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2008 DIGILAW 376 (MP)

In reference v. Prakash Kumar Thakur

2008-03-05

RAKESH SAKSENA

body2008
Judgment ( 1. ) THIS revision has suo-motu arisen from the order dated 09. 01. 2008 passed by the Chief Judicial Magistrate, Bhopal in R. T. No. 305/2008, on the complaint of Prakash Kumar Thakur, under Section 2 of the Prevention of Insults to National Honour Act, 1971, against Sania Mirza, a rising star on tennis firmament, on the allegation that she by placing her feet on the table in the manner that thereby she insulted the National Flag fixed on the table, as displayed from her photographs published in the news papers. Taking cognizance on the said complaint, learned Chief Judicial Magistrate, Bhopal has issued notice of appearance to the accused. In the revision, jurisdiction of the learned Chief Judicial Magistrate, Bhopal to take cognizance of the said offence and issuance of notice to the accused, are under question. ( 2. ) LEARNED counsel for the respondent submits that the complaint has been filed under Section 200 of the Code of Criminal Procedure and no procedural lapse under Section 200 or Section 204 of the Code of Criminal procedure has taken place. He submits that in view of the provision of Section 188 of the Code of Criminal Procedure, when an offence is committed outside india by a citizen of India or by a person not being a citizen of India, he may be dealt with in respect of such an offence as if it had been committed in any place within India at which he may be found. Though a previous sanction of the central Government is required for the inquiry or trial of the above offence in india, but such sanction is not a condition precedent to take cognizance of the offence. Sanction can be obtained before commencement of the trial. He placed strong reliance on Ajay Aggarwal Vs. Union of India and others, (1993)-3-SCC609 in support of his contention. ( 3. ) FOR inquiry or trial of an offence, two things are essential. First, alleged facts should disclose commission of an offence prima-facie and second, the Court or Magistrate deciding about this question should be empowered by law to take cognizance of the matter. Union of India and others, (1993)-3-SCC609 in support of his contention. ( 3. ) FOR inquiry or trial of an offence, two things are essential. First, alleged facts should disclose commission of an offence prima-facie and second, the Court or Magistrate deciding about this question should be empowered by law to take cognizance of the matter. Magistrates assume jurisdiction in virtue of the empowering provision of Section 190 of the Code of Criminal Procedure, as in this case also, learned Chief Judicial Magistrate, has done, but this case is apart from the usual cases in as much as, in this case, admittedly, the offence is alleged to have been committed in a foreign country i. e. at Perth (Australia ). This made the provision of Section 188 of the Code of Criminal Procedure applicable to the present case which puts an embargo on the Courts and the magistrates to take cognizance of the offence committed abroad without previous sanction of the Central Government. ( 4. ) BEFORE dilating about the requirement of the sanction engrafted by the provision of Section 188 of the Code of Criminal Procedure, it is necessary to look into the said provision which is reproduced herein under :" Section 188 :-Offences 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. " ( 5. ) BARE perusal of the proviso to Section 188 of the Code of Criminal procedure makes it clear that the proviso begins with the words "notwithstanding anything in any of the preceding sections of this Chapter". This explicitly makes observance of the provision mandatory. But it would come into play only when it is established that an offence has been committed outside the country. ( 6. This explicitly makes observance of the provision mandatory. But it would come into play only when it is established that an offence has been committed outside the country. ( 6. ) LEARNED counsel for the respondent appears to have misconceived the ratio of the case of Ajay Aggarwal (supra), in which the appellant, a non resident Indian running a concern at Dubai and four others residing in India hatched a conspiracy to cheat the Punjab National Bank. In pursuance thereof, they acted and succeeded in cheating the Bank of an amount of Rs. 40,30,329/ -. It was found that the foreign letters of credit were fabricated on the basis of false and forged shipping documents submitted by the appellant to a Dubai Bank. When the charge sheet was laid against the appellant and others for the offences under Sections 120-B, 420, 468 and 471 of the Indian Penal Code, the Chief Judicial Magistrate, Chandigarh discharged all the accused for the said offences on the ground that conspiracy and acts done in furtherance thereof had taken place outside India, therefore, sanction under Section 188 of the Code of Criminal Procedure was mandatory, and no such sanction having been produced, the prosecution was not maintainable. Considering the facts of the case, the Supreme Court held that the conspiracy was initially hatched at Chandigarh which itself was a completed offence. It being a continuing offence, even accepting the appellant"s case that he was at dubai and part of conspiracy and overt acts in furtherance thereof had taken place at Dubai and partly at Chandigarh; and in consequence thereof other offences had ensued, since the offences have been committed during the continuing course of transaction culminated in cheating the Punjab National bank at Chandigarh, the need to obtain sanction for various offences under proviso to Section 188 was obviated. Therefore, there was no need to obtain sanction from the Central Government. It was further observed that the case would be different if the offences were committed outside India and were completed in themselves without conspiracy. It is apparent that in the context of section 120-B of the Indian Penal Code, the Supreme Court held that sanction under Section 188 of the Code of Criminal Procedure was not a condition precedent to take cognizance of the offence. If need be it could be obtained before trial begins. It is apparent that in the context of section 120-B of the Indian Penal Code, the Supreme Court held that sanction under Section 188 of the Code of Criminal Procedure was not a condition precedent to take cognizance of the offence. If need be it could be obtained before trial begins. The Apex Court approved In Re M. L. Verghes case, AIR 1947 Mad. 352, where the offence charged under Section 409 of the Indian penal Code had taken place outside British India and it was held that sanction under Section 188 was necessary. In Ajay Aggarwal (supra), the Apex Court observed that "the case may be different if the offences were committed outside 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". It was further observed that "proviso to S. 188, Cr. P. C. however provides the safeguard for the NRI to guard against any unwarranted harassment by directing "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. " Since the proviso begins with a non obstante clause, its observance is mandatory. But it would come into play only if the principal clause is applicable, namely, it is established that an offence as defined in clause n" of S. 2 of the Cr. P. C. has been committed and it has been committed outside the country. " ( 7. ) THUS, it is evident that where an offence is committed outside india and is complete in itself without any conspiracy or any part of it having been committed in India, it shall not be inquired into or tried in India except with the previous sanction of the Central Government. To hold otherwise would virtually amount to nullify the proviso of Section 188 of the Code of Criminal procedure entirely. ( 8. To hold otherwise would virtually amount to nullify the proviso of Section 188 of the Code of Criminal procedure entirely. ( 8. ) SINCE the accusation in the present case is that the alleged offence under Section 2 of the Prevention of Insults to National Honour Act, 1971 was committed at Perth (Australia) and the offence in itself was completed outside India and no act of the accused amounting to offence was committed in india, no inquiry or trial of such offence could be initiated in India except with the previous sanction of the Central Government. ( 9. ) IN the instant case, there is nothing on record, not even averment, to show that the requisite sanction of the Central Government to inquire into or try the aforesaid offence in India was obtained. Its absence inevitably rendered the learned Chief Judicial Magistrate, Bhopal without jurisdiction and the complaint filed before him incompetent and, consequently, the entire proceedings including the impugned order of taking cognizance deserve to be quashed and are quashed accordingly. ( 10. ) REVISION allowed.