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2022 Supreme(Ker) 245
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ziyad Rahman A.A., J.
Muhammed Hasheer Poolakkal S/o. Ali Muhammed P. - Appellant
Vs.
The United Arab Bank P.J.S.C (UAB) - Respondent
CRL.MC NO. 3679 OF 2021
Decided On : 07-04-2022
Advocate Appeared:
For the Appellant : Nireesh Mathew
For the Respondent: Johnson Gomez, Sanjay Johnson, Sreedevi S., John Gomez, Mohamed Sheharan, Sri.Ranjit George
Point of Law: absence of specific words in Section 105C(1) to entertain an application invoke the powers, at the instance of any individual or institution is also a crucial aspect to be taken into consideration for understanding the true purport behind the same.
Headnote:
Code of Criminal Procedure, 1973 - Sections 105C, 105C(1), 105C(3), 105D, 105D(1), 105E, 105J - Assistance in relation to orders of attachment or forfeiture of property - Identifying unlawfully acquired property - Seizure or attachment of property – Whether powers of court under provisions of said Chapter can be invoked based on an application submitted by an individual/establishment or is it necessary to submit a request in this regard by Central Government – Whether learned Magistrate is empowered to pass an order like Annexure B on an application in this regard submitted by 1st respondent Herein - Whether he is a citizen of India or not, cannot directly approach court for invoking said powers, as same would amount to bypassing procedure contemplated by Government and safeguards to be applied while considering such request - Whether such a petition can be maintained at instance of an individual or institution, in absence of specific authorisation in this regard, is crucial question that arises –
Finding of the Court:
If legislature intended to empower court to initiate such proceedings at instance of any individual or establishment, same would have been mentioned explicitly in provision itself - In absence of such a specific enabling provision, Court is of view that permitting any individual or establishment to file such an application would amount to reading into said provision something which was never intended to be contemplated therein - This is especially when objects and reasons of enactment clearly indicate that introduction of said Chapter was based on international agreements with certain countries - There can be no dispute that such agreements are in exclusive domain of Central Government - Court is of view that Annexure A petition was not maintainable before Judicial First Class Magistrate Court VII, Kozhikode, as same was filed by an institution, namely a banking company, without same being forwarded by Central Government or any other authorities in this regard –
Result: Crl. M.C. is allowed
ORDER :
The petitioner herein is the respondent in C.M.P. No.50/2021 on the file of the Judicial First Class Magistrate Court - V, Kozhikode. The aforesaid C.M.P. was filed by the 1st respondent herein invoking the powers of the court under Chapter VIIA of the Code of Criminal Procedure, wherein the prayer sought was to initiate the proceedings for attachment of the properties of the petitioner herein. The crucial question that arises here is whether the powers of the court under the provisions of the said Chapter can be invoked based on an application submitted by an individual/establishment or is it necessary to submit a request in this regard by the Central Government.
2. The facts leading to the filing of this Crl. M.C. is as follows: The 1st respondent is a banking financial institution in Sharjah, U.A.E. The petitioner herein had availed a credit facility from the said bank for the purpose of his business in U.A.E. to the tune of AED 4,698,243.42. Subsequently, the petitioner defaulted repayment of the loan amount and certain cheques issued by the petitioner towards repayment of the loan were also dishonoured. Accordingly, a criminal prosecution was launched before the U.A.E. court, at the instance of the 1st respondent herein and it culminated in Annexure D order. As per Annexure D, the petitioner herein was found guilty, and he was sentenced to undergo imprisonment for three years. 3. On the strength of Annexure D judgment passed by the court in U.A.E., the 1st respondent herein submitted Annexure A application before the Judicial First Class Magistrate Court – VII, Kozhikode for initiating proceedings against the petitioner herein, as contemplated under Sections 105C to 105J of Code of Criminal Procedure, 1973. After considering the aforesaid petition, Annexure B order was passed, and a direction was issued by the learned Magistrate to the Station House Officer, Feroke Police Station, to take all necessary steps for tracing and identifying the properties of the respondent which were derived as proceeds of crime, as contemplated under section 105C. This Crl. M.C. is filed by the petitioner challenging the Annexure B order.
4. Heard Sri.Nireesh Mathew, learned counsel appearing for the petitioner, Sri. Johnson Gomez, learned counsel appearing for the 1st respondent and Sri. Ranjit George, learned counsel appearing for the State.
5. As mentioned above, the question that arises is whether the learned Magistrate is empowered to pass an order like Annexure B on an application in this regard submitted by the 1st respondent herein. The provisions in Chapter VII A were incorporated in the statute by way of Code of Criminal Procedure (Amendment) Act, 1993 (Act No.40 of 1993), and it came into force with effect from 20.07.1994. The aforesaid Chapter deals with the powers of the court and the procedure to be adopted for the reciprocal arrangement for assistance in matters relating to attachment and forfeiture of property. The relevant provisions which apply to this case are Sections 105C to 105E.
105C. Assistance in relation to orders of attachment or forfeiture of property.--
(1) Where a Court in India has reasonable grounds to believe that any property obtained by any person is derived or obtained, directly or indirectly, by such person from the commission of an offence, it may make an order of attachment or forfeiture of such property, as it may deem fit under the provisions of sections 105D to 105J (both inclusive).
(2) Where the Court has made an order for attachment or forfeiture of any property under sub-section (1), and such property is suspected to be in a contracting State, the Court may issue a letter of request to a Court or an authority in the contracting State for execution of such order.
(3) Where a letter of request is received by the Central Government from a Court or an authority in a contracting State requesting attachment or forfeiture of the property in India, derived or obtained, directly or indirectly, by any perso
