Full Judgment
S.R.K. Prasad, J.
1.The petitioner invokes the inherent powers of this Court Under Section 482, Cr. P.C. to quash the proceedings in C.C. No. 458/2000 on the file of IInd Addl. Judicial First Class Magistrate, Nellore.
2. A brief resume of background of facts is necessary.
It is alleged that a paper publication is said to have been made by the petitioner herein in Eenadu daily Telugu Newspaper (Nellore Edition) at page No. 11 on 11-6-2000 under a caption 'MINISTRY QF HEALTH HOSPITALS URGENTLY REQUIRES FOR SAUDI.' The said publication was made on behalf of A1-pasha International, Hyderabad. In the advertisement, it is mentioned that they need Doctors, Nurses and Technicians to Saudi Aribia. Thereupon, the Superintendent of Police, Nellore. In his letter vide C. No. 1272/SB-XI-NBR/97 dated 11-6-2000 instructed the Inspector of Police, Law and Order, Nellore, to verify the records of D. V. Association and to initiate criminal action against the concerned. The Inspector of Police, Nellore, verified the paper clippings in Eenadu daily, Nellore supplementary edition, dt. 11-6-2000 and found the advertisement at page No. 11. He went to the office of D. V. Association, ABM compound, at 16.00 hours and found the accused in the office. When he asked the accused to show the original records i.e., registration documents, if any, the accused was unable to, produce the same. Thereupon, the Inspector of Police, investigated the case and laid the charge-sheet before the learned Magistrate. The learned Magistrate took the case on file and registered the same as C.C. No. 458 of 2000 for the offence Under Section 24(1)(2) and Clause (g) of Emigration Act of 1983.
3. The learned counsel for the petitioner assails the impugned proceedings of the learned Magistrate stating that sanction is required Under Section 27 of the Act to file a complaint against the petitioner. He further contends that as there is no sanction obtained before filing the complaint against the petitioner, the complaint is liable to be quashed. The learned Public Prosecutor contends that it is not a fit case to exercise inherent powers of this Court Under Section 482, Cr. P.C. at this stage and the petition is liable to be dismissed.
3A. Adverting to the said contentions, Section 24 of the Emigration Act, 1983 reads as follows :
24. Offences and penalties 1) Whoever--
a) except in conformity with the provisions of this Act emigrates; or
b) contravenes the provisions of Section 10; or Section 16; or
c) by intentionally furnishing any false information or suppressing any material information obtains a certificate or a permit or an emigration clearance under this Act;
d) Without lawful authority makes or causes to be made any alternation in any certificate or permit or in any document or endorsement by way of emigration clearance issued or made under this Act; or
e) disobeys or neglects to comply with any order of the protector of emigrants under this Act; or
f) collects from an emigrant any charges in excess of the limits prescribed under this Act; or
g) cheats any emigrant;
Shall be punishable with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees :
Provided that in the absence of any special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees.
(2) Whoever attempts to commit any offence under Sub-section (1) shall be punishable with the punishment provided for such offence under that sub-section.
(3) to (5) ........................
Section 24(1)(b) is the relevant provision wherein it is mentioned whoever contravenes the provisions of Section 10 or Section 16 are liable for the offence. Sections 10 and 16 of the Act read as follows :
10. No person to function as recruiting agent without a valid certificate.-- Save as otherwise provided in this Act, no recruiting agent shall, after the commencement of this Act, commence or carry on the business of recruitment except under and in accordance with a certificate issued in that behalf by the registering authority :
Provided that a person carrying on the business of recruiting agent immediately before the commencement of this Act may continue to carry on such business without such a certificate for a period of one month from such commencement, and if he has made an application for such certificate under this Act, within the said period of one month and such application is in the prescribed form and contains the prescribed particulars, till the disposal of such application by the registering authority.
16. Recruitment by employers to be through recruiting agent or under permit:--Save as otherwise provided by or under this Act, no employer shall recruit any citizen of India for employment in any country or place outside India except :--
(a) though a recruiting agent competent under this Act to make such recruitment, or
(b) in accordance with a valid permit issued in this behalf under this Chapter.
It is to be seen whether sanction is necessary before filing a complaint against a person under the provisions of Emigration Act. Section 27 of the Act reads thus :
27. Previous sanction of Central Government necessary.-- No prosecution shall be instituted against any person in respect of any offence under this Act without the previous sanction of the Central Government or such officer or authority as may be authorised by that Government by order in writing in this behalf.
Provided that no sanction shall be required when an offence has been committed in respect of an emigrant or an intending emigrant and the complaint is filed by such emigrant or intending emigrant, or on behalf of such emigrant or intending emigrant, by the father, mother, husband, wife, son, daughter, brother, sister or guardian of such emigrant or intending emigrant, or if such emigrant or intending emigrant is a member of a joint Hindu family, by the manager of that family.
4. A close scrutiny of Section 27 of the Act shows that no prosecution can be instituted against any person in respect of any offence, unless previous sanction of the Central Government or such officer or authority as may be authorised by that Government by order in writing in this behalf is obtained. The complaint is silent about obtaining sanction. Proviso provides exception. Sanction is not required if complaint is given by an emigrant or an intending emigrant or his relatives. Section 27 is mandatory and sanction is required before filing a complaint against any person since the complaint is not given by the migrant or an intending emigrant or his relatives mentioned under the section. The present complaint is filed without obtaining any sanction as required Under Section 27 of the Act. Hence the complaint filed against the petitioner is bad and the same is liable to be quashed.
Before concluding I state that it is an unfortunate situation where the petitioner has to be let of from the clutches of law for want of sanction. Had the Investigating Officer was careful enough to look into the provisions before filing the charge-sheet, the grave mistake would not have occurred, I hope and trust that the Investigating Agency will give necessary instructions to all the Investigating Officers to follow scrupulously Section 27 of Emigration Act, 1983 and obtain sanction before registering a complaint suo motu or on the instructions of superiors in the absence of complaint from emigrant or intending emigrant or his relatives etc.
5. In the result, this criminal petition is allowed accordingly with the above observations. The impugned proceedings initiated against the petitioner in C.C. No. 458/2000 are quashed.