Court No. - 6
Case :- APPLICATION U/S 482 No. - 8535 of 2003 Applicant :- Kishore Magan Lal Nagrecha Opposite Party :- State Of U.P. And Others Counsel for Applicant :- D.K. Singh,A.P. Sahi Counsel for Opposite Party :- Govt. Advocate,Nikhil Kumar,S.N.Singh
Hon'ble Yashwant Varma,J.
Heard learned counsel for the applicant. Although Sri Nikhil Kumar, learned counsel has appeared on behalf of the opposite party No. 2, he states that he no longer has instructions to contest or oppose this application on its behalf.
The instant application under Section 482 Cr.P.C. has been preferred calling in question the validity of proceedings instituted at the behest of opposite party No. 2 registered as Complaint Case No. 1017 of 2003 (Emirates Bank International Vs. Kishore Magan Lal Nagrecha and Others) alleging commission of offences under Sections 415, 418, 420, 120-B and 34 I.P.C., pending in the Court of Special Judicial Magistrate (CBI), Ghaziabad, P.S. Sihani Gate, District Ghaziabad.
The complaint was presented before the Special Judicial Magistrate (CBI), Ghaziabad. The two primary contentions which have been urged in support of the prayer for quashing are as under.
It is firstly averred that a plain reading of the complaint allegations establishes that the crimes are stated to have been committed in the United Arab Emirates and that therefore it was incumbent upon the respondents to obtain prior sanction as envisaged under Section 188 Cr.P.C. The second submission is that the Court at Ghaziabad clearly had no territorial jurisdiction since the applicant was neither a resident of that district nor was he found within the territorial jurisdiction of the Magistrate concerned. According to the learned counsel, no aspect of the cause-of-action arose within Ghaziabad so as to empower the concerned Magistrate to take cognizance of the proceedings instituted by the opposite party No. 2.
Insofar as the issue of consent under Section 188 Cr.P.C. is concerned, the Magistrate has taken note of the decision rendered by the Supreme Court in Ajay Agarwal Vs. Union of India and Others 1 to hold that the sanction as contemplated under that provision is not a condition precedent and in fact can be obtained at any time before the trial commences. This issue therefore stands ruled against the applicant in light of the decision in Ajay Agarwal .
Coming then to the submission of the learned counsel with regard to the lack of territorial jurisdiction, the Court notes the decision rendered by the Supreme Court in Om Hemrajani Vs. State of U.P. And Another 2, wherein the following pertinent observations with respect to the scope and ambit of Sections 177 and 188 Cr.P.C. were spelt out.
“13. The aforesaid decisions were referred to and relied upon in Emperor v. Vinayak Damodar Sarvarkar. The contention that the accused is charged before a Magistrate with an offence under the Penal Code and was brought there illegally from a foreign country was rejected. An illustration was given in that --a man commits a crime, say murder, in a country but he escapes to some other country before he is apprehended, the police finding him in some other country, brings him to England and produces him before a Magistrate. It would not be open to the Magistrate to refuse to commit him. The Court held that (ILR p. 229) "If he were brought here for trial, it would not be a plea to the jurisdiction of the Court that he had escaped from justice, and that by some illegal means he had been brought back".
14. The last decision on interpretation of Section 188 is of Justice Vivian Bose in Sahebrao Bajirao v.
1 1973 Cri LJ 1021 2 (2005) 1 SCC 617 Suryabhan Ziblaji. The question posed was as to who is to do the 'finding'. Learned Judge held that the word 'found' in Section 188 means found by the Court at the time when the matter comes up for trial, that is to say, any Court which is otherwise competent to try the offence can take seisin the moment the accused appears in its presence. How the accused gets there is immaterial. It does not matter whether he comes voluntarily or in answer to summons or under illegal arrest. It is enough that the Court should find him present when it comes to take up the matter.
15. In our opinion, the law has been correctly enunciated by in the aforesaid case. The scheme underlying Section 188 is to dispel any objection or plea of want of jurisdiction at the behest of a fugitive who has committed an offence in any other country. If such a person is found anywhere in India, the offence can be inquired into and tried by any Court that may be approached by the victim. The victim who has suffered at the hands of the accused on a foreign land can complain about the offence to a court, otherwise competent, which he may find convenient. The convenience is of the victim and not that of the accused. It is not the requirement of Section 188 that the victim shall state in the complaint as to which place the accused may be found. It is enough to allege the accused may be found in India. The Court where the complaint may be filed and the accused either appears voluntarily pursuant to issue of process or is brought before it involuntarily in execution of warrants, would be the competent Court within the meaning of Section 188 of the Code as that Court would find the accused before him when he appears. The finding has to be by the Court. It has neither to be by the complainant nor by the police. The section deems the offence to be committed within the jurisdiction of the Court where the accused may be found.”
From the relevant extracts of the decision referred to above, it is evident that it is not necessary for the complainant to establish that the accused was a resident of Ghaziabad. All that was incumbent upon the complainant was to establish that the accused had committed crimes outside India and was found in India. Once the test of the accused being found in India were satisfied, the Court where the complainant chooses to institute proceedings is liable to be viewed as the Court competent under Section 188 Cr.P.C.
Consequently, the Court finds no merit in the challenge raised in these proceedings. Accordingly, this Court finds no ground to quash the proceedings in exercise of its power under Section 482 Cr.P.C. All other contentions on merits including the right of the applicant to raise the issue of the requirement of sanction under Section 188 Cr.P.C. at an appropriate stage are left open.
The application stands disposed of accordingly.
Order Date :- 30.1.2019 Arun K. Singh ( Yashwant Varma, J.)