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Judgment
Rajasekhar Mantha, J
The revisionist is a company based in Singapore having an office at Calcutta. The revisionist is primarily engaged in the sale distribution and trade in timber and timber products.
For the aforesaid purpose, the revisionist had engaged opposite parties, as the country In-Charge Head and Director in the State of Ghana in Africa.
A complaint was filed initially with the police in the State of Ghana on October 30, 2018 that the said opposite parties had made away and/or converted a sum of Rupees Five Hundred Million, Ghana currency. Based on the same, the police authorities at Ghana applied for a restraint order against one of the accused Brijesh Kumar Pandey from escaping away from the State of Ghana. The same is pending before the courts of jurisdiction thereat.
The revisionist thereafter applied before the Ministry of Home Affairs seeking sanction under Section 188 of the Cr. P.C. for taking steps and initiating proceedings against the opposite party Manoj Kumar Pandey and Brijesh Kumar Pandey in India. In reply, the Ministry of Home Affairs has permitted the revisionist to first initiate proceedings and obtain an investigation report to enable the Ministry of Home Affairs to issue sanction as prayed for.
Based on such direction, a complaint was filed before the Officer-in-Charge, Shibpur Police Station on September 16, 2019 of criminal misappropriation of funds, criminal breach of trust, cheating and falsification of accounts amounting to Rs. 80,06,378/- against the opposite parties. On failure of the Shibpur Police Station to investigate the matter, a complaint was thereafter lodged with the Commissionerate of Police of Howrah and thereafter an application under Section 156(3) of Cr. P.C. was filed before the learned Chief Judicial Magistrate, Howrah for a direction upon the Officer-in-Charge, Shibpur Police Station to cause investigation and take suitable steps in respect of the complaint lodged.
On such complaint, the learned Chief Judicial Magistrate, Howrah has refused to exercise jurisdiction under Section 156(3) of Cr. P.C., on a two-fold ground.
The first ground was that proceedings were already initiated against the revisionist in the State of Ghana. Secondly, that there was no evidence to show that the opposite party no. 2 was, in fact, available at Howrah.
This Court is of the view that, as to whether the opposite party no. 2 is available within the jurisdiction of the learned Chief Judicial Magistrate, Howrah, is a matter of investigation and the same cannot be presumed without any appropriate report or investigation report from the police.
In such instances, it is the bounden duty of the learned Magistrate to issue appropriate directions after following the procedure under the Cr. P.C. to ensure that an accused does not escape from the jurisdiction of the Court within which he is stated to be available.
On the first ground, this Court notes the decision of the Hon'ble Supreme Court in the case of Jitendra Panchal vs. Intelligence Officer, NCB & Anr. reported in (2009) 3 Supreme Court Cases 57. It has been laid down in the said decision, inter alia, at paragraph 42 that unless it is demonstrated that the offences under which the accused is being proceeded in two different countries, are absolutely the same, the principle of double jeopardy and particularly, Article 20(2) of the Constitution of India or 300(1) of Cr. P.C. are not attracted.
In the instant case, it is clear from the complaint lodged at the instance of the revisionist in the State of Ghana as recorded on October 30, 2019 by the Ghana Police is, inter alia, that the opposite parties have only made away with the Revisionists' money equivalent to INR 80 lakhs. In the instant case, the complaint has been lodged by the revisionist under the provisions of the Indian Penal Code relating to cheating, criminal breach of trust and falsification of accounts. It, therefore, cannot be said that the offences under which the opposite parties are being proceeded in two different jurisdiction i.e. in Ghana and in India are the same.
In those circumstances, this Court directs that the Officer-in-Charge, Shibpur Police Station to forthwith register the complaint dated 16.07.2019 launch the investigation and apprehend the accused and ensure that he is produced before the learned Chief Judicial Magistrate, Howrah, who shall take steps in accordance with law. The Officer-in-Charge, Shibpur Police Station shall take necessary help and assistance of the revisionist and their officials in this regard.
The aforesaid order is being passed in view of an urgency that this Court sees to ensure that the opposite parties or any of them do not escape from the jurisdiction of this Country.
Let this matter stand adjourned and be listed 2 weeks after the reopening of the Court after the long Puja vacation.
Since this matter has been taken up without notice to the State, Mr. Swapan Banerjee along with Mrs. Purnima Ghosh is requested to represent the State in this matter. On the next date, a brief report shall be furnished to this Court by the Officer-in-Charge, Shibpur Police Station.
It is expected that the Officer-in-Charge, Shibpur Police Station shall take swift and expeditious steps on the complaint lodged by the revisionist to ensure that the spirit of the aforesaid order is not lost.
Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.