CASE TITLE:
Muhammed Hashneer Poolakkal Vs The United Arab Bank and Anr
DATE OF ORDER:
18th April, 2022
JUDGE(S):
Hon’ble Justice Ziyad Rahman A.A
PARTIES:
PETITIONERS-Muhammed Hashneer Poolakkal
RESPONDENTS: (1)The United Arab Bank
(2)State of Kerala
SUBJECT
The fundamental question was whether the court's powers under Chapter VII A CrPC can be invoked based on an application submitted by an individual/entity or if the Central Government must submit a request in this regard.
IMPORTANT PROVISIONS
Code of Criminal Procedure.
BRIEF FACTS
- The respondent bank had given the petitioner a loan for his business in the United Arab Emirates. He then failed on repayment, and some of the checks he wrote to cover the loan were also returned unpaid.
- As a result, the respondent filed a criminal complaint in the United Arab Emirates. The petitioner was found guilty and was sentenced to three years in jail.
- Following that, the respondent filed an application with the Judicial Magistrate to begin proceedings for attachment of the petitioner's property under Sections 105C to 105J of the CrPC.
- The Magistrate ordered the Station House Officer to identify all of the petitioner's assets earned from criminal activity.
ARGUMENTS ADVANCED BY THE PETITIONER
- Advocate Nireesh Mathew, arguing for the petitioner and challenging the Magistrate's judgement, claimed that Section 105 CrPC does not authorize any individual or organization to approach a court in India directly by making an application for utilizing the aforementioned power.
- It was also claimed that the Ministry of Home Affairs' Guidelines on Mutual Legal Assistance in Criminal Matters stipulate certain procedures and factors to be considered when the government processes such a request.
- He reasoned that any anyone, whether a citizen of India or not, cannot approach the court directly to invoke the above mentioned powers, as doing so would amount to circumventing the Government's system and the protections that must be used when considering such a request.
ARGUMENTS ADVANCED BY THE RESPONDENT
- For the respondent bank, Lawyers Johnson Gomez, Sanjay Johnson, Sreedevi S, and Muhamed Sheharan argued that the stipulation in 105D (1) that the court can act on a petition of any person by invoking its powers under Section 105C(1), in addition to the power to act on a letter of request from the Centre.
- In this case, the State was represented by Senior Public Prosecutor Ranjit George.
ANALYSIS OF THE COURT
While Section 105C (1) allows the court to exercise its powers if it is satisfied that there are reasonable grounds to believe the property was gained through the commission of a crime, Section 105C (3) allows the court to act upon receipt of a letter of request from the Centre. However, it was noted that the provisions of Section 105C (1) cannot be read in isolation when considering the overall aim of Chapter VIIA.
CONCLUSION
The Court also noted that Section 105C (1) makes no reference of an individual or an entity filing an application to invoke the Chapter's powers. The Single Judge opined that if the legislature meant to allow the court to commence such procedures at the request of any individual or establishment, it would have been stated directly in the clause itself. In these circumstances, it was determined that the petition could not be heard by the Judicial First-Class Magistrate Court because it was filed by an institution without being transmitted by the Central Government or any other relevant authority. As a result, the plea was granted, and the contested order was reversed. It was clear, however, that the respondent is free to approach the Centre or any other relevant authority to use the provisions of Chapter VIIA.
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