High Court Kerala High Court

Benny Joseph vs State Of Kerala on 20 September, 2010

Kerala High Court
Benny Joseph vs State Of Kerala on 20 September, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 26649 of 2010(Q)


1. BENNY JOSEPH, AGED 50 YEARS,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. THE DIRECTOR GENERAL OF POLICE,

3. SUPERINTENDENT OF POLICE,

4. THE DY.SUPERINTENDENT OF POLICE,

5. THE CIRCLE INSPECTOR OF POLICE,

6. THE CIRCLE INSPECTOR OF POLICE,

7. THE UNION OF INDIA,

8. THE PRORTECTOR GENERAL OF

9. THE PROTECTOR OF IMMIGRANTS,

10. FRANCIS CHEMBOLA, CHEMBOLA AMERICAN

11. SAM GEORGE, MATOLIL HOUSE,

12. JOSEPH JOSEPH @ KOCHUMON,

                For Petitioner  :SRI.C.V.MANUVILSAN

                For Respondent  :SHRI.K.A.MANZOOR ALI, CGC

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :20/09/2010

 O R D E R
          M.SASIDHARAN NAMBIAR,J.

           ---------------------------------------------
            W.P.C.NO.26649 OF 2010
           ---------------------------------------------
           Dated 20th          September, 2010


                         JUDGMENT

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

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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

Wpc 26649/10
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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

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prosecuting the accused in C.C.522/2006.

5. 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

Wpc 26649/10
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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

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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.

6. Ext.P6 representation was sent by

the petitioner to the Secretary, Department of

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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.

Petition is allowed in part. Judicial

First Class Magistrate, Ettumanoor is directed

to keep the trial of C.C.522/2006 in abeyance

Wpc 26649/10
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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.

M.SASIDHARAN NAMBIAR,
JUDGE.

uj.