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.
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W.P.C.NO.26649 OF 2010
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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
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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
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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
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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.