Writ petition challenging public prosecution in an Emigration Act case without prior sanction. Court held extraordinary jurisdiction inappropriate to direct police to obtain sanction during pending trial. Case remitted for appropriate orders at disposal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
TUESDAY, THE 16TH DAY OF OCTOBER 2012/24TH ASWINA 1934
WP(C).No. 26649 of 2010 (Q)
PETITIONER : -
BENNY JOSEPH, AGED 50 YEARS, S/O.T.P.JOSEPH, RESIDING AT THETTAYIL HOUSE, RAIBOW CENTENARY ROAD, KALOOR, KOCHI-682 017.
BY ADVS.SRI.C.V.MANUVILSAN
SRI.P.G.SURESH SMT.K.VIDYA SRI.RAJAN VISHNURAJ SMT.V.RENUKA
RESPONDENTS : -
1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPT OF HOME AFFAIRS, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM.
2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM.
3. SUPERINTENDENT OF POLICE, KOTTAYAM.
4. THE DY.SUPERINTENDENT OF POLICE, KOTTAYAM.
5. THE CIRCLE INSPECTOR OF POLICE, ETTUMANUR, KOTTAYAM.
6. THE CIRCLE INSPECTOR OF POLICE, KOTTAYAM EAST POLICE STATION, KOTTAYAM.
7. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY MINISTRY OF OVERSEAS INDIAN AFFAIRS, NEW DELHI.
8. THE PRORTECTOR GENERAL OF IMMIGRANTS, GOVERNMENT OF INDIA, NEW DELHI - 110001.
WP(C).No. 26649 of 2010 (Q)
9. THE PROTECTOR OF IMMIGRANTS, GOVERNMENT OF INDIA, ERNAKULAM.
10. FRANCIS CHEMBOLA, CHEMBOLA AMERICAN CENTRE, CORPORATE OFFICE, MC ROAD, THELLAKOM, KARITHAS JN., KOTTAYAM, THELLAKOM P.O., PIN-686 016.
11. SAM GEORGE, MATOLIL HOUSE, PULLATTU KARA, KOZHANJERY VILLAGE, PATHANAMTHITTA, PRESENTLY RESIDING AT HOUSE NO.C 10, GALAXY FLAT, LFC ROAD, KALLOOR, KOCHI-17 P.O.KALOOR.
12. JOSEPH JOSEPH @ KOCHUMON, SARPPAKALATHIL VEETTIL, UPPOOTTIKAVALA, PUTHANGADI VILLAGE, KOTTAYAM-686 631, P.O.PUTHANGADI.
BY ADV. SHRI.K.A.MANZOOR ALI, CGC BY ADV. SRI. P. PARAMESWARAN NAIR CGSC BY ADV. SRI.KURIAN CHEMBOLA MATHAI BY ADV. SMT.AYSHA RAHMAN BY SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA BY GOVERNMENT PLEADER SRI. R. RANJITH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 26649 of 2010 (Q)
APPENDIX
PETITIONER'S EXHIBITS :
| EXT P1 : | TRUE PHOTOCOPY OF THE FIR IN Cr. NO.46/2006 OF THE KOTTAYAM EAST POLICE STATION. |
|---|---|
| EXT P2 : | TRUE PHOTOCOPY OF THE APPLICATION FILED UNDER THE RIGHT TO INFORMATION ACT SUBMITTED BEFORE THE INFORMATION OFFICER, Dy. SUPERINTENDENT OF POLICE, KOTTAYAM. |
| EXT P3 : | TRUE PHOTOCOPY OF THE REPLY RECEIVED UNDER RIGHT TO INFORMATION ACT FROM THE INFORMATION OFFICER, Dy. SUPERINTENDENT OF POLICE, KOTTAYAM. |
| EXT P4 : | TRUE PHOTOCOPY OF THE APPLICATION FILED UNDER THE RIGHT TO INFORMATION ACT SUBMITTED BEFORE THE INFORMATION OFFICER, PROTECTOR OF IMMIGRANT, COCHIN. |
| EXT P5 : | TRUE PHOTOCOPY OF THE REPLY RECEIVED UNDER RIGHT TO INFORMATION ACT FROM THE INFORMATION OFFICER, PROTECTOR OF IMMIGRANT, COCHIN. |
| EXT P6 : | TRUE PHOTOCOPY OF THE REPRESENTATION DATED 10.05.2010 PREFERRED TO THE HOME SECRETARY AND DIRECTOR GENERAL OF POLICE. |
RESPONDENTS' EXHIBITS :
| EXT R10(a) : | COPY OF THE DEPOSITION IN C.C. 522/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ETTUMANOOR. |
|---|---|
| EXT R10(b) : | COPY OF THE FIR NO.268/2004 REGISTERED BY THE ETTUMANOOR POLICE. |
| EXT R10(c) : | COPY OF THE ORDER OF PROTECTOR GENERAL TO SHOW THAT IMMIGRATION OF NURSES ARE NOT COMING UNDER THE CATEGORY OF EMPLOYMENT FOR RECRUITMENT LICENSE. |
// TRUE COPY //
P.A. TO JUDGE
DMR/-
S.S.SATHEESACHANDRAN,J.
W.P. (c) NO. 26649 of 2010
Dated this the 16th day of October, 2012
JUDGMENT
Petitioner is one among the complainants, who was later included as one among the charge witnesses (CW4) in a crime registered at Ettumanoor Police Station against respondents 10 to 12 for the offences punishable under Section 420 of the Indian Penal Code and Section 24(1) (a) (b) and (c) of the Emigration Act, 1983, for short the 'Act'. Cognizance of the offences taken on the report filed by the Police Officer who investigated the crime, the case is now pending, numbered as C.C. No.522 of 2006 on the file of the Judicial First Class Magistrate, Ettumanoor. The trial of that case is admittedly in progress. Petitioner (CW4) has also been examined as one among the witnesses during such trial. At that stage, it is the case of the petitioner, he realized that previous sanction as contemplated under Section 27 of the Act has not been obtained by the investigating agency from the
W.P. (c) NO. 26649 of 2010 2
competent authority to prosecute the accused persons for the offences imputed under the Act. Application was moved by him resorting to the provisions of the Right to Information Act and steps taken by him to get sanction from the concerned authorities, to have a prosecution of the accused for the offences under the Act. Then alone he realized that such sanction has to be applied and obtained only by the investigating officer. He has therefore filed the writ petition seeking the exercise of the extraordinary jurisdiction by this court to command the respondents 2 to 4 to obtain the required sanction from the competent authority under Section 27 of the Act to prosecute respondents 10 to 12 for the offences imputed against them under the Act.
W.P. (c) NO. 26649 of 2010
3
against that judgment, respondent No.10 preferred an appeal contending that he was not heard and no notice was given to
him before the writ petition was disposed with directions as aforesaid. Writ appeal was allowed by judgment dated 22.11.2010 and the case was remitted for fresh consideration and disposal.
W.P. (c) NO. 26649 of 2010
4
created by the section making it emphatically clear that no prosecution shall be instituted against any person in respect of
any offence covered by the Act without obtaining sanction from the Central Government. So much so, where cognizance of the offence taken, charges framed against respondents 10 to 12 for the offence under the Act and the trial is in progress, at this stage, no direction can be issued that too in exercise of the extraordinary jurisdiction of this court for continuation of such prosecution after obtaining sanction from the Central Government as mandated under Section 27 of the Act. I need not dwell on the consequences that may ensue with respect to the trial proceeded against the accused persons with respect to the offences imputed under the Act where cognizance of such offences could have been taken by the magistrate only if there was sanction from the Central Government to prosecute them. Since the accused persons are proceeded for an offence under the Penal Code as well, the trial, no doubt, can be continued to reach its logical conclusion. However, with respect to the offence imputed and
W.P. (c) NO. 26649 of 2010
5
charge framed against them under the provisions of Section 24 of the Act, as it has been done without obtaining previous
sanction, the magistrate has to pass appropriate orders at the time of disposal of the case.
Subject to the above observations, the writ petition
is dismissed.
S.S.SATHEESACHANDRAN JUDGE.
DMR /-
2 issues framed by the court
Whether the High Court can exercise extraordinary jurisdiction to direct police officers to apply for prosecution sanction under Section 27 of the Emigration Act, 1983 during pending trial.
Whether the trial can continue for offences under the Act when previous sanction by the Central Government was not obtained.
2 provisions across 2 enactments
Benny Joseph
State of Kerala
Director General of Police, Thiruvananthapuram
Superintendent of Police, Kottayam
Dy. Superintendent of Police, Kottayam
Circle Inspector of Police, Ettumanur, Kottayam
S.S. Satheesachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
