ORDER

The petitioner is the sole accused in C.C.No.125 of 2016 on the files of Additional Chief Judicial Magistrate Court, Ernakulam. The offences alleged against the petitioner are under Section 420 of Indian Penal Code and under Section 10 read with Section 24(b) of the Emigration Act, 1983.

2. The allegation against the petitioner is that he was running an establishment namely “New Calicut Travels” in a room situated at Lissy junction, Ernakulam, wherein he is carrying out the business of that of a recruitment agent. As part of his activities, he obtained the passport and other documents from CWs 2 to 4 on a promise to secure them Visa to go abroad. The basic allegation is that the petitioner was not having valid certificate or authorization as required under the Emigration Act to conduct said business.

3. Accordingly, Ernakulam Town North Police suo moto registered Annexure A FIR, with Crime No.392/2015 for the offence punishable under section 24(b) and 10 of Emigration Act, 1983. After completing the investigation, Annexure B final report was submitted for the offences punishable under Section 420 of Indian Penal Code and under Section 10 read with Section 24(b) of the Emigration Act, 1983, and cognizance of the same was taken by Additional Chief Judicial Magistrate, Ernakulam. This petition is submitted to quash all further proceedings pursuant to Annexure B final report.

4. Heard Ms. Sruthi, learned counsel for the petitioner and Sri.Sudheer Gopalakrishan, learned Public Prosecutor for the State.

5. Learned counsel for the petitioner contends that the prosecution on the basis of Annexure B is not legally sustainable in view of the fact that, no previous sanction as contemplated under Section 27 of Emigration Act, 1983 has been obtained. The learned Public Prosecutor opposes the same and seeks for dismissal of the petition.

6. The specific case of the petitioner is that going by the stipulation contained under Section 27 of Emigration Act, no prosecution can be instituted without any previous sanction of the Central Government. The only circumstance contemplated therein for initiating prosecution without sanction is in respect of cases where the crime is registered on the basis of a complaint submitted by an emigrant or intending emigrant or in his behalf, by his father, mother, husband, wife, son daughter, brother, sister or guardian. On going through the Annexure A FIR in this case, it can be seen that the case has been registered suo moto and no such complaint has been referred to. The position of law in this regard is settled by this Court in Oseela Abdul Khadher and Another v. Sate of Kerala [2012 (4) KHC 346]. In the said case a similar question was considered in the light of section 15 of the Passports Act which is similar to that of Section 27 of Emigration Act. In Aboobacker v.State of Kerala [2020 (30 KLT 358], the impact of section 27 of the Emigration Act was considered by this court and held that, in the absence of sanction by the Central Government, no cognizance can be taken. Since the previous sanction is a mandatory requirement as contemplated under Section 27(4) of the Act for initiating the prosecution, the failure in obtaining the same could vitiate the entire proceedings against the petitioner. It is evident from the records that no such sanction has been obtained from the Government in this case and hence the further proceedings pursuant to Annexure B are not legally sustainable. In Annexure B final report, the police incorporated offence under section 420 of IPC as well. However on going through the allegations contained in Annexure B, it can be seen that, the basic allegation against the petitioner is regarding the conduct of recruitment agency, for providing employment abroad, without license, and hence the offence attracted is under section 24 read with section 10 of Emigration Act. The very basis of charging the offence under section 420 of IPC is also the same allegations. Similarly, Annexure A F