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Rajasthan High Court · body

2014 DIGILAW 1818 (RAJ)

Mohd. Faruq Kureshi v. State of Rajasthan

2014-11-13

M.N.BHANDARI

body2014
ORDER By this Criminal Misc. Petition, a challenge is made to the FIR No. 145 of 2007, registered with Police Station Kotwali, Jhunjhunu for offence under Section 10/24 of the Emigration Act, 1983 (for short, 'the Act of 1983'). Learned counsel submits that after obtaining a certificate to work as recruiting agent, petitioner was doing his business. With an ulterior motive, the police registered a case against him, though the FIR does not disclose any offence. In absence of disclosure of the offence, impugned FIR deserves to be quashed. The FIR has been lodged even in ignorance of the circular issued by the Government of India dated 12.12.2005. Therein, registration of a case is restrained, rather referring to the provisions of the Act of 1983, learned counsel argued that in case of violation of any of the conditions of the certificate, it can be cancelled by the competent authority, but a case cannot be registered. Learned counsel further made reference of Section 10 read with Section 24 of the Act of 1983, to demonstrate that even none of the provisions are offended so as to lodge FIR against the petitioner. Section 10 of the Act of 1983 applies when business is undertaken without a valid certificate, whereas, in the present case, perusal of the FIR does not show any such allegation. None of the offences, as given under Section 24, has been alleged in the FIR. In view of above also, the impugned FIR deserves to be quashed. Learned counsel also contended that even if the definition of “recruiting agent” as given under Section 2(l) of the Act of 1983, is perused, petitioner was working as a person engaged in India in the business of recruitment for an employer and representing such employer with respect to any matter in relation to such recruitment including dealings with persons so recruited or desiring to be so recruited. It was not necessary for the petitioner to have an offer from the employer in advance, rather invitation/advertisement can be made for recruitment in anticipation from and amongst the desiring candidates. In view of the above also, business of the petitioner was as per the definition given under Section 2(l) of the Act of 1983. It does not amount to any offence, if he issued an advertisement to invite applications for recruitment out of India, even if no offer from the employer was lying. In view of the above also, business of the petitioner was as per the definition given under Section 2(l) of the Act of 1983. It does not amount to any offence, if he issued an advertisement to invite applications for recruitment out of India, even if no offer from the employer was lying. It is contended that the police acted in a malafide manner as the search was made when the petitioner was abroad. They had taken a sum of Rs.15,000/- from the office, but had not mentioned it while lodging the FIR against the petitioner. Earlier also, they had demanded money from the petitioner. Thus, looking to the aforesaid also, impugned FIR deserves to be quashed. It is lastly contended that prosecution cannot be instituted without prior approval of the Government of India, as given under Section 27 of the Act of 1983. The prosecution in the present case has been instituted in respect of an offence under the Act of 1983 without previous sanction of the Central Government. It is more so when no complaint was made by any of the emigrants and no document was placed to constitute the offence. In view of above also, the FIR lodged by the police deserves to be quashed. I have considered rival submissions of the parties and perused the record. The FIR has been challenged mainly on the ground that it does not constitute an offence on bare reading thereof. Reference of Sections 10 and 24 of the Act of 1983 has been given to demonstrate that a recruiting agent having authorization to make recruitment cannot be said to have committed an offence under Section 10 and if an offence under Section 10 is not made out, then Section 24 of the Act of 1983 cannot be applied. For ready reference, Sections 10 and 24 of the Act of 1983 are reproduced as under:- “10. For ready reference, Sections 10 and 24 of the Act of 1983 are reproduced as under:- “10. No person to function as recruiting agent without a valid certificate.-Save as otherwise provided in this Act, no recruiting agent shall, after the commencement of this Act, commence or carry on the business of recruitment except under and in accordance with a certificate issued in that behalf by the registering authority: PROVIDED that a person carrying on the business of recruiting agent immediately before the commencement of this Act may continue to carry on such business without such a certificate for a period of one month from such commencement, and if he has made an application for such certificate under this Act within the said period of one month and such application is in the prescribed form and contains the prescribed particulars, till the disposal of such application by the registering authority. 24. Offences and penalties: (1) Whoever— (a) except in conformity with the provisions of this Act emigrates; (b) contravenes the provisions of section 10 or section 16; (c) by intentionally furnishing any false information or suppressing any material information obtains a certificate or a permit or an emigration clearance under this Act; (d) without lawful authority makes or causes to be made any alteration in any certificate or permit or in any document or endorsement by way of emigration clearance issued or made under this Act; (e) disobeys or neglects to comply with any order of the Protector of Emigrants under this Act; (f) collects from an emigrant any charge in excess of the limits prescribed under this Act; (g) cheats any emigrant, shall be punishable with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees: PROVIDED that in the absence of any special and adequate reasons to the contrary to be mentioned in the judgment of the court, such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees. (2) Whoever attempts to commit any offence under subsection (1) shall be punishable with the punishment provided for such offence under that sub-section. (2) Whoever attempts to commit any offence under subsection (1) shall be punishable with the punishment provided for such offence under that sub-section. (3) Whoever contravenes any term or condition subject to which any emigration clearance has been given under this Act, shall, if no other punishment is provided elsewhere in this Act for such contravention, be punishable with imprisonment for a term which may extend to one year or with fine which may extend to two thousand rupees or with both. (4) Whoever abets any offence punishable under this Act shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided for that offence. (5) Whoever, having been convicted of an offence under any provision of this Act is again convicted of an offence under the same provision, shall be punishable, for the second and for each subsequent offence, with double the penalty provided for that offence.” A perusal of Section 10 of the Act of 1983 reveals that no person can function as recruiting agent without a valid certificate. The petitioner was having certificate to work as recruiting agent. The question however is as to whether a recruiting agent can work in violation of conditions of the certificate. Section 10 of the Act of 1983, provides that recruiting agent has to undertake the business in accordance with the conditions of certificate. If the allegation made in the FIR is looked into, it is regarding violation of the conditions of the certificate to work as an agent. The basic allegation in the FIR is about issuance of an advertisement without an offer from the employer. For that purpose, what are the conditions of the certificate, were also looked into by the Court. If no offer exists from the employer, on whose behalf recruiting agent can act, it would be nothing but an act amounting to cheating, as provided under Section 24(g) of the Act of 1983. I am not giving specific finding for that purpose as the case is at the initial stage and any comment would affect the petitioner. However, it cannot be said that on mere perusal of the FIR, offence is not made out under Section 10/24 of the Act of 1983. I am not giving specific finding for that purpose as the case is at the initial stage and any comment would affect the petitioner. However, it cannot be said that on mere perusal of the FIR, offence is not made out under Section 10/24 of the Act of 1983. The other argument raised by the Counsel for the petitioner is in reference to Section 2(l) of the Act of 1983, which provides the definition of “recruiting agent” and is quoted hereunder for ready reference:- “2. Definitions.-(1) In this Act, unless the context otherwise requires- (a)........................... (l) “recruiting agent” means a person engaged in India in the business of recruitment for an employer and representing such employer with respect to any matter in relation to such recruitment including dealings with persons so recruited or desiring to be so recruited.” It is to show that even if the recruiting agent has no offer from the employer outside India, he can advertise/invite applications for making recruitment. Perusal of the definition, quoted above, rather goes against the petitioner. As per the definition given above, a recruiting agent can undertake the business of recruitment for an employer and representing such employer with respect to any matter in relation to such recruitment including dealings with persons so recruited or desiring to be so recruited. The recruiting agent cannot undertake the business without any offer from the employer and if the allegation made in the FIR is looked into, there was no offer from any employer for recruitment. In view of the above, even the petitioner was undertaking the business contrary to the definition given under Section 2(l) of the Act of 1983. Accordingly, it cannot be said that even if the allegation exists against the petitioner, it does not constitute an offence. A reference of the order/circular issued by the Government of India dated 12.12.2005 is also given. It is to show that police should not register a case for an offence under the Act of 1983. I am not impressed with this argument made by the Counsel for the petitioner. The administrative order cannot annul or govern the statutory provisions. When Section 10/24 of the Act of 1983 provides for punishment on commission of offence, registration of FIR cannot be barred by an administrative order. I am not impressed with this argument made by the Counsel for the petitioner. The administrative order cannot annul or govern the statutory provisions. When Section 10/24 of the Act of 1983 provides for punishment on commission of offence, registration of FIR cannot be barred by an administrative order. In view of the above, administrative order dated 12.12.2005, issued by the Government of India does not provide any assistance to the petitioner. It is also stated that there was no complaint by any of the emigrants or person and, in absence of any complaint or material for that, lodging of FIR is not proper. To appreciate the aforesaid argument, I have gone through the FIR. Any comment at this stage would affect the petitioner's case, but since the argument has been raised by the Counsel for the petitioner, this Court is dealing with the issue. The allegation against the petitioner is for issuance of advertisement for recruitment outside India without any offer from the employer, on whose behalf he can act as a recruiting agent. In the search made by the police, no document was recovered to show that the petitioner had any offer. If any offer was there, it can be produced before the police to show that allegations are not correct. At this stage, it cannot be said that in absence of any complaint by an emigrant, registration of the case would not be proper, even if no document could be recovered by the police showing offer of any employer for whom recruitment could have been advertised or offered by the petitioner. The complaint by an emigrant is not a pre-condition to lodge the FIR. The case of violation of the conditions of the certificate so as the provisions of Section 24(g) of the Act of 1983 is, prima-facie, made out. The question now remains about Section 27 of the Act of 1983. The aforesaid is also reproduced hereunder for ready reference:- “27. The case of violation of the conditions of the certificate so as the provisions of Section 24(g) of the Act of 1983 is, prima-facie, made out. The question now remains about Section 27 of the Act of 1983. The aforesaid is also reproduced hereunder for ready reference:- “27. Previous sanction of Central Government necessary.-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 manger of that family.” It is, no doubt, true that previous sanction of the Central Government is necessary for institution of the prosecution. However, Proviso to the aforesaid is relevant, which shows that when an offence is committed in respect of an emigrant or an intending emigrant etc., previous sanction would not be required. In the instant case, the allegation against the petitioner is that he issued an advertisement for employment without an offer from any employer. Thus, it is nothing but intention to cheat an intending emigrant by issuing an advertisement. In view of the facts above, Proviso to Section 27 of the Act of 1983 governs the present case, thus Section 27 of the Act of 1983 cannot annul the FIR. In view of discussion made above, I do not find that FIR lodged against the petitioner can be quashed on any of the grounds raised by learned counsel for petitioner. However, while dismissing the present criminal misc. petition filed by the petitioner under 482 Cr. P.C., it is made clear that any comment or observation made in this order, would not affect the investigation or would be taken adverse to the petitioner. The discussion has been made only to deal with the arguments made by learned counsel for petitioner. However, while dismissing the present criminal misc. petition filed by the petitioner under 482 Cr. P.C., it is made clear that any comment or observation made in this order, would not affect the investigation or would be taken adverse to the petitioner. The discussion has been made only to deal with the arguments made by learned counsel for petitioner. The police shall conduct independent and fair investigation, in which, petitioner is given liberty to produce the documents, if any. The stay application also stands dismissed.