IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1610/2013 BETWEEN 1. SHAIK GHANI, S/O SHAIK ABDUL REHAMAN, AGE: 34 YEARS, 2. SMT. CHOTI BI, W/O SHAIK ABDUL REHAMAN, AGE: 52 YEARS, 3. SRI ABDUL REHAMAN, S/O SHAIK PATIL, AGE: 67 YEARS, 4. SMT. TAJ UNNISSA, W/O FAYAZ, AGED: 32 YEARS, 5. SRI FAYAZ, HUSBAND OF TAJ UNNISSA, AGED: 38 YEARS, ALL ARE R/AT THAKKA VILLAGE, PERIYA KOLLIYUR POST, SHANKARAPURA TALUK, VILLAPURA DISTRICT, TAMILNADU STATE-19 ... PETITIONERS (BY SRI S VISHWAJITH SHETTY, ADV.) AND 1. THE STATE BY STATION HOUSE OFFICER, MAHILA POLICE STATION, MYSORE, BY ITS S.P.P.
HIGH COURT OF KARNATAKA, BANGALORE-560001.
2. SMT. ZABIA, W/O SHAIK GANI, AGED: 23 YEARS, R/AT NO.265, 5TH CROSS, 2ND MAIN, SIDDIQUE NAGAR, MYSORE CITY, MYSORE-570019.
(BY SRI I.S.PRAMOD CHANDRA, SPP II FOR R1, R2 – SERVED AND UNREPRESENTED.) ... RESPONDENTS THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS OF CR.NO.88/11 FILED BY THE MAHILA POLICE, MYSORE, C.C.NO.131/12 PENDING BEFORE THE IV ADDL.SR.CIVIL JUDGE AND C.J.M., MYSORE FOR THE OFFENCES P/U/S 498A, 506 R/W 34 OF IPC AND 3 AND 4 OF D.P. ACT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard the learned counsel for the petitioners and learned SPP-II appearing for respondent No.1. Respondent No.2 is duly served and unrepresented.
2. Learned SPP-II has produced a report submitted by the Police Inspector, Women Police Station, Mysuru to the effect that when the notice of the present petition was tendered to respondent No.2, she refused to receive the said notice and informed that she would not appear before the High Court. The said report is placed on record.
3. Learned counsel for the petitioners submits that the impugned proceedings are violative of Section 188 of Cr.P.C inasmuch as the averments made in the complaint indicate that the alleged act of cruelty and harassment have taken place at Qatar where respondent No.2 was living with the petitioners, hence, the registration of the complaint and consequent investigation without prior sanction as required under Section 188 of Cr.P.C. has vitiated the entire proceedings.
4. In support of his argument, learned counsel for the petitioners has placed reliance on the decision of the Hon’ble Supreme Court in the case of Thota Venkateswarlu v. State of A.P. and Anr. reported in AIR 2011 SC 2900 at paragraph No.10 whereof it held as under:
“10. The language of Section 188, Cr.P.C. is quite clear that when an offence is committed outside India by a citizen of India, he may be dealt with in respect of such offences as if they had been committed in India. The proviso, however, indicates that such offences could be inquired into or tried only after having obtained the previous sanction of the Central Government. As mentioned hereinbefore, in Ajay Aggarwal's case (AIR 1993 SC 1637) (supra), it was held that sanction under Section 188, Cr.P.C. is not a condition precedent for taking cognizance of an offence and, if need be, it could be obtained before the trial begins. Even in his concurring judgment, R.M. Sahai, J., observed as follows :
"29. Language of the section is plain and simple. It operates where an offence is committed by a citizen of India outside the country. Requirements are, therefore, one - commission of an offence; second - by an Indian citizen; and third - that it should have been committed outside the country."
Although the decision in Ajay Aggarwal's case (AIR 1993 sc 1637) (supra) was rendered in the background of a conspiracy alleged to have been hatched by the accused, the ratio of the decision is confined to what has been observed hereinabove in the interpretation of Section 188, Cr.P.C. The proviso to Section 188, which has been extracted hereinbefore, is a fetter on the powers of the investigating authority to inquire into or try any offence mentioned in the earlier part of the Section, except with the previous sanction of the Central Government. The fetters, however, are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of Section 188 is required till commencement of the trial. It is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central Government would be required before the trial could commence.”
5. According to the complainant, the entire incident has taken place at Qatar. The averments in this regard find place in page No.3 of the complaint which reads as under:
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6. In the light of the above factual aspects and in view of the proposition of law enunciated above, the proceedings initiated against the petitioners are liable to be quashed.
Accordingly, the petition is allowed. The proceedings pending in C.C.No.131/2012 on the file of the IV Additional Senior Civil Judge and C.J.M, Mysore are quashed. Liberty is reserved to the prosecution to proceed against the petitioners after obtaining sanction as required under Section 188 of Cr.P.C.
In view of the above order, interim order passed by this Court on 08.12.2017 is modified and the Passport Authority is directed to renew the passport on such terms as permissible under the passport Act.
I.A.No.2/2017 does not survive for consideration. The same is disposed of.
Sd/- JUDGE VM CT-HR