Muhammad Rafi v. State Of Kerala & Another

V. Giri, J.:— These Criminal Miscellaneous cases have come up on a reference made by a learned Judge of this Court under Section 3 of the High Court Act. Learned Judge felt that the principal issue which came up for consideration in both these cases requires an authoritative pronouncement by a Bench of this Court. The said issue can be encapsulated as “whether the police can investigate an offence committed outside India by an Indian citizen and whether a jurisdictional Magistrate can order such investigation to be conducted by the police under Section 156 of the Code of Criminal Procedure, in respect of an offence which is alleged to have been committed by an Indian citizen outside India without obtaining prior sanction from the Central Government as contemplated by Section 188 of the Code of Criminal Procedure”. There are two authoritative pronouncements by this Court, one by a Division Bench which specifically considered this issue namely Muhammed v. State of Kerala (1994 (1) KLT 464) and the other by a Full Bench of this Court which in turn affirmed the view taken by the Division Bench in Muhammed namely Samarudeen v. Asst Director of Enforcement (1999 (2) KLT 794 (FB)) These two judgments have been referred to by the learned Judge in the order of reference. But it seems that an issue was raised as to whether the view taken by the Division Bench in Mohammed and by the Full Bench in Samarudeen requires re-consideration in the light of the observations made by the Supreme Court in Central Bureau of Investigation v. State of Raiasthan ((1996) 9 SCC 735 : AIR 1996 SC 2402).

2. Since the controversy turns around Section 188 of the Cr. P.C, it will be appropriate to extract the same. Section 188 of the Code of Criminal Procedure reads as follows:—

Offence committed outside India - When an offence is committed outside India—

(a) by a citizen of India, whether on the high seas or elsewhere;

(b) by a person, not being such citizen, on any ship or aircraft registered in India,

he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:

provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except wit the previous sanction of the Central Government.

3. The substantive provision relatable to Section 188 of the Cr. P.C is that which is contained in Section 4 of the IPC, which reads as follows

Extension of Code to extra-territorial offences - The provisions of the Code apply also to any offence committed by—

(1) Any citizen of India in any place without and beyond India;

(2) Any person on any ship or aircraft registered in India wherever it may be.

4. The first part of Section 188 of the Code affirms extra territorial jurisdiction of the Code, in so far as the citizens of India are concerned, ie., when an offence is committed outside India by an Indian citizen, he is to be “dealt with” in respect of such offence as if it had been committed at a place within India where he may be found. The dispute raised as to whether the words “dealt with”, occurring in the first part of Section 188, will take in the power to investigate the offence as well as settled by the authoritative pronouncement of the Supreme Court in Delhi Administration v. Ram Singh (AIR 1962 SC 63) which was referred to by the Division Bench in Muhammed's case. A learned Judge of this Court in Assistant Collector, Central Excise Ernakulam v. K.I Pavunni (1988 (2) KLT 194) took a view that if the alleged offences are committed outside India, a Magistrate cannot direct an investigation by the police under Section 156(3), except with an order of sanction by the Central Government as contemplated by Section 188 of the Cr. P.C In other words, the view taken was that the investigation into an offence alleged to have been committed outside India by an Indian citizen, requires sanction by the Central Government. A different view was taken by an another learned Judge of this Court in Remla v. S.P of Police (1993 (1) KLT 412). It seems that the view taken by Justice Sreedharari, (as he then was) in Shadili, was not brought to the notice of Justice Thomas (as he then was), when Remla was decided.

5. But the Bench (Justice M. Jagannadha Rao & Justice K.G Balakrishnan, as their Lordships then were while dealing with Muhammed, referred to the view taken in Remla and affirmed the same. Paragraph 24 and 25 of Muhammed read as follows

The words ‘deal with’ in the main part of Section 188 Cr. P.C, in out view, used in a vide sense. While the proviso to Section 188 Cr. P.C requires sanction of the Central Government for purposes of ‘inquiry’ and ‘trial’, the words ‘deal with’ in the main part must necessarily include at least ‘inquiry’ and ‘trial’. The words ‘deal with’ in Section 4 of the Cr. P.C, referred to above, as amounting to something other than ‘investigation’, ‘inquiry’ and ‘trial’, therefore, false to the ground in fact, even while construing Section 4 Cr. P.C, the Supreme Court has stated in Delhi Administration v. Ram Singh (AIR 1962 SC 63) that the words ‘deal with’ in that Section include not only ‘investigation’, ‘inquiry’ and ‘trial’ but other aspects also. In view of the said decision of the Supreme Court, the words ‘dealt with’ in S. 188 Cr. P.C, must be held to include ‘investigation’ also, apart from ‘inquiry’ and ‘trial’. For purposes of ‘investigation’ into offences committed abroad, sanction of the Central Government is not necessary.

It is true S. 188 Cr. P.C is in Chapter XIII dealing with ‘inquiry’ and ‘trial’. But, that, in out opinion, is not conclusive. On the other hand, S. 188 Cr. P.C is complimentary to S. 4-IPC and must cover the procedure relating to ‘investigation’ also. Headings of Chapters are external aids and can be resorted to only if there is any ambiguity in the inacting words. Further, the scope and ambit of the main part of S. 188 Cr. P.C, cannot be controlled by the proviso. The words ‘dealt with’ in the main part cannot be restricted to ‘inquiry’ and ‘trial’ used in the proviso.

6. Another learned Judge of this Court in Samarudeen v. Asst. Director of Enforcement (1995 (1) KLT 468) too the view that the investigation into an offence committed outside India cannot be conducted unless there was a prior sanction by the Central Government under Section 188 of the Cr. P.C This view was contrary to the view taken by the Division Bench in Muhammed, and was taken in spite of the fact that the judgment in Muhammed was specifically brought to the notice of the learned Judge.

7. An appeal preferred against Samarudeen came to be referred to the Full Bench. It may be noted that, in the meanwhile, the view taken in Muhammed was followed by another learned Judge of this Court in Muhammed Sajeed v. State of Kerala, (1995 (1) KLT 748). The Full Bench Which dealt with Samarudeen v. Asst. Director of Enforcement (1999 (2) KLT 794 (FB)) specifically referred to the view taken by the Division Bench in Muhammed and expressed its agreement with the view taken in Muhammed. Full Bench also felt that the learned single Judge in the case of Samarudeen, ought not to have ignored the binding precedent in Muhammed. Directions were issued by the Full Bench, for investigation of the offences affirming the decision that the police can conduct investigation into offences committed abroad and no sanction from the Central Government is required for such investigation. The view taken by the Division Bench in Muhammed met with the approval of the Full Bench in Samarudeen as well.

8. As stated above, the learned Judge has in the Reference Order referred to the aforementioned decisions and has indicated that the learned Judge would have also considered himself bound to follow the view taken in Muhammed as also Samarudeen, but chose to refer the matter to the Bench in the light of the contention taken up by the respondent to the effect that the Supreme Court had, in the case of Central Bureau of Investigation v. State of Rajasthan ((1996) 9 SCC 735 : AIR 1996 SC 2402) made an observation, which does not seem to be in consonance with the view taken in Muhammed and Samarudeen.

9. We have heard learned counsel on either side elaborately and we have gone through the judgment of the Supreme Court in CBI's case paying broad attention to the observation referred to by the learned counsel for the petitioner in paragraph 24 of the judgment. We think it is appropriate to refer to the facts of the case in Central Bureau of Investigation v. State of Rajasthan ((1996) 9 SCC 735 : AIR 1996 SC 2402) at some length before considering whether the observation referred to by the learned counsel in paragraph 24 of the judgment constitutes a ratio in which case, the submission made by the learned counsel for the accused as regards the necessity, to obtain sanction, may require to be accepted.

10. Central Bureau of Investigation v. State of Rajasthan ((1996) 9 SCC 735 : AIR 1996 SC 2402) dealt with a case where it was alleged that the respondent therein had committed offences under the Foreign Exchange Regulation Act, 1973. An application was filed by the Central Bureau of Investigation before the Chief Judicial Magistrate (Economic Offences), Jaipur, for grant of permission to the Deputy Superintendent of Police to investigate the offence under Section 25(1) read with Section 56 of the Foreign Exchange Regulation Act, 1973. The application was dismissed by the learned Magistrate andthis was affirmed by the High Court as well. The principal issue which was considered by the Supreme Court was whether the officers under the Delhi Special Police Establishment Act, can conduct an investigation into an offence under the FERA stated to have been committed outside the country. The Supreme Court held as follows in paragraph 20 and 21 of the judgment.

“The member of DSPE is a member of police force constituted under DSPE Act a member of DSPE can exercise the power of investigation in the offence or offences as specified in S. 3 of the DSPE Act within Union territory. For exercising power of investigation outside Union territory, even in respect of offences specified under S. 3 of the DSPE Act, a notification extending jurisdiction in the State or States outside Union territory is required to be issued by the Central Government with the consent of such State Government or Governments. Unless such notification under Section 5 of the DSPE Act is issued, a member of DSPE cannot investigate and exercise jurisdiction under DSPE Act in respect of offence or offences specified in S. 3 in a State outside the Union territory. It has already been indicated that notifications under S. 3 and 5 have been issued by the Central Government authorizing members of DSPE to investigate various offense including offences under FERA in a member of States outside Union territory including the State of Rajasthan.

In our view, such notifications under Sections 3 and 5 of DSPE Act are necessary for the purpose of exercising powers by a member of DSPE in respect of offence or offences and in respect of areas outside the Union territory. It may however be noted here that by a general notification, members of DSPE may be authorized to exercise power of investigation in respect of offence or offences under areas as specified in the notification under Section 3 and 5. As already indicated, although officers of Enforcement Directorate are clothed with the powers and duties to enforce implementation of the provisions has been authorised to impose on other officers including a police officer, power and authority to discharge such of duties and functions as may be specified by it. It is nobody's case that any notification been issued under FERA authorizing the members of DSPE to discharge duties and functions of an officer of enforcement Directorate. In out view, in the absence of such notification under FERA, a member of DSPE, despite the aforesaid notifications under Sections 3 and 5 or DSPE Act, cannot be held to be an officer under FERA and therefore is not competent to investigate into the offences under FERA.”

11. It was further held by the Supreme Court that FERA is a special legislation relating to regulation of foreign exchange and enacted at a later point of time than the Delhi Special Police Establishment Act. It was further held that Sections 4 and 5 of the Cr. P.C will not come in aid of the investigation of offences under FERA by a member of the police force or an officer of the DSPE in accordance with the Criminal procedure Code. Section 5 of the Cr. P.C therefore, was not applicable in respect of the offences under the FERA. Finding that a separate notification under the FERA had not been issued in the said case authorizing investigation into offences under the FERA, the Supreme Court specifically held that the member of the DSPE is not clothed with the authority to investigate offences committed outside India”. After having held so, in specific terms, the Court also made an observation that “even under Section 188 of the Cr. P.C, investigation of offences committed outside India can be made only with the permission of the Central Government”. It is this observation, that is being projected by the learned counsel for the accused in Crl. M.C 4666/2008, as one warranting an inference that a Pre-enquiry investigation, in relation to an offence alleged to have been committed outside India will also require the sanction by the Central Government under Section 188 of the Cr. P.C We are afraid that we are unable to accept the submission. In the case of CBI, Supreme Court was concerned I with the authority of the officers in the CBI to investigate into an offence, involving I contravention of FERA, stated to have been committed outside India. The Court construed the provisions of the DSPE Act and the FERA and specifically held that the provisions of the Cr. P.C are not applicable to investigation of the offences under the FERA. Thus, the declaration of law made by the Supreme Court, and affirmation of the order impugned before the Supreme Court was rested oil the provisions contained in the FERA. In view of the observations made above, reference to Section 188 of the Cr. P.C cannot be constructed as a ratio of the judgment. In fact the provisions of Section 188 of the Cr. P.C were not projected for consideration before the Lordships of the Supreme Court, nor was it considered by the Supreme Court. There is a very specific affirmation made, by the Supreme Court in paragraph 22 of the judgment that FERA is a self-contained Code containing comprehensive provisions relating to investigation, inquiry and trial for the offences under the Act and the provisions of Cr. P.C are not applicable in that regard. Observation that an investigation into an offence committed outside Indian territory may be made only with the permission of the Central Government as contained in paragraph 24 of the judgment, in the context in which the said observation was made, can only be one which was rendered the context of investigation for offences under the Foreign Exchange Regulation Act.

12. We are in respectful agreement with the declaration of law made by the Bench of this Court in Muhammed. We therefore, affirm the view that any investigation of an offence, punishable under the Indian Penal Code and alleged to have been committed outside India by an Indian citizen will not require sanction of the Central Government under Section 188 of the Cr. P.C

13. Crl. M.C 4666/2008 has been preferred by the accused challenging the proceedings in Crime No. 31/08 of Nedumbassery Airport police station. Several grounds have been taken in the Criminal Miscellaneous case and absence of an order of sanction under Section 188 of the Cr. P.C is only one among them. In these circumstances, we are of the view that Crl. M.C 4666/2008 should be dealt with by the appropriate Court which hears miscellaneous cases under Section 482 of the Cr. P.C Registry shall therefore, post Crl. M.C 4666/2008 before the learned single Judge as per roster. In so far as the said Crl. M.C is concerned we have only answered the reference and other issues which arise therein, may be dealt with by the concerned learned single Judge.

14. In so fat as Crl. M.C 5032/2008 is concerned, petition has been preferred by the complainant in Crl. M.P 4659/2008 on the files of the Judicial Magistrate of First Class - I, Aluva. The complaint alleges that the offences is committed by the accused, as Indian citizen outside India. Learned Magistrate has, without referring to Section 188 of the Cr. P.C posted the complaint for an enquiry as contemplated under Section 202 of the Cr. P.C Obviously, this is clearly wrong, as an enquiry by a Court into an offence committed outside India can only be with the sanction of the Central Government. Crl. M.C 5032/2008 is therefore, allowed and the learned Magistrate is directed to consider Crl. M.P 4659/2008 with specific reference to the plea made by the complaint for a direction to the police to investigate the offence as alleged therein. The question referred to the Bench is answered as above. Crl. M.C 5032/2008 is disposed of in the above terms.

15. Registry shall post Crl. M.C 4666/2008 before the learned single Judge to deal with the matters as mentioned above.