such place may be any place in India and not necessarily be the permanent place of residence of the offender. Therefore. the argument advanced by learned counsel for petitioner that crime can be registered only at a police station within the limits of which petitioner permanently resides can only be rejected. 14. But, in this context, another important question arises. Can the police, after registration of the crime, arrest the accused and proceed against him? Though there is nothing in S.188 of the Code to show that a crime cannot be registered at any police station for an offence allegedly committed outside India, it is clear from the said provision that the accused can be "dealt with for such offence" only at a place where 'he may be found'. The peculiar expression. "he may be dealt with" appearing in S.1 88 of the Code strikes my attention. In my view, by registering a crime, police is only 'dealing with' the complaint and not the offender. `Dealing with' the accused is different from "dealing with the complaint'". The complaint can be dealt with by registering the crime whereas the accused can be 'dealt with' by effecting an arrest, questioning him, effecting a recovery at his instance under S.27 of Evidence Act. carrying out a search of his body etc. But an offender referred to in S.188 can be dealt with only at the deemed place of occurrence where he may he found. 15. It is worthy to hear in mind that there may be cases where a person may file a complaint at some police station of his own choice, with the sole view to harass the accused. This may not be quite uncommon. An accused who resides in Delhi, Punjab or Bombay can be harassed by filing a complaint at a remote police station in Kerala, by merely alleging that `he may be found' here. So also, a person who is residing at Kerala can he harassed by filing a complaint at a police station at the northern end of this country. An accused who resides in Delhi, Punjab or Bombay can be harassed by filing a complaint at a remote police station in Kerala, by merely alleging that `he may be found' here. So also, a person who is residing at Kerala can he harassed by filing a complaint at a police station at the northern end of this country. Legislature has not intended that this provision he misused or he abused. At the same time, it is not intended that an actual offender escapes the clutches of law, by deliberately keeping himself away and hide at any convenient place of his choice. 16. Therefore, it has to be made clear that even though there is no bar in registering a crime at any police station in India, before the police proceeds against the accused and "deals with" him, it has to be confirmed that the accused "may be found" in any place lying within the limits of such police station. An accused who is an India citizen may be `"dealt with" by the police or the Court for the alleged offence committed by him outside India, only after confirming by such enquiry as may be necessary that the deemed place of offence falls within the limits of any particular Police Station, where he may be found. By virtue of S.188 of the Code, police or the Court gets jurisdiction to "deal with" an Indian citizen in respect of an offence committed by him outside India, only if the place where such offender "may be found" lies within the local limits of such police station or Court. Therefore, before dealing with the offender in any manner, the police or the Court has to confirm that the deemed place of offence lies within its jurisdiction. 17. Though a crime can be registered at any police station in India and thereafter, if it is found that the accused "may be found" elsewhere, the case has to be transferred to such police station or Court within the limits of which he may be found. The accused can be 'dealt with' only at such police station or Court, in accordance with law. This would not mean that the case has to be transferred from police station to police station or Court to Court, depending upon the places where accused may hide himself. The place where he may be found is not such places of hiding. The accused can be 'dealt with' only at such police station or Court, in accordance with law. This would not mean that the case has to be transferred from police station to police station or Court to Court, depending upon the places where accused may hide himself. The place where he may be found is not such places of hiding. It is such place or places where he is likely to he found or may he found though he may later, shift from that place to another. 18. In such circumstances, I hold that on the facts of this case, though there is no legal bar in registering the crime at Thrissur West Police Station, since complaint discloses that deemed place of offence is within the limits of such police station, as per S.188 of the Code, the petitioner may be "dealt with for such offence" allegedly committed by him outside India, only at the place where accused "may be found". This fact has to be ascertained and confirmed by the police concerned, by such enquiry as it may deem fit and then alone, police will have jurisdiction to deal with the offender, as per law. The Court may also confirm before dealing with the petitioner that he `may be found' at any place lying within the jurisdiction of that Court. 19. The offence alleged in this case is under S.409 IPC. According to petitioner, the said offence will not be attracted in this case, since neither the complainant's Company nor the petitioner is a banker. The petitioner is not an agent or a public servant, merchant or an attorney. But, on a reading of the complaint it cannot be said that no offence at all is made out to proceed against petitioner. At this stage, this Court can only look into the allegations made in the complaint and the documents produced along with it to see whether there are sufficient ground to proceed against the accused. It is well-settled that even if the allegations fall short of one or two ingredients, a complaint cannot be quashed under S.482 of the Code. 20. At this stage, this Court can only look into the allegations made in the complaint and the documents produced along with it to see whether there are sufficient ground to proceed against the accused. It is well-settled that even if the allegations fall short of one or two ingredients, a complaint cannot be quashed under S.482 of the Code. 20. It is laid down by the Supreme Court in M. Krishnan v. Vijay Singh (2001) 8 SCC 645 =2001 (3) KLT SN 89 (C.No.117) SC that "where factual foundations for the offence have been laid down in the complaint, the High Court should not hasten to quash criminal proceedings merely on the premise that one or two ingredients have not been stated with the details or that the facts narrated reveal the existence of commercial or money transaction between the parties". The mere non-explanation of the delay in the FIR cannot also by itself be made a ground to quash a complaint under S.482 Cr.P.C. Taking all these facts into consideration, I find that there is no ground to quash the complaint or the FIR on the alleged ground. 21. However, petitioner may be "dealt with" ' for the alleged "offence" as disclosed from the complaint only in accordance with law, only at such police station or the Court within the local limits of which the accused "may be found". Such place alone can be deemed to be the place where the offence is committed to proceed against the accused. In any case, petitioner may be dealt with by Thrissur Police or any other police, only after confirming by such enquiry as may be necessary that deemed place of offence falls within the local limits of such police station. If offender is dealt with by any police or Court without being satisfied that the deemed place of offence lies within the jurisdiction of the Court or the limits of police station, it is made clear that such dealing will be without jurisdiction and it will also be illegal. Law does not support any such dealings of the offender. With these observations, the Criminal M. C. is dismissed.