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2010 DIGILAW 721 (KER)

Benny Joseph v. State of Kerala

2010-09-20

M.SASIDHARAN NAMBIAR

body2010
JUDGMENT : M. Sasidharan Nambiar, J. Petition is filed under Articles 226 and 227 of Constitution of India for a writ of mandamus directing respondents 2 to 4 to obtain sanction under Section 27 of Emigration Act, to prosecute respondents 10 to 12, the accused in C.C.522/2006 on the file of Judicial First Class Magistrate's Court, Ettumanoor and also directing second respondent to consider and take appropriate action on Ext.P6 representation submitted by the petitioner and also to direct the Judicial First Class Magistrate, Ettumanoor to keep all further proceedings in abeyance till sanction from the Central Government is produced. Along with the writ petition, petitioner produced Ext.P4, the details of information sought for by the petitioner under Section 6 of Right To Information Act and Ext.P5 reply given to Ext.P4 by Protector of Emigrants, Public Information Officer, disclosing that sanction is necessary under Section 27 of the Emigration Act and it is to be obtained from the Protector General of Emigrants, Ministry of Overseas Indian Affairs, New Delhi and the sanction is to be obtained by the Investigating Officer and no such sanction was applied for or granted to prosecute the accused in C.C.522/2006. 2. In view of the contentions raised, Judicial First Class Magistrate, Ettumanoor was directed to furnish a report on whether sanction under Section 27 of Emigration Act was obtained for prosecuting the accused. Judicial First Class Magistrate submitted a report that though sanction under Section 27 of the Emigration Act is necessary, when cognizance was taken on 4/12/2006, availability of previous sanction was not verified and records show that no sanction order was produced. 3. Learned counsel appearing for the petitioner and learned Government Pleader were heard. 4. On the admitted facts, it is not necessary to issue notice to respondents 10 to 12, the accused facing trial in C.C.522/2006 or the other respondents. 5. Learned Government Pleader on instructions submitted that though under Section 27 of Emigration Act, previous sanction of Central Government is necessary to prosecute the accused, no such sanction was obtained for prosecuting the accused in C.C.522/2006. 6. Chief Judicial Magistrate has taken cognizance for the offence under Section 420 read with Section 34 of Indian Penal Code and Section 24(1)(a)(b) (c) and (g) read with Section 24 of Emigration Act and transferred it for trial to Judicial First Class Magistrate, Ettumanor. 6. Chief Judicial Magistrate has taken cognizance for the offence under Section 420 read with Section 34 of Indian Penal Code and Section 24(1)(a)(b) (c) and (g) read with Section 24 of Emigration Act and transferred it for trial to Judicial First Class Magistrate, Ettumanor. Exts.P4 and P5 establish that previous sanction of the Central Government was not obtained for prosecuting the accused for the offences under the Emigration Act. Section 27 of Emigration Act provides that previous sanction of the Central Government or such officer or authority authorised by the Government is necessary to prosecute any person in respect of any offence under the Act. Section 27 of Emigration Act reads; "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: Provided that no sanction shall be required when an offence has been committed in respect of an emigrant or an intending emigrant and the complaint is filed by such emigrant or intending emigrant, or on behalf of such emigrant or intending emigrant, by the father, mother, husband, wife, son, daughter, brother, sister or guardian of such emigrant or intending emigrant or if such emigrant or intending emigrant is a member of a joint Hindu family, by the manager of that family." Though proviso provide that no sanction will be required in certain cases, it is only if an offence has been committed in respect of emigrant or intending emigrant and the complaint is filed by such an emigrant or intending emigrant or on behalf of such emigrant or intending emigrant, by the relative mentioned therein. It has no application in a case where complaint was not filed by the emigrant or intending emigrant or their relative as mentioned therein. When it is admitted that no previous sanction of the Central Government was obtained for prosecuting the accused, even if the accused are to be tried, there cannot be a conviction. More over, Section 27 is a condition precedent for initiating prosecution as without previous sanction from the Central Government or the authorised officer, an accused cannot be prosecuted for an offence under the Emigration Act. 7. More over, Section 27 is a condition precedent for initiating prosecution as without previous sanction from the Central Government or the authorised officer, an accused cannot be prosecuted for an offence under the Emigration Act. 7. Ext.P6 representation was sent by the petitioner to the Secretary, Department of Home Affairs and Director General of Police, pointing out that prior sanction was not obtained from the Central Government and therefore, prior sanction must be obtained from the Central Government to prosecute the accused and also contending that further investigation is necessary. Though accused cannot be tried for the offence under the Emigration Act, as cognizance was taken for the offence under the Indian Penal Code also, it cannot be said that cognizance taken as such is illegal or is vitiated. At the same time, learned Magistrate could not have taken cognizance of the offence under the Emigration Act in view of Section 27 f Emigration Act. 8. Petition is allowed in part. Judicial First Class Magistrate, Ettumanoor is directed to keep the trial of C.C.522/2006 in abeyance till previous sanction is obtained under Section 27 of the Emigration Act or till Ext.P6 representation is considered and appropriate order passed. Respondents 1 and 2 are directed to pass appropriate order in Ext.P6 representation within two months from the date of receipt of a copy of this judgment.