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2010 DIGILAW 30 (MP)

MANDIRA BEDI v. PAWAN

2010-01-08

N.K.MODY

body2010
Judgment N.K.Mody, J. ( 1. ) This is a petition under Section 482 of Cr.P.C. for quashment of complaint bearing No.261/2007 dated 30/04/2007 and also the orders dated 18/06/2007 and 05/12/2007 pending in the Court of JMFC, Bhikangaon whereby in a private complaint filed by respondent No. 1 cognizance of the offence has been taken under Section 2 of the Prevention of Insults to National Honour Act, 1971 (No.69 of 1971) which shall be referred-hereinafter as "Act" and bailable warrant was issued against the petitioner. ( 2. ) Short facts of the case are that the respondent No. 1 filed a private complaint on 12/04/2007 alleging that petitioner/Smt. Mandira Bedi was Producer and Director of programme Fourth Empire, SET MAX TV Channel, Mumbai. It was alleged that during telecast of Cricket Match of World Cup Cricket, 2007 being played on 28/04/2007 at West Indies petitioner was wearing a Saree which was having design of images of flags of various participating countries including the Indian National Flag. It was alleged that on that Saree there was a image of National Flag of India which was on the bottom and was touching to the legs of the petitioner. It was alleged that the petitioner has dishonoured the National Flag publically and thus has committed an offence which is punishable under the Act. After recording of statement of respondent No. 1 under Section 200 and 202 of Cr.P.C. learned JMFC, Bhikangaon vide order dated 18/06/2007 took the cognizance of the offence and issued bailable warrant against the petitioner against which the present petition has been filed. ( 3. ) Mr. Ramesh Saboo, learned counsel for the petitioner argued at length and submits that as per the complaint the cause of action has accrued to the respondent No. 1 during the telecast of Cricket Match of World Cup Cricket, 2007 being played on 28/04/2007 at Barbadose, West Indies while the petitioner was performing the role of commentator of programme Fourth Empire on SET MAX TV Channel. It is submitted that the offence as alleged was committed by the petitioner outside India i.e. at West Indies, therefore, the petitioner- could not have been prosecuted without obtaining the sanction from the Central Government. It is submitted that the offence as alleged was committed by the petitioner outside India i.e. at West Indies, therefore, the petitioner- could not have been prosecuted without obtaining the sanction from the Central Government. It is submitted that by taking cognizance of the offence for which the learned JMFC, Bhikangaon was having no jurisdiction unless and until sanction is obtained from the Central Government, the whole action is illegal and deserves to be quashed. Learned counsel further submits that the petitioner is resident of Mumbai while the complaint has been filed at Bhikangaon. It is submitted that as per amended provision of sub-section (1) of Section 202 of Cr.PC, 1973 in case where the accused is residing at a place beyond the jurisdiction of the Magistrate before whom complaint is filed, then such Magistrate shall postpone the issue of process against the accused and either inquire into the case himself or direct investigation by police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding with the alleged offence and to take cognizance. It is submitted that by not following the procedure learned JMFC, Bhikangaon committed error in taking the cognizance of the offence. It is submitted that the petition filed by the. petitioner be allowed and the impugned order and also the complaint filed by the respondent No. 1 be quashed. ( 4. ) Mr. Ashish Choubey, learned counsel for the respondent No. 1 submits that at the relevant time the petitioner was wearing the saree having design of images of flags of various participating countries including the National Flag of India in such a manner which was appearing close to legs of the petitioner. It is submitted that for the purpose of cheap publicity the petitioner has wore the saree having the image of Indian National Flag and knowingly insulted the National Flag of India. It is submitted that after going through the complaint and after recording the evidence adduced by the respondent No. 1 learned JMFC, Bhikangaon has rightly taken cognizance of the offence against the petitioner, ft is submitted that the petition filed by the petitioner be dismissed. ( 5. It is submitted that after going through the complaint and after recording the evidence adduced by the respondent No. 1 learned JMFC, Bhikangaon has rightly taken cognizance of the offence against the petitioner, ft is submitted that the petition filed by the petitioner be dismissed. ( 5. ) Learned counsel for the respondent No.2/State supports the contention raised by counsel for the respondent No. 1 and submits that cognizance of the offence has rightly been taken by learned JMFC, Bhikangaon which requires no interference. ( 6. ) Section 188 of Cr.P.C, 1973 deals with the offence committed outside India which reads as under :- 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. ( 7. ) In the matter of Ajay Aggarwal Vs. Union of India (1993) 3 SCC 609 the Honble Apex Court had a occasion lo consider the impact of proviso of Section 188 of Cr.P.C. wherein the accused who was carrying on business in Dubai charged under Section 120-B, 420, 468 and 471 of IPC for conspiring with others residing in India to cheat a bank in India and in furtherance committing offences of cheating and forgery partly in India and partly in Dubai, Honbie Apex Court has observed that even if part of the acts in pursuance of the conspiracy done in India, cognizance of the offences can be taken in India without prior sanction of Central Government. It was further observed that previous sanction of Central Government is not a condition precedent to take cognizance of the offence and sanction can be obtained before commencement of trial. In the matter of In Reference Vs. Prakash Kumar Thakur I.L.R. (2008) MP. It was further observed that previous sanction of Central Government is not a condition precedent to take cognizance of the offence and sanction can be obtained before commencement of trial. In the matter of In Reference Vs. Prakash Kumar Thakur I.L.R. (2008) MP. 591 wherein Sania Mirza, a rising star on Tennis firmament was prosecuted 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 wherein cognizance was taken by CJM, Bhopal, this Court observed that no inquiry or trial of such offence could be initiated in India except with the previous sanction of Central Government as the alleged offence was committed at Australia and the offence in itself was completed out side India and no act of the accused amounting to offence was committed in India. ( 8. ) Sub-Section (1) of Section 202 of Cr.P.C. as it was existing prior to the amendment Act. 2005 reads as under :- 202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. ( 9. ) The words "and shall in a case wherethe accused is residing at a place beyond the area in which he is exercising his jurisdiction" has been inserted vide amendment Act No.25 of 2005. By the aforesaid amendment it is made obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused. This has been done to see that innocent persons are not harassed by unscrupulous persons. This has been done to see that innocent persons are not harassed by unscrupulous persons. Undisputedly, petitioner is resident of Mumbai while the complaint was filed at Bhikangaon, thus, the petitioner was residing beyond the jurisdiction of the concerned Magistrate, therefore, it was mandatory on the part of the learned JMFC, Bhikangaon to postpone the issue of process against the accused and either inquire into the case himself or direct investigation by police officer or by such other person as he thinks fit. In the present cast, from perusal of record, it appears that without inquiry and also without directing any investigation cognizance was taken by the learned JMFC, Bhikangaon and process was issued which is not in accordance with law. Apart from this, since the offence was committed outside India and no part of the offence has been committed within India, therefore, as per proviso of Section 188 of Cr.P.C. the cognizance of the offence could not have been taken by the learned JMFC, Bhikangaon without obtaining theprevious sanction from the Central Government. ( 10. ) In view of this, the petition filed by the petitioner is allowed and complaint, bearing No.261/2007 dated 30/04 2007 and also the orders dated 18/06/2007 and 05/12/2007 pending in the Court of JMFC, Bhikangaon whereby in a private complaint filed by the respondent No. 1 cognizance of the offence has been taken under Section 2 of the Act and bailable warrant was issued against the petitioner stands quashed with a liberty to respondent No.1 to file a fresh complaint after obtaining the sanction from Central Government as per the proviso of Section 188 of Cr.P.C. ( 11. ) With the aforesaid observations, petition stands disposed of. C.C. as per rules. Petition disposed of.