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2020 Supreme(Ker) 199
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MARY JOSEPH, J.
Aboobacker, S/o.Syed Muhammed – Appellant
Versus
The State Of Kerala – Respondent
Crl.MC.No.6344 of 2014
Decided on : 12-03-2020
Advocate Appeared:
For the Appellant : SRI.R.T.PRADEEP
For the Respondent: SRI.B. JAYASURYA
IMPORTANT POINT
A person who has committed an offence under the Emigration Act, a sanction from the Central Government is necessary, unless the person is an emigrant or intending emigrant and complaint is preferred by the emigrant or intending emigrant or on behalf of such emigrant or intending emigrant, by the relatives.
Headnote:
Emigration Act, 1983,Section 24 (1)(b) – For an effective prosecution of a person for any of the offences under Section 27 of the Act, sanction from the Central Government or such officer or authority as authorized by the Central Government by order in writing in this behalf is pre-requisite.
Statement of facts:
This Criminal M.C. is filed under Section 482 of the Code of Criminal Procedure seeking to quash all further proceedings initiated in C.C.No.200/2014 pending on the files of Chief Judicial Magistrate Court, Kozhikode which is originated from Crime No.142/1999 of Kasaba Police Station.
Finding of facts:
The prosecution on hand was not initiated by an emigrant or intending emigrant so as to evade from obtaining sanction from the Central Government or an authorised authority prescribed by the said Government. The prosecution being originated by the police against an alleged recruiting agent, sanction must inevitably be procured from the Central Government or an officer authorised by the Central Government. The prosecution is liable to fail if cognizance is taken by the court without sanction being accompanied by the Final Report filed by the investigating agency.
Result:Crl MC is allowed.
The legal document discusses the necessity of obtaining prior sanction from the Central Government or an authorized officer before initiating prosecution under certain provisions of the Emigration Act, 1983. Specifically, Section 27 of the Act mandates that no prosecution can be instituted without such sanction, except when the offence is committed in respect of an emigrant or intending emigrant and the complaint is filed by or on behalf of that emigrant or intending emigrant or their close relatives or guardians (!) (!) .
In the case at hand, the prosecution was initiated against an alleged recruiting agent, not an emigrant or intending emigrant, and the final report was filed without the necessary sanction from the Central Government or an authorized officer. The court found that this omission rendered the cognizance taken by the court invalid, as it was a procedural requirement that had not been fulfilled (!) (!) .
Consequently, the court exercised its authority under Section 482 of the Criminal Procedure Code to quash all further proceedings, including the final report and the charges against the accused. The purpose of this provision is to prevent the continuation of proceedings that are legally defective or lack the necessary procedural compliance, thereby ensuring that the prosecution adheres to statutory requirements (!) (!) .
Overall, the key legal principle established is that for offences under the Emigration Act, prosecution must be preceded by obtaining the requisite sanction from the Central Government or an authorized officer, and failure to do so invalidates the proceedings.
ORDER :
This Criminal M.C. is filed under Section 482 of the Code of Criminal Procedure seeking to quash all further proceedings initiated in C.C.No.200/2014 pending on the files of Chief Judicial Magistrate Court, Kozhikode which is originated from Crime No.142/1999 of Kasaba Police Station.
2. Petitioner is the first accused in the case. The allegation against him was that he alongwith accused Nos.2 to 4, has committed an offence punishable under Section 24 (1)(b) of the Emigration Act, 1983 (for short 'the Act'). Though the crime was registered against five accused, the names of accused Nos.3 and 4 have been removed from the array of the accused during the course of investigation itself.
3. The contention of Sri.R.T.Pradeep, the learned counsel for the petitioner was that the court has taken cognizance on the final report, without sanction being obtained from the Central Government to prosecute them. The learned counsel pointedly argued quoting Section 27 of the Act that for taking cognizance on offences coming under the provisions of the Act, sanction from the Central Government is a pre-requirement.
4. The learned Public Prosecutor, based on a statement filed by him before this Court has submitted that final report was laid before the court without sanction obtained from the Central Government and appended thereto.
5. Section 27 of the Act is apposite to be extracted for reference in the context:
“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 manager of that family.”
6. Section 27 of the Act provides that for effectively prosecuting a person for any of the offences thereunder, sanction from the Central Government or such officer or authority as authorised by the Central Government by order in writing in this behalf is pre-requisite.
7. Proviso to Section 27 says that sanction is not required when an offence has been committed in respect of an emigrant or an intending emigrant and complaint is preferred by the emigrant or intending emigrant or on behalf of such emigrant or intending emigrant, by the relatives or guardians of such emigrant or intending emigrant, or by the manager of the family, the emigrant or intending emigrant being a member of a Joint Hindu Family.
8. The prosecution on hand was not initiated by an emigrant or intending emigrant so as to evade from obtaining sanction from the Central Government or an authorised authority prescribed by the said Government. The prosecution being originated by the police against an alleged recruiting agent, sanction must inevitably be procured from the Central Government or an officer authorised by the Central Government. The prosecution is liable to fail if cognizance is taken by the court without sanction being accompanied by the Final Report filed by the investigating agency.
9. The learned Public Prosecutor obtained a report from the investigating officer and this Court is convinced from the contents of the report that sanction as contemplated under Section 27 of the Act was not available for consideration while cognizance was taken on the Final Report. Therefore, act of taking cognizance is vitiated. Evenif the trial is let to proceed, it will not serve the intended purpose of the prosecution.
In the result, Crl.M.C is allowed. The Final Report (Annexure III) and all furth
