IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 Crl.MC.No. 719 of 2010(F) ------------------------------------ [CC.NO.83/2009 OF CHIEF JUDL.MAGISTRATE COURT, ERNAKULAM] .................... PETITIONER/ACCUSED: ---------------------------------- ANWAR HUSSAIN, S/O. JAMALUDEEN RAWTHER, AGED 42 YEARS, FARHAN MANZIL, KURUMPALA VILLAGE, ADOOR TALUK, PANDALAM, PATHANAMTHITTA DISTRICT. BY ADV. MR.C.B.SREEKUMAR. RESPONDENTS/STATE & DEFACTO COMPLAINANT: --------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE S.I. OF POLICE, CENTRAL POLICE STATION, ERNAKULAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SYAMKUMAR. S., S/O. REGHUNANDAN, DAIVA KRIPA, ALTHARAMOODU P.O., ALAMCODE VIA, DARSANARVATTOM, THIRUVANANTHAPURAM DISTRICT. R1 BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR, R2 BY ADV. MR.T.A.SREE KUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.719 OF 2010 ------------------------------------------ Dated 22nd March 2010 O R D E R Petitioner is the accused and second respondent, the de facto complainant in C.C.83/2009 on the file of Chief Judicial Magistrate, Ernakulam taken cognizance for the offence under Section 420 of Indian Penal Code and Sections 10 and 16 read with Section 24 of Emigration Act. Prosecution case is that with the dishonest intention of cheating, making second respondent believe that he will be given employment in ALJA ZERA Group of Companies as a mechanic with computer knowledge, on 31/10/2008 petitioner received Rs.1,00,000/- from second respondent and misappropriated the same Crmc 719/10 2 without giving him the promised employment and thereby committed the offences. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken contending that entire dispute with the second respondent were settled amicably and on the facts offences alleged under Emigration Act is not attracted and therefore, it is not in the interest of justice to continue the prosecution. 2. Second respondent appeared through a counsel and submitted that entire dispute with the petitioner was settled amicably. 3. Learned counsel appearing for the petitioner, second respondent and learned Public Prosecutor were heard. 4. An offence under Section 420 of Indian Penal Code is compoundable as provided under Section 320 of Code of Criminal Procedure. When the offence is compoundable, it Crmc 719/10 3 is not for this court to exercise the extra ordinary jurisdiction under Section 482 of Code of Criminal Procedure to quash it and it is upto the parties to approach the learned Magistrate to grant permission, as provided under Sub Section 2 of Section 320 of Code of Criminal Procedure, to compound the offence. 5. Learned counsel appearing for the petitioner submitted that it is in view of the offence alleged under Emigration Act, which is not compoundable, petition is filed. Learned counsel submitted that none of those offences are attracted. Petitioner has produced Annexure-1 copy of certificate issued by Government of India to the wife of the petitioner as proprietor of Arabian Trade Links, to function as a recruiting agent. Prosecution has no case that petitioner is a recruiting agent. Section 10 of Emigration Act, Crmc 719/10 4 1983 provides that save as otherwise provided under the Act no recruiting agent shall, after the commencement of the 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. Recruiting agent is defined under Section 2(l) means a person engaged in India in the business of recruitment for an employer and representing such employer with respect to any matter in relation to such recruitment including dealings with persons so recruited or desiring to be so recruited. Recruitment is defined under clause (m) of Section 2 as inclusive of issuing of any advertisement to secure or assist in securing any employment in any country or place outside India and the entering into any correspondence, negotiation, agreement or arrangement with any individual Crmc 719/10 5 for or in relation to the employment of such individual in any country or place outside India. When prosecution has no case that petitioner was engaged in India in the business of recruitment for any employer and representing such employer, with any matter in relation to such recruitment including dealings with persons so recruited or desiring to be so recruited, an offence under Section 10 of the Act has no application. Section 17 of Emigration Act provides that save as otherwise provided by or under the Act, no employer shall recruit any citizen of India for employment in any country or place outside India except through a recruiting agent competent under the Act to make such recruitment or in accordance with a valid permit issued in this behalf under Chapter IV. Section 16 is attracted only if an employer recruits any citizen of India for Crmc 719/10 6 employment in any country or place outside India, except as provided under (a) and (b). Prosecution has no case that petitioner is employer who recruited any citizen of India for employment in any country outside India. Therefore, Section 16 is also not attracted. 6. Section 24 provides penalty. Under Sub Section (1) whoever except in conformity with the provisions of the Act emigrates or contravenes the provisions of Section 10 or Section 16 or by intentionally furnishing any false information or suppressing any material information obtains a certificate or a permit or an emigration clearance under the Act would be guilty of that offence. Evidently, offence under Section 24 is alleged based on the alleged violation of Sections 10 and 16. When Sections 10 and 16 are not attracted, prosecution of the petitioner for the offence Crmc 719/10 7 under Section 24 of Emigration Act is unsustainable. It is only an abuse of process of the court. Petition is allowed in part. Cognizance of the offences under Sections 10 and 16 read with Section 24 of Emigration Act, taken on Annexure-2 final report in C.C.83/2009 by Chief Judicial Magistrate, Ernakulam is quashed. Petitioner and second respondent are at liberty to approach the learned Magistrate for leave under Sub Section 2 of Section 320 to compound the offence under Section 420 of Indian Penal Code. M.SASIDHARAN NAMBIAR, JUDGE. uj.