TMI Blog1999 (7) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... s 1 and 2 to conduct investigation to complete the same and to file the charge report before the concerned Magistrate Court on the basis of the complaint filed by the Petitioner, against Respondents 4 and 5 and also to arrest them and also to recover the amounts including the converted properties from Respondents 4 and 5 under the provisions of the Code of Criminal Procedure and also to make arrangements for giving the same to the Petitioner; and (d) to compel the first Respondent to consider and dispose of Ext. P-5 petition. 2. The facts, in brief, are as follows: The Appellant and Respondents 4 and 5 are related to each other. The Appellant was working as a Salesman at Damam in Saudi Arabia in a firm drawing attractive salary and other perks. The Appellant took the forth Respondent to Damam by arranging a free visa. During his stay in Damam, the fourth Respondent was living under the care and protection at the expense of the Appellant. The fourth Respondent was having access to all the personal belongings, of the Appellant. On 1st April L992, the Appellant found that the outer door of the flat, where he was residing, found open and that the lock of the table drawer was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first Respondent filed a counter affidavit stating that since the theft of Saudi Riyals by the fourth Respondent was outside the country, the department could not make any enquiry based on the complaint without any documentary evidence. However, it was stated that the first Respondent would be taking appropriate action as per law when credible and valuable informations regarding the violation of FERA are furnished. 6. The third Respondent, after explaining the steps taken, stated that he took charge only recently and yet to commence the enquiry and that the enquiry would be completed within a short time and if there is scope, he would register a case. 7. Respondents 4 and 5 filed separate counter affidavit stating that the petition is not maintainable either in law or on facts. As per Section 156 of the Code of Criminal Procedure, police has got statutory power for investigation only in respect of an offence which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. They denied of having committed theft of 95,000 Saudi Riyals kept by the Appellant. 8. The Original P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l mentioned in the proviso, the previous sanction of the Central Government is required, is an erroneous view, ignoring several vital provisions of the Code of Criminal Procedure. The learned Judge, without referring to the various provisions of the Code of Criminal Procedure, further observed that this decision does not have the effect of binding precedent and that it looked as if the learned Judges were more influenced by the law propounded by a learned Single Judge of this Court in Remla's case 1993 (1) K.L.T. 412 (supra) and they did not bother to examine the matter in proper perspective and in depth. 9. The observations made in para 16 of the judgment for not following the Division Bench decision are rather interesting. Para 16 reads thus: Considering the fact that this Division Bench decision dealt with the matter without referring to various other provisions of the Code of Criminal Procedure as pointed out supra, I am of the view that this decision does not have the effect of binding precedent; hence I steer clear of it. It looks as if the learned Judges were more influenced by the law propounded by a learned Single Judge of this Court in Remla v. S.P. 1993 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate on our part to refer to some of the provisions in the Code of Criminal Procedure and also the grounds raised by the Appellant in support of his contentions. 13. Section 4 of the Code of Criminal Procedure reads thus: 4. Trial of offences under the Indian Penal Code and other laws.- (1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offerees under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment of the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. A reading of the above section makes if clear that the Code contemplates two kinds of offences, one under the Indian Penal Code and the other under any other laws. Sub-section (1) of Section 4 provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained therein. The words 'otherwise dealt with&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate the ordinary rule that no foreign subject can be tried in India for an offence committed outside India. Section 181(4) applies only when the offences referred to therein are committed within India. It has no application to an offence committed outside India. 17. Section 188 is the relevant section with regard to the case in hand. It reads thus: 188. Offence committed outside India.-When an offence is committed outside India (a) by a citizen of India, whether on the high seas or elsewhere; or (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 with the previous sanction of the Central Government. Clause (a) of Section 188 makes it clear that, the section applies if the offence has been committed by a citizen of India outside India whether on the high seas or elsewhere. Clause (4) makes it clear that if the offence is committed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.I.R. 1973 S.C. 326 wherein it was observed thus: To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise. The learned Judge was, therefore, of the view that the failure can give rise only to civil liability and not to a criminal offence. The action of the Petitioner in the above circumstances cannot constitute an offence under Section 420 I.P.C. Since the acts done by the Petitioner if committed in India could not constitute an offence under the Penal Code, these acts carried out in a foreign country cannot constitute an offence for the Code to apply. In this view of the matter, the learned Judge quashed the proceedings initiated pursuant to Annexure A-1 . 20. The next decision in the series is the one cited supra Remla's case 1993 K.L.T. 412. The case was regarding the death of one Sulaiman. A complaint was filed by his mother, widow and brother before the Police stating that they suspect one Ali to have murdered Sulaiman on 21st June 1992 at Sharjah. The complaint w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person on whom the focus of suspicion turns is said to be a citizen of India 21. In the decision reported in Muhammed's case 1994 (1) K.L.T. 464 (supra), the question posed for consideration before the Division Bench was whether the Kerala Police can conduct investigation into offences committed abroad. The complaint was that the Petitioner, while working as Manager in the shop of the fifth Respondent in UAE, had diverted to his own accounts a sum of 7,82,737 Dhs., which is said to be about Rs. 90 lakhs. The fifth Respondent lodged a complaint with the All in Civil Court and by the time the court passed a prohibitory order preventing the Petitioner from leaving UAE, he escaped to India via Jordan. It was alleged that the money acquired by the above said misappropriation had been sent to India through various banks to his accounts and some money was allegedly smuggled into India through clandestine methods. These acts amounted to dishonest misappropriation, criminal breach of trust and cheating. The Petitioner contended that inasmuch as the offence took place in a foreign country, the Police in India had no power of investigation. But the Government Pleader contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curred With the view taken in Remla's 1993 (1) K.L.T. 412 (supra). 22. The decision reported in Muhammed Sajeed v. State of Kerala 1995 (1) K.L.T. 748 was rendered by K.P. Balanarayana Marar, J. That was a case of an offence committed outside India by an Indian citizen. Following the decisions in Remla's case 1993 (1) K.L.T. 412 and Muhammed's case 1994 (1) K.L.T. 464 (supra) and relying on the decisions in Ajay Aggarwal's case 1993 S.C.C. 961 and Ram Singh's case A.I.R. 1962 S.C. 63 (supra), the learned Judge dissented from the view taken by Jagannadha Raju, J. in the decision reported in 1995(1) K.L.T. 468. The learned Judge also relied on Shri Bhagwan v. Ram Chand A.I.R. 1965 S.C. 1767and few other decisions in the context of precedents and held that it is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er without referring to a binding precedent rendered by a Division Bench in Muhammed's case 1994 (1) K.L.T. 464 (supra), which, in turn, has approved Hie decision in Remla's case 1993 (1) K.L.T. 412 (supra,). The language employed by the learned Single Judge while considering the judgment of the Division Bench and also of the learned Single Judge is not proper. The remarks made by the learned Single Judge against the Hon'ble Judges are most uncharitable. If he entertains doubts about the correctness of the decisions, he ought to have, in all fairness, referred the matter to a larger Bench for an authoritative pronouncement, which was done by Pareed Pillay, C.J. and Shanmugam, J. in the order of reference. 26. A Full Bench of the Madras High Court, in the decision reported in Philip Jeyasingh v. Jt. Registrar of Co-op. Societies 1992 (1) L.W. 216 had dealt with the law of precedents. Sriaivasan, J. as he then was, speaking for the Full Bench, observed as follows: The law of precedents has been uniform throughout the country for ever a century. Occasional aberrations by Judges sitting singly or In Division Benches have not only been frowned upon, but condemned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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