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2018 DIGILAW 422 (KER)

Brijith v. State of Kerala

2018-06-07

R.NARAYANA PISHARADI

body2018
ORDER : This is an application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure. 2. The petitioners are the first and the second accused in the case registered as Crime No.884 of 2017 of the Sreekrishnapuram Police Station under Sections 406 and 420 read with 34 I.P.C. 3. The prosecution case is as follows. The de facto complainant started a company in Oman by name 'Modern Globals'. The first petitioner had approached the de facto complainant and told him that he was an expert in the operations of passenger lift and vehicle lift and he was interested in starting a company in Oman for installation and maintenance of lifts. It was on the basis of this representation made by the first petitioner that the de facto complainant started the company. The first petitioner told the de facto complainant that to start the functioning of the company materials worth Rs.50,00,000/- would be required and he would return to India and the aforesaid materials would be sent from the company being conducted by him and the second petitioner at Palakkad. On the basis of this representation made by the first petitioner, the de facto complainant transferred a total amount of Rs.24,00,000/- to the bank account in the name of the company run by the petitioners. It is alleged that the petitioners did not send or supply the materials to the de facto complainant and thereby they cheated him. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. Perused the case diary. 5. The case against the petitioners is registered on the basis of the complaint filed by the de facto complainant before the Superintendent of Police, Palakkad. Even as per the allegations in this complaint, the second petitioner, who is the second accused in the case, had not made any inducement to the de facto complainant to part with any money. There is no allegation that the second petitioner had made any false representation to the de facto complainant. In the absence of any such allegation, the fact that there are other cases registered against the second petitioner for similar offences, need not deter this court from granting the benefit of pre-arrest bail to him. 6. However, the case against the first petitioner, who is the first accused in the case, stands on a different footing. In the absence of any such allegation, the fact that there are other cases registered against the second petitioner for similar offences, need not deter this court from granting the benefit of pre-arrest bail to him. 6. However, the case against the first petitioner, who is the first accused in the case, stands on a different footing. There is specific allegation against him that he had induced the de facto complainant to part with money on the promise that he would supply materials to the company started by the de facto complainant in Oman. It is alleged that the de facto complainant had transferred Rs.24,00,000/- to the bank account of the company run by the petitioners at Palakkad on the basis of such representation made by the first petitioner. Custodial interrogation of the first petitioner would be necessary to have an effective investigation of the case. The report of the investigating officer also shows that the first petitioner has got criminal antecedents. There are two other cases registered against the first petitioner under Section 420 I.P.C. 7. Learned counsel for the petitioners would submit that the entire transaction alleged by the de facto complainant had taken place in Oman and therefore, in view of the proviso to Section 188 Cr.P.C., no enquiry relating to the offence can be conducted in India without the sanction of the Central Government. Learned counsel for the petitioners draws support for this proposition from the decision of this court in Sanoop v. State of Kerala and Another, 2018 (1) KLD 706. The submission of the learned counsel for the petitioners cannot be accepted. It is a settled legal position that previous sanction of the Central Government envisaged under the proviso to Section 188 Cr.P.C. need be obtained only before the commencement of the trial. In Ajay Agarwal v. Union of India, AIR 1993 SC 1637 , the Supreme Court has held that sanction under Section 188 Cr.P.C is not a condition precedent to take cognizance of the offence. If need be it could be obtained before trial begins. 8. In Thota Venkateswarlu v. State of A.P, AIR 2011SC 2900, the Supreme Court has held as follows: “The language of S.188 Cr.P.C is quite clear that when an offence is committed outside India by a citizen of India, he may be dealt with in respect of such offences as if they had been committed in India. 8. In Thota Venkateswarlu v. State of A.P, AIR 2011SC 2900, the Supreme Court has held as follows: “The language of S.188 Cr.P.C is quite clear that when an offence is committed outside India by a citizen of India, he may be dealt with in respect of such offences as if they had been committed in India. The proviso, however, indicates that such offences could be inquired into or tried only after having obtained the previous sanction of the Central Government. .... The proviso to S.188, which has been extracted herein before, is a fetter on the powers of the investigating authority to inquire into or try any offence mentioned in the earlier part of the Section, except with the previous sanction of the Central Government. The fetters, however, are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of S.188 is required till commencement of the trial. It is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central Government would be required before the trial could commence. Accordingly, upto the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to S.188 Cr.P.C”. 9. Moreover, in this case, there are materials to find that the offence punishable under Section 406 I.P.C. has been committed in India and not in Oman. 10. In the light of the discussion above, the prayer for granting anticipatory bail to the first petitioner, who is the first accused in the case, is rejected. The second petitioner, who is the second accused in the case, is granted pre-arrest bail on the following conditions. (1) The second petitioner shall be released on bail on executing a bond for Rs.50,000/-(Rupees Fifty Thousand only) with two sureties each for the like amount in the event of his arrest by the police in Crime No.884/2017 of the Sreekrishnapuram Police Station. (2) Before releasing the second petitioner on bail, the Investigating Officer is entitled to interrogate him. The second petitioner shall co-operate with the investigation of the case. (2) Before releasing the second petitioner on bail, the Investigating Officer is entitled to interrogate him. The second petitioner shall co-operate with the investigation of the case. (3) The second petitioner shall appear before the Investigating Officer between 9.00 a.m. and 11.00 a.m. on all Mondays and Thursdays for a period of three months from the date of his release on bail and thereafter, on all second Saturdays for a period of six months or till final report is filed in the case, whichever is earlier. (4) The second petitioner shall not in any manner influence or intimidate the prosecution witnesses in the case. (5) The second petitioner shall surrender his passport in the Magistrate's Court / jurisdictional court concerned within three days of his release on bail. If he does not possess any passport, he shall file an affidavit to that effect in that court within that period. (6) The second petitioner shall not leave the State of Kerala without the prior permission of the jurisdictional court concerned. (7) The second petitioner shall appear before the Investigating Officer as and when directed by him in writing to do so. (8) If the second petitioner violates any of the conditions of bail, it is open to the Court having jurisdiction over the case to cancel his bail without any further orders of this Court but in accordance with law.