Chattisgarh High Court
Vijay Barman vs State Of Chhattisgarh on 20 December, 2024
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
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2024:CGHC:50319
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Reserved on 20-09-2024
Pronounced on 20-12-2024
CRR No. 964 of 2018
1 - Vijay Barman S/o Dujeram Barman Aged About 38 Years R/o- Parsada, P.S.-
Hasoud, District- Janjgir-Champa, Chhattisgarh., District : Janjgir-Champa,
Chhattisgarh
... Applicant
versus
1 - State Of Chhattisgarh Through- S.H.O. P.S.- Hasoud, District- Janjgir-
Champa, Chhattisgarh., District : Janjgir-Champa, Chhattisgarh
2 - Vikas Sonwani S/o Firatram Aged About 29 Years R/o- Village- Pirda, P.S.-
Malkharoda, District- Janjgir-Champa, Chhattisgarh., District : Janjgir-Champa,
Chhattisgarh
3 - Sandeep Bhai Karathiyan S/o Pravin Bai Aged About 34 Years R/o- 405
Vrindavan Enclave, Narayanpura, P.S. Narayanpura, Ahmadabad, District-
Ahmadabad (Gujrat), District : Ahmadabad, Gujarat
---- Non-applicants
For Applicant : Shri Akhtar Hussain, Advocate
For State : Shri Jitendra Shrivastava, Govt. Advocate
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. ORDER
1. The present Criminal Revision under Section 397 of the Cr.P.C has
KISHORE
KUMAR
DESHMUKH
been filed by the applicant assailing the order dated 09.08.2018
Digitally signed by
KISHORE KUMAR
DESHMUKH passed by the learned 1st Additional Sessions Judge, Sakti, Dist -
Date: 2024.12.20
16:00:57 +0530
Janjgir-Champa in S.T. No. 183/2015 by which learned trial Court
has rejected the application filed by the applicant under Section 188,
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189 of the Cr.P.C. to discharge him for non compliance of the
sanction from the Central Government before prosecuting him.
2. Brief facts as projected in the present case are that on 20.07.2015
on the basis of the direction of the Collector District Janjgir Champa
(C.G.) and also on the basis of the complaint of villagers the Police
registered FIR against the applicant for the alleged offence
punishable u/s 370(3) of IPC (offence involving the trafficking of 22
persons to Malaysia) and started investigation in the matter. During
the course of the investigation statement of the witnesses and
memorandum of the accused were recorded and after completion of
the investigation police filed charge-sheet for commission of offence
under Section 370(3) of the IPC against the applicant in connection
with Crime No. 107/2015. After filling of Charge-sheet the learned
Trial Court has fixed the case for framing of the charge and vide it's
order dated 07.12.2016 the learned trial Court has framed the charge
against the applicant as well as against the other accused persons
for the commission of offence punishable under section 370 (3), 34
of Indian Penal Code. After framing of charge, the learned trial Court
has prepared the trial Programme by its order dated 13.12.2016 and
fixed the case for recording of statement of the witnesses on
17.1.2017 and as of now today 30 witnesses have been examined.
3. During the course of trial, on 04.08.2018, the applicant/accused
moved an application under Section 188, 189 of Code of Criminal
Procedure contending that the offence alleged to have been
committed outside of India therefore, a trial without prior permission
from the Central Government cannot be initiated, as such, the entire
proceeding is without jurisdiction and non-est and the accused is
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liable to be acquitted from the charges
4. Learned Trial Court after hearing the counsel on application filed
under section 188, 189 of code of Criminal Procedure has rejected
the same by its order dated 09.08.2018. Being aggrieved with this
order, the applicant has preferred present criminal revision.
5. This Court vide order dated 29.04.2019 has stayed further
proceeding of the trial Court till the decision of this criminal revision.
6. Learned counsel for the applicant would submit that the whole
investigation seems to be malicious in nature, as it is settled law that
if any enquiry is made which relates to any crime committed outside
of India, prior sanction from Central Government is very much
required by prosecution. He would further submit that while passing
the impugned order dated 09.8.2018, the learned trial Court has
failed to see that sanction of the Central Government is very much
required before initiation of prosecution therefore, entire trial is
without jurisdiction and on this count alone the entire charge-sheet
and criminal trial deserve to be quashed.
7. He would further submit that the Labour Inspector of Labour
Department has also lodged criminal case for violation of the Inter-
State Migrant Workmen (Regulation and Condition of Service) Act,
1979 before the learned Labour Court Judicial Magistrate First Class,
Janjgir-Champa which is registered as Criminal Case No. 354/2016
and the learned Magistrate-cum-Labour Court has dismissed the
complaint. Therefore, the accused cannot be charged twice for one
offence which is violative of Article 20(2) of the Constitution and
Section 300 of the Cr.P.C. Thus, he would pray for quashing of entire
trial pending before the Trial Court.
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8. Per contra, opposing the submission learned counsel for the State
would submit that since the workers have been migrated from Janjgir
Champa and have been sent to Malaysia, as such, some part of
action has been done in India therefore, no sanction is required from
the central Government and would submit that initiation of criminal
proceedings are in conformity with law and would pray for dismissal
of the complaint.
9. I have heard learned counsel for the parties and gone through the
order and documents placed before this Court.
10. The applicant was charged for emigrating the labours from Janjgir-
Champat to Malaysia therefore, the learned Second Additional
Sessions Judge, Shakti has framed charges under Section 370(3) of
the IPC read with Section 34. The Sessions Judge has framed
following charges against the applicant :-
vkius ?kVuk fnukad 20@07@2015 ds djhc 1 o"kZ iwoZ ?kVuk LFky xzke
ijlnk ,oa vklikl ds {ks«k Fkkuk & glkSn] ftyk tkatxhj pkaik {kss«kkaxZr vU;
vfHk;qDrx.k fodkl lksuokuh] lanhi djfFk;k ds lkFk feydj lkekU; vk'k; fufeZr
dj lkekU; vk'k; ds vxzlj.k esa xzke ijlnk ds v?kuckbZ] HkwjhckbZ] iwtk ceZu ,oa
xzkeh.k rFkk vklikl ds {kss«k ds yksx lfgr dqy 22 etnwjks dks vyx fd'rkas esa xzke
iapk;r iyk;u jftLVj uke ntZ djk;s fcuk o Je vf/kdkjh dks lwpuk fn;s cxSj
eysf'k;k QSDVzh es dke djus gsrq T;knk etnwjh fnykus] fpfdRlk lqfo/kk ,oa vU;
lqfo/kk fnykus dk izopuk dj ,oa izyksHku nsdj diViwoZd ;wjksIykfLVd QSSDVzh ds lqHkax
tykus mVjkbZV ;w,l@, dqokykyEiqj eysf'k;k ys x;s] dksbZ lqfo/kk miYkC/k ugh
djk;k x;k vkSj muds }kjk ogk dke ugh djuk pkgus ij mudks ca/kdj cukdj
izrkfM+r dj ekuo nqO;kZikj dkfjr fd;kA
bl izdkj vkius ,slk vkikjf/kd d`R; fd;k tks Hkkjrh; naM lafgrk 1860
dh /kkjk & 370 ¼3½ lgifBr /kkjk 34 ds varxZr naMuh; gS ,oa bl U;k;ky; ds laKku
ds {kss«kkaxZr gSA
11.From the charges it is quite vivid that the applicant is allegedly
involved in trafficking of 22 labours from Janjgir Champa to Malaysia
which clearly suggests that part of offence was committed on the soil
of India. As such, going by the normal principles the offence could be
looked into and tried by the Indian Courts. Since the offence was not
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committed in entirety outside of India as such, there was no
necessity of any sanction as mandated by proviso to Section 188 of
the Cr.P.C. provides. The necessity of sanction under Section 188
has come up for consideration before the Hon'ble Supreme Court in
case of Sartaj Khan vs. State of Uttarakhand {(2022) 13 SCC 136}
wherein Hon'ble Supreme Court has held as under :
"12. Section 188 of the Code is to the following effect:
"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."
13. In terms of Section 188, even if an offence is committed
outside India, (a) by a citizen whether on the high seas or
anywhere else or (b) by a non-citizen on a ship or aircraft
registered in India, the offence can still be tried in India
provided the conditions mentioned in said Section are
satisfied. The Section gets attracted when the entirety of the
offence is committed outside India; and the grant of sanction
would enable such offence to be enquired into or tried in India.
14. As the facts and circumstances of the case indicate, a part
of the offence was definitely committed on the soil of this
country and as such going by the normal principles the offence
could be looked into and tried by Indian courts. Since the
offence was not committed in its entirety, outside India, the
matter would not come within the scope of Section 188 of the
Code and there was no necessity of any sanction as mandated
by the proviso to Section 188. We, therefore, reject the first
submission advanced by Mr. Sharma."
12.From the above stated legal position and from the charge sheet, the
material collected by the prosecution, prima facie, it is quite vivid that
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the part of the offence was committed at Janjgir-Champa which is
soil of India. As such, the finding recorded by the learned Second
Sessions Judge that all the offence has not been committed at
Malaysia but it has been committed at Kolkata, Mumbai and Janjgir-
Champa cannot be found faulty. Therefore, the submission made by
the learned counsel for the applicant that the offence alleged to have
been committed at Malaysia, therefore, sanction from Central
Government is necessary, has rightly been rejected by the learned
trial Court which does not warrant interference by this Court.
13.Now, further submission of the learned counsel for the applicant that
he has already been acquitted from charges under the Inter- State
Migrant Workmen (Regulation and Condition of Service) Act, 1979,
therefore, for the same set of charges the continuation of criminal
proceeding by the learned trial Court is nothing but is a double
jeopardy, as per Section 300 of the Cr.P.C. and violation of Article
20(2) of the Constitution of India is being considered.
14. To appreciate this point it is expedient for this Court to extract
relevant provisions of law which are as below :-
Section 300 of the Cr.P.C. - Person once convicted or
acquitted not to be tried for same offence -
1. A person who has once been tried by a Court of competent
jurisdiction for an offence and convicted or acquitted of such
offence shall, while such conviction or acquittal remains in
force, not be liable to be tried again for the same offence, nor
on the same facts for any other offence for which a different
charge from the one made against him might have been made
under Sub-Section (1) of section 221, or for which he might
have been convicted under Sub-Section (2) thereof.
2. A person acquitted or convicted of any offence may be
afterwards tried, with the consent of the State Government for
any distinct offence for which a separate charge might have
been made against him at the former trial under Sub-Section
(1) of section 220.
3. A person convicted of any offence constituted by any act
causing consequences which, together with such act,
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constituted a different offence from that of which he was
convicted, may be afterwards tried for such last-mentioned
offence, if the consequences had not happened or were not
known to the Court to have happened, at the time when he
was convicted.
4.. A person acquitted or convicted of any offence constituted
by any acts may, notwithstanding such acquittal or conviction
be subsequently charged with, and tried for, any other offence
constituted by the same acts which he may have committed if
the Court by which he was first tried was not competent to try
the offence with which he is subsequently charged.
5. A person discharged under section 258 shall not be tried
again for the same offence except with the consent of the
Court by which he was discharged or of any other Court to
which the first-mentioned Court is subordinate.
6.. Nothing in this section shall affect the provisions of section
26 of the General Clauses Act, 1897 (10 of 1897) or of section
188 of this Code.
Section 370 of the IPC : Trafficking of persons
Whoever, for the purpose of exploitation, (a) recruits, (b)
transports, ( c) harbours, (d) transfers, or (e) receives, a person
or persons, by--
1. using threats, or
2. using force, or any other form of coercion, or
3. by abduction, or
4. by practising fraud, or deception, or
5. by abuse of power, or
6. by inducement, including the giving or receiving of payments
or benefits, in order to achieve the consent of any person
having control over the person recruited, transported,
harboured, transferred or received,
commits the offence of trafficking.
Article 20(2) of the Constitution of India
Article 20(2) - No person shall be prosecuted and punished for
the same offence more than once.
Section 26 General Clauses Act -
26. Provision as to offences punishable under two or more
enactments - Where an act or omission constitutes an offence under
two or more enactments, then the offender shall be liable to be
prosecuted and punished under either or any of those enactments,
but shall not be liable to be punished twice for the same offence.
15. From the provisions of the Inter-State Migrant Workmen (Regulation
and Condition of Service) Act, it is quite vivid that there is no
provision regarding cognizance of offence for trafficking of persons
8
as this Act has been enacted by the Parliament to regulate the
employment of inter-state migrant workmen and to provide for their
condition of service and for matters connected therewith such as
recruitment, wages, etc. . Thus, it cannot be said that an act or an
omission can constitute an offence under the IPC and at the same
time, be an offence under Act of 1979. It is pertinent to mention here
that as per Section 26 of the General Clauses Act, there is no bar to
the trial or conviction of the offender under both the enactments but
there is only a bar to the punishment of the offence twice for the
same offence. This issue has come up for consideration before
Hon'ble Supreme Court in case of State of Arunachal Pradesh vs.
Ramchandra Rabidas @ Ratan Rabidas and Anr {(2019) 10 SCC
75} wherein Hon'ble Supreme Court has held as under :-
9. It is well settled that an act or an omission can constitute an
offence under the IPC and at the same time, be an offence
under any other law. The finding of the High Court that the
prosecution of offenders under two statutes i.e. the M.V. Act
and the IPC, is unsustainable and contrary to law, is therefore,
set aside.
10. A similar issue arose in the case of T.S. Baliah v. T.S.
Rangachari , wherein the appellant was prosecuted both under
Section 177 of the IPC, and Section 52 of the Income Tax Act,
1922. This Court held as follows:
"6. We proceed to consider the next question
arising in this case viz. whether the appellant can
be prosecuted both under Section 177 of the Indian
Penal Code and Section 52 of the 1922 Act [Income
Tax Act, 1922] at the same time. It was argued on
behalf of the appellant that in view of the provisions
of Section 26 of the General clauses Act (Act 10 of
1897) the appellant can be prosecuted either under
Section 52 of the 1922 Act or under Section 177 of
the Indian Penal Code and not 10. under both the
sections at the same time. We are unable to accept
this argument as correct. Section 26 of the General
clauses Act states:
"26. Provision as to offences punishable
under two or more enactments.-- Where an
act or omission constitutes an offence under
two or more enactments, then the offender
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shall be liable to be prosecuted and punished
under either or any of those enactments, but
shall not be liable to be punished twice for the
same offence."
A plain reading of the section shows that there is no
bar to the trial or conviction of the offender under
both enactments but there is only a bar to the
punishment of the offender twice for the same
offence. In other words, the section provides that
where an act or omission constitutes an offence
under two enactments, the offender may be
prosecuted and punished under either or both the
enactments but shall not be liable to be punished
twice for the same offence. We accordingly reject
the argument of the appellant on this aspect of the
case." [emphasis supplied]
11. Similarly, in State of Maharashtra v. Sayyed Hassan,
the accused was prosecuted under Sections 26 and 30 of
the Food and Safety Standards Act, 2006 as well as
Sections 188, 272, 273 and 328 of the IPC for
transportation and sale of prohibited gutka/pan masala.
The High Court held that Section 55 of the Food and
Safety Standards Act, 2006 being a specific provision
made in a special enactment, Section 188 of the IPC was
inapplicable. The Supreme Court remanded the matter to
the High Court, and held that :
"8. There is no bar to a trial or conviction of an
offender under two different enactments, but the bar
is only to the punishment of the offender twice for
the offence. Where an act or an omission
constitutes an offence under two enactments, the
offender may be prosecuted and punished under
either or both enactments but shall not be liable to
be punished twice for the same offence. The same
set of facts, in conceivable cases, can constitute
offences under two different laws. An act or an
omission can amount to and constitute an offence
under the IPC and at the same time, an offence
under any other law. The High Court ought to have
taken note of Section 26 of the General Clauses
Act, 1897 which reads as follows:
"Provisions as to offences punishable under
two or more enactments -Where an act or
omission constitutes an offence under two or
more enactments, then the offender shall be
liable to be prosecuted and punished under
either or any of those enactments, but shall
not be liable to be punished twice for the
same offence."
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9. In Hat Singh's case this Court discussed
the doctrine of double jeopardy and Section
26 of the General Clauses Act to observe that
prosecution under two different Acts is
permissible if the ingredients of the provisions
are satisfied on the same facts. While
considering a dispute about the prosecution
of the Respondent therein for offences under
the Mines and Minerals (Development and
Regulation) Act 1957 and Indian Penal Code,
this Court in State (NCT of Delhi) v. Sanjay
held that there is no bar in prosecuting
persons under the Penal Code where the
offences committed by persons are penal and
cognizable offences. A perusal of the
provisions of the FSS Act would make it clear
that there is no bar for prosecution under the
IPC merely because the provisions in the
FSS Act prescribe penalties. We, therefore,
set aside the finding of the High Court on the
first point.” [emphasis supplied]
12. The legislative intent of the MV Act, and in particular
Chapter XIII of the MV Act, was not to override or
supersede the provisions of the IPC in so far as
convictions of offenders in motor vehicle accidents are
concerned. Offences under Chapter XIII of the MV Act,
cannot abrogate the applicability of the provisions under
Sections 297, 304, 304A, 337 and 338 of the IPC. The
offences do not overlap, and therefore, the maxim of
“generalia specialibus nonderogant” is inapplicable, and
could not have been invoked. The offences prescribed
under the IPC are independent of the offences
prescribed under the M.V. Act. It cannot be said that
prosecution of road traffic/motor vehicle offenders under
the IPC would offend Section 5 of the IPC, as held by
the High Court, in so far as punishment for offences
under the M.V. Act is concerned.
17. We thus hold that a prosecution, if otherwise
maintainable, would lie both under the IPC and the MV
Act, since both the statutes operate with full vigour, in
their own independent spheres. Even assuming that
some of the provisions of the MV Act and IPC are
overlapping, it cannot be said that the offences under
both the statutes are incompatible.
16.From the above stated factual and legal position and considering the
provisions of Article 20(2) of the Constitution of India and Section
300 of the Cr.P.C., it is quite vivid that the bar contained in the
Constitution as well as the Cr.P.C. is not applicable in the case of the
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applicant as the applicant has been charged for two different
offences under the different Acts. Before the learned Sessions Judge
he was charged for trafficking of persons as per the Section 370 and
before the Labour Court he was charged for Act of 1979 which does
not deal with human trafficking which clearly suggests that both the
offences are different and they are triable under different
Enactments.
17.From perusal of above stated factual and legal position, it is quite
vivid that the proceedings initiated against the applicant before the
Second Additional Sessions Judge was relating to human trafficking
and under the Act of 1979 it relates to service condition of migrant
workers. Both the provisions work in different sphere, as such the
impugned order dated 09.02.2018 is not laiable to be quashed,
therefore, the present Criminal Revision deserves to be dismissed
and accordingly it is dismissed.
18.The interim order passed by this Court on 29.04.2019 is vacated.
19.Accordingly, the Criminal Revision is dismissed.
Sd/-
(Narendra Kumar Vyas)
Judge
Deshmukh