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2011 DIGILAW 2553 (PAT)

Anish Bir v. State of Bihar

2011-12-23

SHEEMA ALI KHAN

body2011
ORDER The petitioner has challenged the order passed by the Sub-divisional Judicial Magistrate, Patna dated 24.3.2006 by which cognizance has been taken under Sections 379, 422, 420, 419, 414, 424 and 120B of the Indian Penal Code. Subsequently to that the Court has also ordered for summons to be issued to the accused-petitioner Anis Bir. An F.I.R. was instituted on the basis of a power of attorney issued by Mr. Barry Honcock who is the representative of M/s Lombard North Central PLC, U.K. against Anis Bir the petitioner, Vinod Chopra and Mr. Ravi Talwar. 2. The facts disclose that Anis Bir purchased a Bently Turbo Car which was financed by M/s Lombard North Central PLC, U.K. in United Kingdom under higher purchase agreement. The petitioner took a loan of £ 50,000/- which was to be paid in 36 equal installments of £ 1277.77/-. A sum of £ 10,000/- was paid by way of advance at the stage of taking loan. However, the outstanding amount is yet to be paid by Anis Bir. Anis Bir shifted from Uniked Kingdom to India. It is alleged that there is a violation of the Sales and Goods Act and Baggage Rules of India. Ultimately it is alleged “that the car was sold to accused no. 3 with the conspiracy of accused no. 2 by the accused no. 1 (Anis Bir) at Patna and the car which was at Delhi was delivered to accused no. 3 by doing the negotiation at Patna and getting the car sold at a very cheap price”. It is also alleged that Ravi Talwar is also a conspirator in the whole deal. 3. Investigation was conducted at the behest of M/s Lombard North Central PLC, U.K. by M/s B.R. International Limited who found that the car was parked at Sindhiya House, Connaught Place, New Delhi. An F.I.R. was instituted in United Kingdom with the Midlands Police, Birmingham, U.K. as well, on 13.3.1998. 4. The questions raised on behalf of the petitioner is that (a) the Court at Patna does not have the jurisdiction to hear this matter and (b) that notice could not be issued without taking sanction for prosecution. It has been argued that the only Act which was committed at Patna is described in paragraph 5 of the complaint petition, which has been quoted above. 5. It has been argued that the only Act which was committed at Patna is described in paragraph 5 of the complaint petition, which has been quoted above. 5. Learned counsel for the petitioner submits that Anis Bir lives at Allahabad whereas Ravi Talwar to whom the car was sold, resides at Delhi as per the address in the complaint petition. Thus, there was no occasion for the negotiation to take place at Patna. It is also argued that even if, it is presumed that the negotiation took place at Patna, the planning to commit an offence would in itself not constitute any offence and as such, the Patna Civil Court would not have jurisdiction to hear the matter as no offence was committed at Patna. Counsel for the petitioner also contends that the conspiracy to sell the said Bentley Turbo Car at Patna is not witnessed by anyone much less the complainant or the person who has been examined as a witness on his behalf. 6. Considering the submissions and the questions raised on behalf of the petitioner, this Court is now examining the law on the issue. 7. Chapter XIII of the Code of Criminal Procedure deals with the jurisdiction of the Criminal Courts in inquiries and trials. Section 177 of the Code of Criminal Procedure envisages that the “offence shall ordinarily be inquire into and tried by a Court within whose local jurisdiction it was committed.” Section 178 of the Code of Criminal Procedure deals with cases where there is an uncertainty with respect to which of the several persons places the offence committed as they may be committed partly in one area and partly in other. Section 179 of the Code of Criminal Procedure provides that the case may be tried where the offence is committed or where the consequences ensue. Section 180 of the Code of Criminal Procedure deals with the place of trial when an act is an offence by virtue of its relation to any other act, which may be tried by any Court within whose local jurisdiction either act was done. The four aforesaid sections mostly deal with the jurisdiction of Court to enquire and try cases in circumstances where the offence was committed within the territory. The four aforesaid sections mostly deal with the jurisdiction of Court to enquire and try cases in circumstances where the offence was committed within the territory. Section 181 of the Code of Criminal Procedure however, is a departure which envisages that the offence may be tried by the Court where the offence was committed or also by a Court where the accused person is found. The Court takes into account also such offence which may be committed through letters and provides that the offence may be tried where the message or letter were sent or received. Similarly Section 183 of the Code of Criminal Procedure deals with an offence committed during a journey and provides that it may be tried under the local jurisdiction of the place where the offence was committed, while the offender was on the voyage or a journey. Sections 185, 186 and 187 of the Code of Criminal Procedure deal with the power of the Court to order, inquiry or trial. Section 188 of the Code of Criminal Procedure is important for the purposes of this case. Section 188 of the Code of Criminal Procedure reads as follows:- 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. 8. The main questions that has been raised as to what would be the interpretation of the term “at any place, within India at which he may be found”. A person absconding after committing an offence outside India may be found at any place in India. It is difficult to determine or to trace out such a person and thus a case may be filed in any part of India so that the Court may issue notice and be able to trace the offender. Thus, the phrase at any place where he may be found would basically mean found by the Court. It is difficult to determine or to trace out such a person and thus a case may be filed in any part of India so that the Court may issue notice and be able to trace the offender. Thus, the phrase at any place where he may be found would basically mean found by the Court. It, therefore, cannot be argued that a particular Court in India would not have the jurisdiction to try the case. 9. The submission on behalf of the counsel for the petitioner that paragraph 5 of the complaint case alleging that the conspiracy was committed at Patna is not supported by evidence would loose its meaning in view of the interpretation of Section 188 of the Code of Criminal Procedure. 10. I may refer to a decision on this issue by the Supreme Court in Om Hemrajani Vs. State of U.P & Anr. [ (2005) 1 SCC 617 ]. The question that arose in this case is that the interpretation of expression “at which he may be found” in Section 188 of the Code of Criminal Procedure. The facts were that the respondent no. 2 a Dubai based bank had filed a complaint against the petitioner in the Court of the Special Judicial Magistrate(C.B.I.) Gaziabad. It had been alleged that the petitioner Om Hemrajani had obtained loans, executed various documents, in proof of his ability to discharge the Bank liability and gave his personal guarantee, but instead of discharging the liability the accused cheated and defrauded the Bank in obtaining loan facilities and fled from U.A.E. 11. The Apex Court while dealing with the issued had relied on judgments delivered in the case of R. Vs. Benito Lopez, (1858) 7 Cox CC 431 : (1843-60) All ER Rep 1029 : 169 ER 1105, Empress Vs. Maganlal, ILR (1882) 6 Bom 622; Emperor Vs. Vinayak Damodar Savarkar, ILR (1911) 35 Bom 225 : 12 Cri LJ 356; Sahebrao Bajirao Vs. Suryabhan Ziblaji, AIR 1948 Nag 251 : 49 Cri LJ 376. It has been held in all the cases the word “found” is used in its most extensive sense and was intended to enquire all cases by giving jurisdiction to try at any place where the prisoner might happened to be at the time of trial. Suryabhan Ziblaji, AIR 1948 Nag 251 : 49 Cri LJ 376. It has been held in all the cases the word “found” is used in its most extensive sense and was intended to enquire all cases by giving jurisdiction to try at any place where the prisoner might happened to be at the time of trial. The object of the provision was to get rid of all questions about “local jurisdiction.” For the purposes of jurisdiction it would be the Court where he is actually produced or appears which can be said to have found him. Thus, it has been held that the accused is to be found by the Court enquiring or trying and not by the police. The conclusion is that in a case filed in India with respect to an offence committed outside the jurisdiction of India it would be enough to allege that the accused may be found in India as such, the issue of the Patna Courts do not have the jurisdiction to try this case is answered in the negative. 12. The next question raised on behalf of the petitioner is that this criminal case ought to be rejected by this Court by virtue of the fact that it would be hit by Section 210 of the Code of Criminal Procedure has been advanced only to be rejected by this Court. Counsel for the petitioner submits that since it is accepted in the complaint case that the complainant has filed a criminal case in England as well, should be sufficient for the purposes of rejecting the present complaint. Section 210 of the Code of Criminal Procedure applies to cases within India and is not applicable to cases filed outside the jurisdiction of India. Therefore, this contention on behalf of the petitioner is rejected. 13. It has also been argued on behalf of the petitioner that no case is made out under these sections on the basis of which cognizance has been taken. It is submitted that Sections 378, 411 and 414 of the Indian Penal Code would not be applicable as the petitioner has not stolen the Bentley Turbo Car rather he has purchased it on a higher purchase agreement. 14. It is submitted that Sections 378, 411 and 414 of the Indian Penal Code would not be applicable as the petitioner has not stolen the Bentley Turbo Car rather he has purchased it on a higher purchase agreement. 14. It has also been argued that no offence would be made out under Section 420, 422 and 424 of the Indian Penal Code, inasmuch, the offence of cheating are not made out in the facts of the present case. For this purpose counsel for the petitioner refers to the decision of the Supreme Court in the case of Uma Shankar Gopalika Vs. State of Bihar & Anr. [ (2005) 10 SCC 336 ], to argue it has been held by the Apex Court that a breach of contract would not amount to cheating, if there was no intention to cheat at the very inception of the offence. In the aforesaid case the facts would disclose, that the complainant could obtain his relief by filing a civil suit and, therefore, the Court has held that no offence is made out under Section 420 of the Indian Penal Code. In the present case, this Court finds that the allegations have a widder annotation. The fact that the petitioner left U.K. without discharging his liabilities and thereafter absconded would indicate that prima facie a case is made out under Section 420 of the Indian Penal Code. In any event the petitioner would have the liberty to raise these issues at the time of framing of charges. 15. Finally, it has been argued that the Court could not have issued summons to the petitioner without the sanction of the Central Government. Mr. Ajay Thakur, counsel appearing for the petitioner submits that the “term that no such offence shall be enquired into or tried in India except with the previous sanction of the Central Government” must be interpreted to mean that once the Court had taken cognizance of the offence, it could not have sent the complaint for enquiry without the sanction of the Central Government much less could the Court try the offence without the aforesaid sanction. The interpretation sought to be made by the counsel for the petitioner with respect to the term enquiry cannot be treated to have such a restricted meaning. Section 200, under Chapter 15 deals with complaint filed before the Magistrate. The interpretation sought to be made by the counsel for the petitioner with respect to the term enquiry cannot be treated to have such a restricted meaning. Section 200, under Chapter 15 deals with complaint filed before the Magistrate. Section 200 of the Code of Criminal Procedure envisages that the Magistrate taking cognizance of an offence shall examine the complainant. It further provides that if the case is made over for enquiry to another Magistrate after taking cognizance of an offence, it is not required to re-examine the complainant. The petitioner’s contention that the Court does not have the power to inquire into the case without sanction of the Central Government is not tenable in view of the fact that it is well settled that the Court takes cognizance of the offence, not the offender, but for the purpose of Section 188 of the Code of Criminal Procedure, the person committing the offence has to be dealt by the Court at any place where he found. The Courts can only deal with such an offender after notice is issued and the accused appears before the Court, as such it is not necessary to obtain sanction of the Central Government at the stage of inquiry. The contention of the petitioner is thus, rejected. For the reasons aforesaid, I may refer to the judgment of the Supreme Court in the case of Thota Venkateswarlu Vs. State of Andhara Pradesh through Principal Secretary & Anr. [ (2011) 9 SCC 527 ]. In this case the Apex Court has held the fetter on the power of the Court, under the proviso of Section 188 of the Code of Criminal Procedure can only be imposed, when the stage of trial is reached. 16. In the result, for the reasons discussed aforesaid, this application is dismissed.