Need Cent Govt permission 2 invetigate offence outside India. Good case for DV, Dowry accused NRIs out of India

Need Cent Govt permission 2 invetigate offence outside India. Good case for DV, Dowry accused NRIs out of India

Excerpts
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* "….In view of the provisions of Chapter 12 and the language of Section 188 dr. P. C. it necessarily follows that even for the purpose of investigation, even if it is deemed to come within the ambit of the phrase ‘dealt with’ used in Section 188, it requires previous sanction of the Central Government….."
* "….It is a well established proposition of law that under Article 226 of the Constitution of India, a High Court cannot issue a writ so as to have the effect outside the territorial jurisdiction of the High Court and when cause of action did not arise in Kerala State. …." "….Secondly, the person or authority to whom the High Court is empowered to issue such writs must be within those territories, which clearly implies that they must be amenable to to its jurisdiction either by residence or location within those territories. …."
* "….It is quite clear that writ petition does not lie in the Kerala High Court because the cause of action arose outside its territorial limits……"

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Kerala High Court

Samarudeen vs Assistant Director Of … on 9 December, 1995

Equivalent citations: 1995 CriLJ 2825

Author: D J Raju
Bench: D J Raju

ORDER D.J. Jagannadha Raju, J.

1. This O. P. is filed by the petitioner who was formerly residing in Saudi Arabia at Daman. He prays for a writ of mandamus to direct the first respondent, the Assistant Director of Enforcement, Trivandrum, to conduct investigation, enquiry and such other proceedings for violations of the Foreign Exchange Regulation Act committed by respondents 4 and 5, and for prosecuting them for the violations. He also prays for the consequential relief of recovering 95,000 Riyals which were illegally converted and brought to India through un-known source and ultimately came to be deposited in the bank account of the fifth respondent. He prays that adjudication proceedings and prosecution should be launched against respondents 4 and 5. He also prays for & direction to respondents 2 and 3, the Director General of Police, and the Circle Inspector of Police, to conduct investigation and complete it expeditiously and file a charge sheet before the concerned Magistrate on the basis of the complaint given by him. He further prays for a writ of mandamus directing the first respondent to consider and dispose of Ext. P5 petition. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

2. The facts pertinent for decision of this Original Petition may be briefly stated as follows. The petitioner was employed as a salesman in Daman in Saudi Arabia. The fifth respondent is his paternal uncle. The fourth respondent is the unemployed son of the fifth respondent. The petitioner has been in Saudi Arabia for a sufficiently long time. He was well employed and he was earning a very decent salary. On the request of the fifth respondent, he took the fourth respondent at his own expenses to Saudi Arabia with a view to secure him employment. As he could not secure proper employment for the fourth respondent, the petitioner secured 95,000 Riyals with a view to start a hotel so that he can employ the serviced f the fourth respondent. As the fourth respondent was staying with the petitioner, he was fully aware of the fact that the petitioner was keeping 95,000 Riyals in the table drawer. The fourth respondent had a spare key for the premises of the petitioner. During the month of Ramzan in April, 1992, all Muslim establishments would remain closed during the day time and they would be functioning from 8 p. m. to 12.30 p.m. in the night. The petitioner locked the table drawer and went to the workspot. At about 1a.m. when he returned to the house, he found that the outer door of the flat was open, and after entering the premises he found that the lock of the table drawer was broken and money was missing. As the fourth respondent has a spare key, the petitioner suspected the fourth respondent. He immediately wanted to report the matter to the police. He took the fourth respondent along with him in car to go to the polite, station. The movements of the fourth respondent were suspicious. When they were going to the police station, the fourth respondent was driving the car. The fourth respondent created an accident by dashing the car against a parked vehicle, and it created an incident. The fourth respondent ran away. The petitioner made his best efforts to trace the fourth respondent. He could not trace him. His suspicion got confirmed and he had a feeling that the fourth respondent would have escaped to India. Immediately, the petitioner came to India and reached his native place on 11-4-1992. The fourth respondent came to India one week later, with two bags of foreign articles and 40 sovereigns of gold. The enquiries made by the petitioner revealed that the entire money stolen from the petitioner was arranged to reach India through tube money (through hawala transactions). The petitioner filed complaints before respondents 2 and 3 for registering a criminal case against the fourth respondent and to recover the theft property which was stolen in Daman. It was found that respondents 4 and 5 were spending lavishly and investing money in various businesses. They do not have resources to spend so much money. When police started investigating into the case, various Cri. M. Cs. were filed to thwart the investigation. In Cri. M. C. No. 699 of 1994, this Court passed an order to the effect that if a notice is given, the petitioners (respondents 4 & 5 herein) shall appear before the investigating officer and allow to be interrogated. But they shall not be arrested except with the permission of the Court. Respondents 4 and 5 filed O. P. No, 2338 of 1994 and obtained interim orders in C. M. P. No. 4339 of 1994, to the following effect:

"There shall be an interim direction to respondents 1 and 2 not to compel the petitioners to pay the amount claimed by the third respondent (the present petitioner)."

That order was later modified. The O. P. was disposed of on 10-8-1994 indicating that the second respondent may proceed with the investigation of the crime, if any crime is registered against the present respondents 4 and 5. Ext. P4 judgment directing investigation is not implemented. The investigation has not been done and no charge-sheet is filed. On the other hand, respondents 4 and 5 are at large and they are conducting business using the money stolen from the petitioner. A complaint was given to the first respondent to proceed against respondents 4 and 5 for violations of the Foreign Exchange Regulation Act, especially Sections 9 arid 63. The first respondent neither investigated into the matter, nor did he recover the money. He never took steps to attach the properties of respondents 4 and 5. Hence the present writ petition, with the various prayers mentioned supra. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

3. The first respondent filed a couffter affidavit stating that the first respondent is unnecessarily made a party to this O. P. The theft of Riyals took place outside India and the department cannot make any inquiry based on the petition averments, unless there is documentary evidence. If independent investigation discloses violation of Foreign Exchange Regulation Act appropriate action will be taken against those who are involved in the matter, and if necessary, action will be taken against the present petitioner as well. At any rate on the basis of the averments niade in the petition, the first respondent is not in a position to take any further action. On going through the petition, the first respondent found that there is no justification for taking action under Foreign Exchange Regulation Act. The various allegations are based upon misconceptions of the powers of the first respondent. The first respondent cannot exercise powers of a police officer. If the first respondent obtains credible and valuable information regarding the violations, he would certainly take action as per the Foreign Exchange Regulation Act.

4. On behalf of the respondents 2 and 3, the third respondent filed a counter and resisted the petition. It was stated that on 7-9-1993, regarding a theft allegedly committed by the fourth respondent a report was given by the petitioner with the Additional Director General of Police (Crimes). The petitioner was endorsed to Mr. C. Devarajan, the Detective Inspector. When he started making preliminary enquiries, the fourth respondent filed various criminal miscellaneous cases and Court issued orders stating that respondents 4 and 5 should not be arrested and at that time, the Additional Director General of Police took the stand that no crime has been-’jegistered for non-bailable offence. Various allegations made in the complaint and in this O. P. are not fully correct. In Crl. M. C. No. 699 of 1994, respondents 4 and 5 were directed by this Court to appear before the Investigating Officer and to allow them to be questioned. But they should not be arrested except with the permission of this Court. In this counter filed by the third respondent, Investigating Officer, no mention is made about the O. P. filed by the fourth respondent and the stand taken by the police in that O. P.

5. Respondents 4 and 5 filed a counter affidavit to the effect that the O. P. is not maintainable. The facts stated in O. P. are not true. The police has no statutory power to investigate the crime which took place, according to the O. P., outside India. The Central Government has not given any sanction for investigation. Hence investigation, enquiry and trial cannot be conducted by the local police, who have no jurisdiction. It is claimed by the fourth respondent that in Saudi Arabia he had no contact with the petitioner and that the petitioner lost his employment due to some fraud committed with his employer. The petitioner left Saudi Arabia without any valid travel documents or passport. His passport was deposited with his employer. In view of the fraud committed by him he escaped without any valid documents. The petitioner could not have saved 95,000 Riyals. His monthly salary was only 650 Riyals. After the petitioner escaped from Saudi Arabia, the Saudi Arabia CID police started harassing the fourth respondent to reveal the whereabouts of the petitioner as the fourth respondent is closely related to him. Unable to bear the harassment of the police in Saudi Arabia on 23rd April, 1992, the fourth respondent left Saudi Arabia and reached India. The petitioner actually left Saudi Arabia in February, 1992 after committing the fraud. Even the entry of the petitioner into India without a valid travel document is illegal. In Saudi Arabia there was a complaint against the petitioner for misappropriation of 95,000 Riyals. The present complaint to the police was given by the petitioner 22 months after he reached India. All the while, the police harassed respondents 4 and 5 to pay the amount to the petitioner. In such a background the fourth respondent had to file M. C. No. 192 of 1994, M. C. No. 219 of 1994, and Crl. M. C. No. 699 of 1994, and also a Writ Petition, O. P. No. 2338 of 1994. In the O. P. this Court directed the police not to harass and to compel the fourth respondent to pay the amount. The petitioner having committed a crime in Saudi Arabia now wants to escape the liability by giving a petition against respondents 4 and 5. Various other allegations in the petition are false. The petition allegations about the fourth respondent driving a car when going to the police station and then the fourth respondent causing an accident by hitting against another car and then escaping are all false. The fourth respondent did not bring any gold. He did not steel any money from the petitioner. He did not bring any money into the country through hawala transactions. The petitioner did not file a complaint to the police immediately after his arrival. He filed the complaint 22 months after he arrived in India. The fourth respondent filed O. P. No. 2338 of 1994 when the police started continuously harassing and compelling him to pay the money to the petitioner. The various Court orders passed do not decide whether the local police has got power to investigate into the alleged crime. The fourth respondent has not violated any of the provisions of the Foreign Exchange Regulation Act. The money in the bank account of the fifth respondent is obtained through lawful sources. This was explained to the Crime Branch as well as the first respondent. They were satisfied about the genuineness of the accounts and did not proceed further. The O. P. may be dismissed with costs. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

6. The petitioner’s counsel relied heavily upon two decisions of this Court and claimed that though the offence was committed outside India, as the offender is a citizen of India and as he is now found within the local jurisdiction of Kerala, the local police has jurisdiction to investigate the case. The two decisions relied upon are Remia v. S. P. of Police, 1993 (1) KLT 412 : (1993 Cri LJ1098); and Muhammed v. State of Kerala, 1994 (1) KLT 464 (DB). The correctness of the interpretation of law in these two decisions is one of the important aspects that will have to be considered in this O. P. It is contended on behalf of the respondents that as the crime was committed outside India, the local police has no jurisdiction to investigate and at the most they may derive the power to investigate only when the Central Government grants sanction. Without obtaining the sanction of the Central Government the crime cannot be investigated. It is also urged on behalf of the respondents that while exercising jurisdiction under Article 226 of the Constitution, this Court cannot issue a writ regarding a cause of action which arose outside the territorial limits of the Kerala State. The respondents rely heavily upon two decisions of the Supreme Court in Election Commission v. Venkata Rao, and Oil and Natural Gas Commission v. Utpal Kumar Basu, . It is also contended on behalf of the first respondent that the first respondent did not find adequate material to take action under the Foreign Exchange Regulation Act, and as and when they got genuine information apart from the ipse dixit of the petitioner, they would certainly take action against all concerned, if they find that there is any violation of the Foreign Exchange Regulation Act.

7. It is a well established proposition of law that under Article 226 of the Constitution of India, a High Court cannot issue a writ so as to have the effect outside the territorial jurisdiction of the High Court and when cause of action did not arise in Kerala State. The Supreme Court in Election Commission’s case, , dealt with the history of the law of writs in India. This particular aspect was dealt with in paragraphs 6,7,8 and 17. In paragraph 6, the Court observed that by virtue of the introduction of Article 226 all High Courts in India were brought on the same footing with regard to the power to issue writ and that a two fold limitation was placed upon theirexercise. In the first place, the power is to be exercised throughout the territories in relation to which it exercises jurisdiction, that is to say the writ issued by the Court cannot run beyond the territories subject to its jurisdiction. Secondly, the person or authority to whom the High Court is empowered to issue such writs must be within those territories, which clearly implies that they must be amenable to to its jurisdiction either by residence or location within those territories. In pargraph 7 it was pointed out that these characteristics of the special form of remedy rendered it necessary for its effective use that the persons or authorities to whom the Court was asked to issue these writ should be within the limits of its territorial jurisdiction. We are unable to agree with the learned Judge, below that if a tribunal or authority permanently located and normally carrying on its activities elsewhwere exercise jurisdiction within those territorial limits so as to affect the rights of parties therein, such tribunal or authority must be regarded as functioning within the territorial limits of the High Court and being therefore amenable to its jurisdiction under Article 226. In paragraph 17 the Court gave its conclusion that the High Court was not competent under Article 226 to issue any prerogative writ to the appellant, Election Commission, and accordingly quashed the writ issued by the High Court.

8. In the present case on hand, the crime was committed outside India in Saudi Arabia. The issuing of a writ to the local officials functioning in Kerala would be authorising them to investigate an offence which was committed outside India. Even according to the O. P., the alleged theft took place at Daman in Saudi Arabia. Only the allegation about bringing in some of the stolen money through unauthorised sources to India partly took place in India. The counter affidavit of the first respondent clearly indicates that they were unable to get any authentic material to establish this allegation. The first respondent categorically stated in the counter that as and when they get genuine material regarding the petition allegations, they would certainly take action against all persons concerned for violation of the Foreign Exchange Regulation Act.

9. Oil and Natural Gas Commission’s case, , is a case where a writ petition was filed in the Calcutta High Court on the ground that the writ petitioner saw the notification calling for tenders at Calcutta, submitted a tender from Calcutta, with regard to the tenders which are to be opened at Delhi and with regard to work which has to be carried on in Gujarat. The Calcutta High Court taking the view that a part of the cause of action aroses within the jurisdiction of the Calcutta High Court by reason of the notification being seen and the tender submitted from Calcutta, granted the writ. When the matter was taken to the Supreme Court, the Supreme Court came down heavily upon the High Court and passed severe strictures. At page 717vvhile dealing with the objection of lack of territorial jurisdiction, the Court observed as follows:-

"In other words, the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition….

The learned counsel for ONGC contended that on these averments no part of the cause of action had arisen within the jurisdiction of the Calcutta High Court and hence the writ petition filed by NICCO and another was not cntertainable by that High Court…."

at page 719 the Court observed as follows:

"…Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action… it can not be said that a part of the cause of action arose within thejurisdiction of the Calcutta High Court."

Then the Supreme Court dealt with the origin of Article 226 and the subsequent amendment made by way of introducing Clause (1 A) which was later renumbered as Cliiuse (2) of Artiple 226, and referred to the decision of the Supreme Court in Seka Venkata Subba Rao’s case, (supra). In the last paragraph of the judgment, the Supreme Court indicated its deep displeasure and deprecated the practice prevalent in the High Court of Calcutta of exercising jurisdiction and passing interlouctory orders in matters where it lacked territorial jurisdiction. It further pointed out that inspite of the strictures made on several occasions, they are distressed that the High Court of Calcutta persists in exercising jurisdiction even in cases where no part of the cause of action arose within its territorial jurisdiction. It is indeed a great pity that one of the premier High Courts of the country should appear to have developed a tendency to assume jurisdiction on the sole ground that the petitioner before it resides in or carries on business from a registered office in the State of West Bengal. We feel all the more pained that notwithstanding the observations of this Court made, time and again, some of the learned Judges continue to betray that tendency. A Calcutta based-firm instituted proceedings in the Calcutta High Court and the High Court exercised jurisdiction where it had none whatsoever. It must be remembered that the image and prestige of a Court depends on how the members of that institution conduct themselves. If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the Court, certain members of the Court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said Court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation. Ultimately, the Court allowed the Writ petition, and set aside the writ issued by the Calcutta High Court.

10. It is quite clear that writ petition does not lie in the Kerala High Court because the cause of action arose outside its territorial limits.

11. I shall now deal with the question as to whether on the basis of the allegations in the petition, the police of Kerala State has the power to investigate the crime reported by the petitioner to respondents 2 and 3. A learned Single Judge of this Court in Remla v. S.P. of Police, 1993(1) KLT 412 : (1993 Cri LJ 1098), dealt with a case where one Sulaiman died on 21-6-1992 at Sharjah in United Arab Emirates. The mother, widow and brother of the decesaed suspected that one Ali was responsible for committing the murder. When Ali was in Kerala, a report was given to the Sub Inspector of Police, Tanu in Malappuram Dist. The police did not accept the report and it did not register a crime. Then O. P. No. 13589 of 1992 was filed.

The learned Single Judge relied upon Section 188 of the Cr. P. C. and Sections 3 and 4 of the IPC came to the conclusion in the following terms:-

"No doubt Section 188 concerns as to how to deal with a person who has committed an offence outside India. Since the proviso casts an obligation to obtain previous sanction of the Central Government to inquire into and try such person, the section has a message that for the pre-inquiry stage no such sanction is needed. If during pre-inquiry stage any offender can be dealt with (without such sanction) what could be the contours of that stage? I have no doubt that pre-inquiry stage substantially relates to investigation stage."

In view of this conclusion, the learned Single Judge gave his opinion in paragraph 7 in the following terms:

"The up shot is that Sub Inspector of Tanur Police Station can conduct investigation in to the offence notwithstanding the place of occurrence being Sharjah because the person on whom the focus of suspicion turns is said to be a citizen of India."

"I therefore direct the Sub Inspector Tanur Police Station to record the statement of one of the petitioners regarding the death of Sulaiman, within one week from the date of receipt of a copy of this judgment and prepare an FIR register the crime and proceed with investigation steps in accordance with law."

Reading the entire judgment, I am afraid, this statement of the law cannot be accepted as correct. The learned Single Judge has not given due importance to the scheme of the Cr. P. C. and various other Section in Cr. P. C. It should be remembered that Section 188 Cr. P. C. reads as follows:

"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."

Section 188 comes within Chapter 13 of the Cr. P. C. It is interesting to see that in the proviso the significant words used are "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. The proviso does not mention the words ‘notwithstanding anything in any of the other provisions of this Code."

The proviso confines itself to the provisions of Chapter13 only. Chapter 12 of the Code deals with investigation. The sub-heading of Chapter 12 "Information to the Police and their powers to Investigate’ is very significant. Section 156 assumes a lot of importance. This section deals with powers of the Police Officers to investigate cognizable case. It reads as follows:

"156. Police Officer’s power to investigate cognizable case:- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter III…."

With utmost respect to the learned Single Judge I have to point out that the learned Judge never adverted to Section 156 of the Cr. P. C. and the prerequisite of the Court having jurisdiction over the local area. The learned Judge simply referred to Section 3 and 4 of the IPC which come within Chapter I. Section 3 deals with punishment of offences committed beyond, but which by law may be tried within India. This section only contemplates that if a person committed offence beyond India and if he is triable under any Indian law, he can be tried in India. Section 4 deals with extension of the Indian Penal Code to extra-territorial offences. It should be remembered that these two sections relate to substantive law. They do not relate to procedure. Without referring to the scheme of the Cr. P. C. and without refering to the various definitions given in Section 2(e), 2(g) and 2(h) the learned Judge presumed that pre-enquiry stage refers to investigation stage. The Court also over looked Section 156 Cr. P. C. It is, significant to remember that Section 2(h) defines investigation in a particular manner. ‘Investigation!’ includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. This definition also pre-supposses that the concerned Magistrate has the jurisdiction, to inquire into or try the case. The local jurisdiction is defined in Section 2(j). The assumption of the learned Judge that a pre-enquiry stage substantially relates to investigation stage is based upon a wrong understanding of the scheme of the Code and the various definitions given in the Cr. P. C. It is my unpleasant task to point out that the view expressed by the learned Judge is not correct. It overlooks the several provisions of the Cr. P. C.

12. The decision in Muhammed’s case, 1994(1) KLT 464, is a Division Bench decision of this Court, wherein the learned Judges after referring to various well-noted text books, but without referring to the scheme of the Cr. P. C, have come to the conclusion that Section 188 of the Cr. P. C. authorises investigation by the local police for a crime committed outside India by a person who is now a citizen of India and found in India, even without obtaining the sanction of the Central Government. In paragraph 28 the learned Judges pointed out that they are in agreement with the views of Thomas, J. in Remla v. S. P. of Police, 1993 (1) KLT 412 : (1993 Cri Lj 1098). There also the crime took place in United Arab Emirates. On the basis of the arguments, two points were framed for consideration in paragraph 5 at page 466; (1) What are the principles applicable in regard to extra-territorial jurisdiction of Criminal Courts in respect of an offence by an Indian citizen which is assumed to have been completed in a foreign country? and (2) What is the scope and effect of Section 4 of the Indian Penal Code read with Section 4, 188, 2(g) and 2(h) of the Cr. P. C? The learned Judges quoted very reputed text books and dealt with the question under the territorial principle, the protective or security principle, nationality or citizenship princple and universality principle. We are not concerned with the learned discussions given in paragraphs 6 to 16, because they are only a survey of the general principles relating to extra-territorial jurisdiction of criminal offences. They pointed out that Section 4 of the IPC incorporates a nationality principle. At the end of paragraph 14, the Court observed as follows:

"Indeed, Section 4 of the Indian Penal Code which deals with offences committed by Indian citizens abroad, incorporates the Nationality principle. The principle while it is good for the country of origin, it must at the same time, be ensured that so far as the accused is concered, there is no double jeopardy.

I am afraid, this statement is too much of generalisation. On the basis of the allegations in the present Original Petition, if respondents 4 and 5 are to be tried and convicted in India they are certainly subject to the double-jeopardy, because the Saudi Arabia Penal Laws would be applicable to the fourth respondent and Saudi Arabia Government would be entitled to prosecute the fourth respondent and convict him as the offence took place at Damam in Saudi Arabia.

13. The Division Bench discussed point No. 2 in paragraphs 17 to 27 of the judgment. A reading of these paragraphs indicates that the Bench never dealt with the provisions in Chapter 12 of Cr. P. C. which deals with investigation. Narayanan v. Emperor, AIR 1935 Bom 437, which was referred to in paragraph 18 is a case dealing with trials in British India for offences committed outside India applying Section 188 Cr. P. C. and Section 4 of the IPC. The Court only pointed out that these provisions are taken from Section 8 and 9 of the Foreign Jurisdiction and Extradition Act, 1879. That decision did not deal with the capacity or legality of the police in British India, to investigate the crime committed outside. It only dealt with trials which can certainly be conducted, if the Central Government gives sanction as contemplated under Section 188 Cr. P. C. In paragraphs 20 and 21 the Court referred to Section 4 of the IPC and Section 188 of the Cr. P. C. Then after referring to the definition of ‘inquiry’ in Section 2(g) and ‘investigation’ defined in Section 2(h), and Section 4 Cr. P. C, referred to the argument of learned counsel in paragraph 22. It was specifically urged before the Division Bench that even if it is assumed that the substantive provisions in Section 4 IPC could apply, if facts are proved, Section 188 Cr. P. C. which permits a Criminal Court in India to deal with the matter does not apply to enable investigation by Indian police. According to him, even if the petitioner is said to have been found in India as required by Section 188 Cr. P. C. still inasmuch as Section 188 is in Chapter 13 dealing with inquiry and trial and inasmuch as the proviso to Section ! 88 also refers to inquiry and trial of extra-territorial offences, no section in Chapter 13 much less Section 188 can permit investigation into such extra-territorial offences. It is aruged that investigation envisaged in Section 2(h) Cr. P. C. is different from inquiry as defined in Section 2(g) Cr. P. C. and trial. Reliance is also placed on Section 4 Cr. P. C. to say that the words ‘dealt with’ in Section 188 Cr. P. C. do not include investigation, inquiry or trial. Inspite of the specific arguments the Division Bench did not refer to the provisions in Chapter 12 which deals with investigation and gave significance to the definition of ‘local jurisdiction’ defined under Section 2(j) of the Cr. P. C. The Court jumped to the conclusion in the following terms:-

"…We cannot presume that in Section 188 Cr. P. C. the Legislature used the words ‘dealt with’ by restricting the meaning to something other than investiagtion, inquiry or trial. The Supreme Court in Ajay Agarwal’s case, (1993) SCC Crl. 961 : (1993 Cri LJ 2516), has observed that Section 188 Cr. P. C. creates a statuory fiction by using the words ‘as if. The section confers jurisdiction on the Court where the alleged offender is found, for the purpose of ‘dealing’ with the offence."

Then the Bench pointed out in paragraph 24 as follows:-

"The words ‘deal with’ in the main part of Section 188 Cr. P. C, in our view, are used in a wide sense, while the proviso to Section 188 Cr. P. C. required sanction of the Central Government for purpose of ‘inquiry’ and ‘trial’, the words ‘deal with’ in the main part must necessarily include at least ‘inquiry’ and ‘trial1. The words ‘deal with’ in Section 4 of the Cr. P. C. referred to above as amounting to something other than ‘investigation’, ‘inquiry’ and ‘trial’, therefore fall to the ground.

…In view of the decision of the Supreme Court (Delhi Admn. v. Ram Singh, , the words ‘dealt with’ in Section 188 Cr. P. C. must be held to include ‘investigation’ also, apart from ‘inquiry’ and ‘trial’. For purposes of ‘investigation’ into offences committed abroad, sanction of the Central Government is not necessary."

14. With utmost respect to the judges of the Division Bench the conclusion arrived at is based upon a cursory examination of only a few provisions of the Cr. P. C. and overlooking the provisions of Cr. P. C. in Chapter 12 and the definition of ‘local jurisdiction’ in Section 2(j) and ‘investigation’ in Section 2(h) Cr. P. C. It should also be remembered that the Criminal Procedure Code contains several Sections which provide for the Court ‘dealing with’ people for various types of actions. It does not mean that the pre-enquiry stage necessarily means investigation. The Court failed to see that Section 188 does not have overriding effect over the provisions of Chapter 12. Inspite of the Court’s attention being specifically drawn to the fact that Section 188 does not cover investigation envisaged in Section 2(h) the Court did not go into Chapter 12 which alone deals with investigation. With utmost respect to the learned Judges the interpretation of law that the main part of Section 188 does not require sanction of the Central Government and only for the purpose of inquiry and trial mentioned in the proviso, the previous sanction of the Central Government is required, is an erroneous view, ignoring several vital provisions of the Cr. P.C.

15. Section 188 occurs in Chapter 13 which deals with jurisdiction of Criminal Courts in Inquiries and Trials. Even the sub heading of this Chapter would have indicated to the Court that it did not cover investigation. It should also be remebered that proviso to a section qualifies the entire section and the language of the proviso in Section 188 is very significant. It reads as follows:-

"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."

It is significant to remember that the overriding effect is given to the section only with regard to inquiry and trial. It does not cover investigation. If we examine the language of the main section, we find that obviously the words ‘he may be dealt with in respect of such offences’are used in the sense in which the proviso refers to them as in Chapter 13. It is significant to remember that Section 188 is not given overriding effect over other provisions in other Chapters of the Cr. P. C, particularly the provisions in Chapter 12.

16. Considering the fact that this Division Bench decision dealt with the matter without referring to various other provisions of the Cr. P. C, as pointed out supra. I am of the view that this decision does not have the effect of binding precedent; hence I steer clear of. It looks as if the learned Judges were more influenced by the law propounded by a learned Single Judge of this Court in Remla v. S. P. of Police, 1993 (1) KLT 412:(1993 Cri LJ 1098) and they did not bother to examine the matter in proper perspective and in depth. May be the relevance of Chapter 12 Cr. P. C. and its provisions were not brought to the notice of their Lordships. With utmost respect to the learned Judges who dealt with the decisions in Remlav.S. P. of Police, (1993) 1 KLT412:(1993 Cri LJ 1098), and Muhammed v. State of Kerala, (1994) 1, KLT 464,1 am of the view that they are not binding precedents, and they are not applicable to the facts of the present case. I am conscious of the fact that Single Judge of this Court is bound by a decision of the Division Bench; and still I am deviating from the Division Bench decision as adecision rendered without reference toall the relevant provisions of the statute does not have the legal effect of a binding precedent.

17. In view of the provisions of Chapter 12 and the language of Section 188 Cr. P. C. it necessarily follows that even for the purpose of investigation, even if it is deemed to come within the ambit of the phrase ‘dealt with’ used in Section 188, it requires previous sanction of the Central Government.

18. It is significant to remember that Section 3 IPC deals with any person liable by any Indian law to be tried for an offense committed beyond India. It does not deal with the power of the Indian police to investigate a crime committed outside lndia. lt should also be remembered that Sections 3 and 4 of the IPC are provisions of the substantive law, and they have nothing to do with the procedural law. In my considered opinion the statement of law in the decision in Remla’s case, (1993) 1 KLT 412 : (1993 Cri LJ 1098), and in Muhammed’s case, (1994) 1 KLT464 is not a correct statement of law. The local police has no jurisdiction to investigate the offence alleged t6 have been committed by the fourth respondent at Damam in Saudi Arabia.

In the result, this Court has no jurisdiction to issue the writ as prayed for, both on the ground of want of jurisdiction as the offense was committed outside the territorial limits of this Court, and also on the ground that Section 188 Cr. P. C. does not clothe the local police to investigate the crime. The Original Petition is dismissed. Each party to bear its own costs.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Woman rapes MINOR boy & threatens to file rape case on father IF he tells the truth !!! also exploited her brothers

Woman tutor, brothers sexually exploit teen

Hindustan Times Ludhiana, October 19, 2014

First Published: 23:10 IST(19/10/2014) | Last Updated: 12:40 IST(20/10/2014)

In a shocking incident, a 33-year-old woman tutor sexually exploited her 14-year-old student at knifepoint for over a year and also made sexually explicit clips with the help of her two brothers.

THE LUDHIANA POLICE ALLEGEDLY FAILED TO ACT ON THE COMPLAINT FOR OVER TWO MONTHS UNTIL NGO BACHPAN BACHAO ANDOLAN TOOK UP THE MATTER WITH THE NATIONAL COMMISSION FOR CHILD RIGHTS.

The police have now booked the woman, Radha of Sham Nagar, and her two brothers – Raghav and Madhav. The police conducted a raid at their house, but could not lay hands on them.

However, they managed to recover 17 sexually explicit videos from the woman’s laptop, which show the woman exploiting the teenager at knifepoint with the help of her brothers.

THE POLICE ALSO RECOVERED SEDATIVES, SEX TOYS, KNIFE AND SOME LETTERS ADDRESSED TO THE VICTIM FROM THE SPOT.

One of the clips also depicts the woman sexually exploiting her own brothers, while her brothers have shot the remaining videos.

In his complaint, the victim’s father, also a resident of Sham Nagar, submitted that they lived as tenants in Radha’s house, and later his son started taking tuitions from her. He said his son had been complaining of severe stomach pain for several months, but did not reveal anything despite his insistence. One day, his son came home with a pen drive containing the explicit videos, bringing the woman’s crime to the fore. The complainant then approached the police.

Dinesh Kumar, activist of Bachpan Bachao Andolan, said despite the severity of the crime, the police failed to act on the complaint.

"Thereafter, the victim’s father contacted our NGO’s headquarters in Delhi stating that he had filed a complaint with the police commissioner but no action was taken. Therefore, the headquarters forwarded the matter to National Child Rights Commission that directed the police to arrest the accused," Kumar added.

Sukesh Kalia, vice-chairman, National Child Rights Commission, said they had directed the police to investigate whether the woman was selling the explicit videos, and also to ensure that the accused did not escape from the country.

Inspector Dharampal, station house officer (SHO), Division Number 5 police station, said Radha was showing the sexually explicit videos to the victim, when he snatched the pen drive containing the clips and informed his parents.

He added that a case under sections 294 (obscene acts and songs), 506 (criminal intimidation), 34 (acts done in furtherance of common intention) and sections 3, 4, 5 (L), 14, 15, 16 and 17 of the Protection of Children from Sexual Offences Act, 2012, had been registered.

However, Bachpan Bachao Andolan has demanded that the accused also be booked for creation and transmission of child pornography.

The police have launched a manhunt to arrest the accused.

Victim got threats to remain mum

THE LETTERS RECOVERED FROM RADHA’S HOUSE THREATENED THE VICTIM THAT SHE WOULD IMPLICATE HIS FATHER IN A RAPE CASE IF HE REVEALED THE MATTER TO ANYONE, THE POLICE SAID.

THROUGH THE LETTERS, SHE ALSO THREATENED THE VICTIM THAT SHE HAD CONNECTIONS WITH INFLUENTIAL POLICE OFFICIALS. HENCE, THE POLICE WOULD NOT ACT AGAINST HER; FURTHER WARNING HIM THAT NOBODY WOULD BELIEVE HIM, AS IT WAS ALWAYS WOMEN WHO WERE RAPED, AND NOT MEN.

source
http://www.hindustantimes.com/punjab/ludhiana/woman-tutor-brothers-sexually-exploit-teen-make-explicit-videos/article1-1277205.aspx

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Merely accompanying woman out to prostitute is NOT inducing even if that girl is a MINOR !! Hon. Supreme Court of India (1962 landmark case !!)

As far as I know (please post comments or correct me IF I am wrong)
***************************
* Prostitution per se is NOT illegal in India
* However abetting, pimping, trafficking, forcing, coercing, running a brothel etc are all illegal

* This distinction and a clear definition of what is abetting / forcing comes out in this case

* Here is a case where the Hon SC has said "……A person who merely accompanies a woman going out to ply her profession of a prostitute, even if she has not attained the age of 18 years, could not be said thereby to induce her to go from any place or to do any act with the intent or knowledge that she will be forced or seduced to illicit intercourse within the meaning of s. 366 A….."
* The Hon SC also states "….Seduction implies surrender of her body by a woman who is otherwise reluctant or unwilling to submit herself to illicit intercourse in consequence of persuasion, flattery, blandishment or importunity, whether such surrender is for the first time or is preceded by similar surrender on earlier occasions. But where a woman offers herself for intercourse for money-not casually but in the course of her profession as a prostitute there are no scruples nor reluctance to be overcome, and surrender by her is not seduction within the Code. ….."

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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SUPREME COURT OF INDIA

RAMESH vs THE STATE OF MAHARASHTRA

24 July, 1962

Equivalent citations: 1962 AIR 1908, 1963 SCR (3) 396

Author: S C.
Bench: Shah, J.C.

PETITIONER: RAMESH
Vs.
RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT: 24/07/1962

BENCH: SHAH, J.C.

BENCH:
SHAH, J.C.
SINHA, BHUVNESHWAR P.(CJ)
WANCHOO, K.N.

CITATION:
1962 AIR 1908 1963 SCR (3) 396

ACT:

Criminal Law–Seduction–Assisting prostitute in her profession–If amounts to inducement to forced or seduced illicit intercourse–Indian Penal Code (Act 45 of 1860), ss. 84, 809, 366, 366 A.

HEADNOTE:

The appellant was convicted of the offence under s. 366A read with s. 109 of the Indian Penal Code. The case against him was that A who was a minor below the age of 18 years was brought up by P and had before the date of the offence been habituated to the life of a prostitute. On the day in question the appellant went to the residence of P and asked him to bring A to a theatre, P accompanied A to the theatre where the latter sought some customers. They were taken by another person to a place called Bohori Kathada at which place A was invited for the purpose of prostitution. When P accompanied A to the theatre and from there to Bohori Kathada he knew that she was going for plying her profession as a prostitute.

Held, that the appellant could not in law be held guilty of abetting the commission of an offence under s. 366A of the Indian Penal Code by P.

A person who merely accompanies a woman going out to ply her profession of a prostitute, even if she has not attained the age of 18 years, could not be said thereby to induce her to go from any place or to do any act with the intent or knowledge that she will be forced or seduced to illicit intercourse within the meaning of s. 366 A.

Seduction implies surrender of her body by a woman who is otherwise reluctant or unwilling to submit herself to illicit intercourse whether such surrender is for the first time or is preceded by similar surrender on earlier occasions ; but where a person in the course of her profession as a prostitute offers herself for profession as a prostitute offers herself for intercourse, there are no sucruples nor reluctance to be overcome, and surrender by her is not seduction within the Code.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 72 of 1961.

Appeal by special leave from the judgment and order dated December 20, 1960, of the Bombay High Court in Criminal Apeal No. 1207 of 1960.

Jai Gopal Sethi, C.L. Sareen and R.L. Kohli, for the appellant, G. C. Mathur and P. D. Menon, for the respondent. 1962. July 24. The Judgment of the Court was delivered by SHAH, J.–On May 1, 1962, we ordered after arguments were concluded that the appeal be allowed and the conviction of the appellant be set aside. We now proceed to record our reasons in support of the order.

The appellant, Ramesh Amin, and seven others were tried in the Court of Session, Aurangabad, for offences punishable under ss. 366, 366A. Indian Penal Code, and abetment thereof. The appellant was the third accused at the trial. The Sessions Judge convicted accused Nos. 1 to 4 and 7 of the offences charged against them and sentenced them to suffer rigorous imprisonment for two years for each offence, and acquitted the rest. The High Court of Bombay entertained appeal of accused Nos. 1 to 4 (but not of accused No. 7) and set aside the order of conviction and sentence against them for the offences punishable under s. 366 read with s. 34 and s. 366A of the Indian Penal Code. The High Court, however, convicted the appellant of abetting the seventh accused in inducing a minor girl, Anusaya, to go with other persons from her residence at Kabadipura to Gulzar Theatre, and then to a house known as Bohori Kathada with intent that she may or knowing that she was likely to be seduced to illicit intercourse. With special leave the appellant has appealed to this Court.

The seventh accused, Patilba, is a resident of Aurangabad, and the eighth accused is his wife. Anusaya is the daughter of Shakuntala by her husband Kashinath. After the death of Kashinath, Shakuntala brought her infant daughter Anusaya to the house of Patilba and started living with him as his mistress. Sometime later Shakuntala left the house of Patilba and took up residence at Nasik but Anusaya ‘continued to live with Patilba and was brought up by him. Marriage was arranged by Patilba between Anusaya and one Ramlal, but Anusaya declined to live with her husband. Patilba introduced Anumaya to some "customers" and she started indulging in promiscuous intercourse, for money. It was the prosecution case that on January 13, 1960, the appellant went to the residence of Patilba and asked him to bring Anusaya and one Chandrakala (a woman following the profession of a prostitute) to the Gulzar Theatre, and accordingly, Patilba, the eighth accused, Chandrakala and Anusaya went to the Theatre. At the instance of the appellant, Anusaya and Chandrakala were taken by one Devidas (who has given evidence as an approver) to Bohori Kathada. Sub-Inspector Pagare of the Police Station City Police Chowk, Aurangabad, had received information that some persons were consuming illicit liquor in a room at Bohori Kathada and he arranged to raid that house. Pagare found accused Nos. 1 to 5 and Devidas in a room consuming liquor. He also found Chandra- kala and Anusaya in an inner apartment, Persons found in the room were arrested and sent for medical examination to the local Civil Hospital, and it was found that Anusaya had not attained the age of 18 years. Pagare then laid an information before the Judicial Magistrate, Aurangabad, for offence punishable under the Bombay Prohibition Act, 1949- (we are informed at the Bar that in respect of those offences the accused were acquitted and we are not concerned in this case with those offence) and also for offences punishable under ss. 366 and 366A of the Indian Penal Code against nine persons including the appellant, Patilba and Devidas. In the course of proceedings for commitment to the Court of Session, Devidas was tendered pardon on condition of his making a full disclosure of the circumstances within his knowledge. The case was then committed to the Court of Session, Aurangabad for trial. The Court of Session held that accused Nos. 1 to 4 had in furtherance of their com- mon intention kidnapped Anusaya a girl below the age of 18 years-in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she would he forced or seduced to illicit intercourse, and the seventh accused Patilba had abetted the commission of that offence, and that accused Nos. 1 to 4 and 7 had induced Anusaya to go from her residence to the Gulzar Theatre and from the theatre to Bohori Kathada with intent that she may be or knowing that it was likely that she would be forced or seduced to illicit intercourse. He accordingly convicted accused Nos. 1 to 4 of the offence under s. 366 read with s. 34 of the Indian Penal Code and also of the offence under a. 366A of the Indian Penal Code.

The High Court of Bombay in appeal acquitted accused Nos. 1 to 4 of the offence of kidnapping because, in their view, accused Nos. 1 to 4 had "nothing whatever to do with the original kidnapping by Patilba (the 7th accused) and since he was not the lawful guardian of this girl, her being bro- ught to this room cannot be regarded as kidnapping".
The learned Judges also acquitted accused Nos, 1 to 4 of the offence under s. 366A observing that ,,there is no evidence of any direct talk between any of the accused and the girl, nor even of any inducement offered through Patilba (accused No. 7). Even so far as accused No, 3 is concerned, there is no direct talk between Anusaya and accused No, 3 which can be regarded as an inducement to her to move either from the house of Patilba or from the theatre to the room in question." But in their view the case against tile appellant "did not end with this" :

They observed.

"The evidence…………………… clearly indicates that accused No. 3 instigated Pat- ilba and Devidas to bring the girl to the theatre and thereafter to the room in question. Patilba, as we have stated, being in custody of this girl and the girl being minor and helpless, induced or forced her to go to the cinema and thereafter to this room and actually left her there. So far Patilba was concerned, he intended that she should be forced or seduced to illicit intercourse by one or the other of the accused. Accused No. 3 by asking Patilba to bring the girl to the theatre and asking Devidas and Patilba to bring the girl to the room clearly instigated Patilba in the comm- ission of this offence. He must, therefore, be held clearly guilty of the offence of abetment of this offence by Patilba."

The High Court accordingly convicted the appellant of the offence under s. 366A read with s. 109 of the Indian Penal Code, because, in their view, he had abetted the commission of an offence punishable under s. 366A by Patilba by instigating the latter to bring Anusaya to the theatre and by by further instigating Patilba and Devidas to bring Anusaya from the theatre to Bohori Kathada. In our view, the appellant cannot in law be held guilty of abetting the commission of an offence punishable under s. 366A, Indian Penal Code, by Patilba.

The facts proved by the evidence are these:

Anusaya at the material time had not attained the age of 18 years. She was brought up by Patilba and even though she had married Ram Lal she was at the material time and for many months before living under the guardianship of Patilba.

For a long time before the date of the offence Anusaya was accustomed to indulge in promiscuous intercourse with customers" for money. She used to entertain, as she herself admitted, "one or two customers every day" and bad before the date of the offence been habituated to the life of a prostitute. On the day in question she and her companion Chandrakala went to the Gulzar Theatre accompanied by Patilba. In the theatre Anusaya and Chandrakala were seeking customers: they repaired during the break in the show to the entrance of the theatre for that purpose, but she had to return disappointed because they found a police van parked near the entrance. Anusaya and the 6th accused went to Bohori Kathada for carrying on their profession as prostitutes. There is no evidence that she was not willing to go to Gulzar Theatre on the night in question nor is there any evidence that she was unwilling to go to Bohori Kathada to which she and her companion were invited for the purpose of prostitution.

Do these facts make out a case against the appellant of abetment of the offence of procuration of a minor girl punishable under s. 366A of the Indian Penal Code? Section 366A was enacted by Act XX of 1923 to give effect to certain Articles of the International Convention for the Suppression of Traffic in Women and Children signed by various nations at Paris on May 4, 1910.

There are three principal ingredients of the offence:

(a) that a minor girl below the age of 18 years is induceed by the accused,

(b) that she is induced to go from any place or to do any act, and

(c) that she is so induced with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person

The evidence clearly establishes that Anusaya had not at the material time attained the age of 18 years. But there is no evidence on the record that Patilba induced Anusaya to go to the theratre or from the theatre to Bohori Kathada. It must be assumed that when Patilba accompanied Anusaya to the theatre and from the theatre to the Bohori Kathada at the suggestion of the appellant he knew that she was going for plying her profession as a prostitute. But in our judgment a person who merely accompanies a woman going out to ply her profession of a prostitute, even if she has not attained the age of eighteen years, does not thereby commit an offence under s. 366A of the Indian Penal Code. It cannot be said that thereby he induces her to go from any place or to do any act with the intent or knowledge contemplated by the section.

We agree that seduction to illicit intercourse contemplated by the section does not mean merely straying from the path of virtue by a female for the first time. The verb "seduce’ is used in two senses. It is used in its ordinary and narrow, sense as inducing, a woman to stray from the path of virtue for the first time: it is also used in the wider sense of educing a woman to submit to illicit intercourse at any time or on any occasion. It is in the latter sense that the expression has been used in as. 366 and 366A of the Indian Penal Code which sections partially overlap.

This view has been taken in a large number of cases by the Superior Courts in India, e. g. Prafula kumar Basu v. The Emperor (1), Emperor v. Laxman Bala (1), Krishna Maharana v. The King Emperor (3), In re Khalandar Saheb (4) Suppiah v. Emperor (5), Pessumal v. Emperor (6), King Emperor v. Nga Ni Ta (7) and Kartara v. The State (8). The view expressed to the contrary in Emperor v. Baijnath (9), Saheb Ali v. Emperor (11) Aswini Kumar Roy v. The State (10) and Nara v. Emperor (12) that the phrase used in s. 366 of the Indian Penal Code is "Properly applicable to the first act of illicit intercourse, unless there be proof of a return to chastity on the part of the girl since the first act" is having regard to the object of the Legislature unduly restrictive of the content of the expression "seduce" used in the Code.

But this is not a case in which a girl who had strayed from the path of virtue when she was in the custody of her guardian and had with a view to carry on her affair accompanied her seducer or another person. Such a case may certainly fall within the terms of s.366 or s.366A whichever applies.

But where a woman follows the profession of a prostitute, that is, she is accustomed to offer herself promiscuously for money to "customers", and in following that profession she is encouraged or assisted by someone, no offence under s. 366A is committed by such person, for it cannot be said that the person who assists a girl accustomed to indulge in promiscuous intercourse for money in carrying on her profession acts with intent or knowledge that she will be forced or seduced to illicit intercourse. Intention on the part of Patilba or knowledge that Anusaya will be forced to subject herself to illicit intercourse is ruled out by the evidence: such a case was not even suggested. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Seduction implies surrender of her body by a woman who is otherwise reluctant or unwilling to submit herself to illicit intercourse in consequence of persuasion, flattery, blandishment or importunity, whether such surrender is for the first time or is preceded by similar surrender on earlier occasions. But where a woman offers herself for intercourse for money-not casually but in the course of her profession as a prostitute there are no scruples nor reluctance to be overcome, and surrender by her is not seduction within the Code. It would then be impossible to hold that a person who instigates another to assist a woman following the profession of a prostitute abets him to do an act with intent that she may or with knowledge that she will be seduced to illicit intercourse.

Appeal allowed.

(1) (1929) I. L. R. 57 Cal. 1074

(2) (1934) I. L. R. 59 Bom. 652.

(3) (1929) I. L. R. 9 Pat. 647.

(4) A. I. R. 1955 A. P. 59.

(5) A. I. R. 1930 Mad. 930.

(6) (1924) 27 Cr. L. J. 1292.

(7) (1903) 10 Burma L. R. 196.

(8) I. L. R. [1957] Punjab 2003.

(9) (1932) I. L. R. 54 All. 756.

(10) (1933) I. L. R. 60 Col. 1457

(11) A. I. R. 1955 Cal. 100.

(12) A. I. R. 1934 Lah. 227.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

WHY the gummint wants to increase the LEGAL AGE OF MARRIAGE FOR GIRLS !!!! so that father can control them more !!!

In this case a father tries to say 20yr old daughter kidnapped & files Habeas Corpus but daughter says there is NO such harassment ! Note the date of birth as per daughter !!

* Father files a Habeas Corpus saying his 18 YEAR OLD daughter !! has been kidnapped and so should be brought to court and released !!
* Daughter comes to court and says she is 19 years old !! her date of birth is 09.05.1995

* Her lovers date of birth is 15.07.1994 so he is 20 !!

* After that laddu (good news) distribution all go away !!

* the sad fact is that there are 100s of such cases every year !!!

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 15.07.2014

Coram

THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE V.S.RAVI

H.C.P.(MD) No.639 of 2014

V.Muthuraman, M/52 years
S/o.Veeranan,
Alagitchipatti,
Melur Taluk,
Madurai District. . . Petitioner
Vs.
1.The Superintendent of Police,
Madurai Rural,
Madurai District.
2.The Inspector of Police,
Karuppayoorani Police Station,
Madurai District.
3.The Sub Inspector of Police,
Kellavalavu Police Station,
Melur, Madurai.
4.Mr.Vijay @ Ragu
5.Subbaiah
6.Marimuthu . . Respondents

Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus directing the respondents to produce the body of the detenue namely Manohari, D/o.V.Muthuraman, age about 18 years before this Court and set her at liberty.

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For Petitioner : Mr.A.V.Arun
For Respondents :Mr.C.Mayilvahana Rajendran for R1 to R3
Additional Public Prosecutor
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
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:ORDER

[Order of the Court was made by V.S.RAVI, J]

Today, when the matter is called in open Court, the learned counsel for the petitioner, the petitioner, the detenue and the fourth respondent are present. The fourth respondent submitted that his date of birth is 15.07.1994. The petitioner identified the detenue. The detenue has categorically stated that there is no harassment or torture caused to her by any one and her date of birth is 09.05.1995. Recording the same, the Habeas Corpus Petition is closed.

To

1.The Superintendent of Police, Madurai Rural, Madurai District.

2.The Inspector of Police, Karuppayoorani Police Station, Madurai District.

3.The Sub Inspector of Police, Kellavalavu Police Station, Melur, Madurai.

4.The Additional Public Prosecutor Madurai Bench of Madras High Court, Madurai.

http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

BOTH PARENTS responsible for child. Silver lining though low earning hubby pays high earning wife !!

Hon Bombay HC : BOTH PARENTS are responsible for child. Silver lining in a case where a hubby with lower earnings ( Rs 35000 p.m.) pays a wife earning much more (Rs 61000/- p.m.) !!

* Wife earning Rs 61000 / pm and husband who has lost earlier job is now earning 35000 / pm
* Wife has filed DV case and got residence order at family court
* Husband seems to have terminated lease for the how
* So family court has ordered Rs 8000 in lieu of rent for alternate premesis by wife (respondent herein)
* Husband moves HC. HC Sends them to mediation, when mediation fails the case is taken up

* Husband has challenged this order on multiple grounds
*** The order u/s 19 of DV act was made before the petition u/s 12 of DV act was closed. Hon HC dismisses this contention and says residence can be granted because wife filed the residence requirement along with sec 24 HMA in family court !! So hubby has to pay moolah
*** Wife claims that she is paying Rs 9000 rent to her own brother who owns the house !! this is not true . Hon HC dismisses this contention as well saying brother need not provide free house for sister and nephew !!
*** So, at first brush, it looks like the husband with a much smaller salary has to pay the wife with a much larger salary and that is unfair !!
*** But in the course of the discussion the court has opined that BOTH parents are responsible for the upkeep of the kid. The Hon HC says "….There can be no serious doubt that the responsibility to provide for not mere maintenance but also shelter to the minor child, is equally that of both the parents. …."
*** The Hon HC continues "…….The phrase ‘having regard to financial needs and resources of the parties’ is required to be interpreted in a reasonable manner. All that the phrase requires is that the court must have due regard to both the financial needs and the resources of the parties. Therefore, in making orders under sub section (1) of section 19 of the D.V. Act, the court is not expected to impose some undue burden on any of the parties, by emphasizing disproportionately upon the needs and ignoring the aspect of resources. However, this does not mean that in a situation where one of the spouses has the resource to provide for the minor children, the other spouse ought to be completely relieved of his obligation to provide for the same. ….."

* This is a CLASSIC case that can be used by husbands who have working / earning wives !!!

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6852 OF 2013

Mr. Amit Satish Shah ..Petitioner
versus
Mrs. Archana Amit Shah & Anr. ..Respondents

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Mr. J. S. Kapre for Petitioner.
Ms. Seema Sarnaik for Respondent.
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CORAM : M. S. SONAK, J.

Date of Reserving the Judgment : 11 September 2014
Date of Pronouncing the Judgment : 14 October 2014

JUDGMENT :-

1] This petition is directed against the order dated 11 March 2013 made by the Family Court directing the petitioner to pay rent / licence fee towards the ‘share household’ i.e. flat No. B/20, Pournima Park, Salisibury Park, Pune or in the alternate to make arrangement for alternative premises for the respondent and minor child on or before the termination of the leave and licence in respect of the share household or pay an amount of Rs.8,000/- per month towards rent for acquisition of alternate premises by the respondent.

2] As of now, the respondent and the minor child have acquired alternate premises, in respect of which the respondent claims to pay rent of Rs.9,000/- per month. The petitioner disputes this position by asserting that the premises wherein the respondent now resides, are premises owned by her own brother and therefore the respondent cannot be said to be paying any rent for such premises. Besides, the petitioner points out that the respondent owns yet another premises, which she has rented out for Rs.7,000/- per month. On these grounds as also others adverted to hereafter, the learned counsel for the petitioner contends that the impugned order is liable to be interfered with.

3] Mr. Kapre, learned counsel for the petitioner, apart from making the aforesaid contentions, submitted that there is material on record which establishes that the respondent is an I.T. Professional currently earning about Rs.61,000/- per month. In contrast, the petitioner having lost his previous job, has presently taken up new employment which earns him hardly Rs.35,000/- per month. The Family Court, in making the impugned order has glossed over such relevant and vital circumstances. Further, the Family Court had no jurisdiction in making the impugned order even before the main application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (D.V. Act) could be disposed of. Mr. Kapre submitted that residence order under Section 19 of the D.V. Act can be made only whilst disposing of an application under sub section (1) of Section 12 of the D.V. Act and not prior to the same. Further, in making any residence order, the Court is required to have regard to the financial needs and resources of the parties, which in present case, the Family Court has completely disregarded. For all these reasons, learned counsel submitted that the impugned order is liable to be interfered with. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4] On the other, Ms. Sarnaik, learned counsel for the respondent submitted that the impugned order has been made in the proceedings instituted by the petitioner under Section 13 of the Hindu Marriage Act, 1955. In such proceedings, the respondent has made an application under Section 24 of the Hindu Marriage Act, 1955 read with Section 19 of the D.V. Act, which is perfectly permissible course of action to adopt. In such circumstances, there was no bar to making of a residence order under Section 19 of the D.V. Act.

5] Ms. Sarnaik submitted that the petitioner despite means and obligation, defaulted in securing the renewal of leave and licence in respect of the share household with the sole intention of harassing the respondent and their minor child. There is no basis to assume that the petitioner earns any rent from her own apartment, which incidentally is not even occupied by her and further the respondent pays rent of Rs.9,000/- to her brother, in respect of the premises which she presently occupies along with her minor son. Ms. Sarnaik further submitted that the petitioner has not only the means to pay but further obligation to pay towards the premises presently occupied by the respondent and the minor child. In so far as the respondent’s income is concerned, the same is quite irrelevant at the present stage, particularly since the impugned order does not concern the issue of maintenance. For all these reasons, she submitted that the impugned order ought not to be interfered with.

6] There is no merit in the submission that the Family Court could not have made a residence order and that such an order can be made only at the stage of final disposal of the proceedings. Section 12 of the D.V. Act enables an aggrieved person or protection officer or any other person on behalf of the aggrieved person to present an application to the Magistrate to seek one or more reliefs under the D.V. Act. One of the reliefs contemplated is in the context of right to reside in a share household. To enforce such a right, an application under Section 12 can be made by the aggrieved person as also others referred to in Section 12 of the D.V. Act, to the Magistrate. It is in this context that Section 19 of the D.V. Act provides that while disposing of an application under sub section (1) of Section 12, the Magistrate may, on being satisfied that the domestic violence has taken place pass a residence order. This is again to be read and understood in the context of provisions contained in Section 26 of the D.V. Act, which reads thus :

"26. Relief in other suits and legal proceedings.-

(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief."

7] From the aforesaid, it is evident that any relief which is available under Sections 18 to 22 of the D.V. Act from the Magistrate may also be sought in any legal proceedings, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent, whether such proceedings were initiated before or after commencement of the Act.

Sub Section (3) of Section 26 only provides that in case any relief has been obtained by the aggrieved person in any proceedings other than the proceedings under the D.V. Act, then she should be bound to inform the Magistrate of the grant of such relief or perhaps so that such relief is not obtained twice over. In the present case, as noted earlier, relief in terms of section 19 of the D.V. Act was claimed by the respondent in the proceedings before the Family Court under the Hindu Marriage Act, which is clearly permissible in the light of provisions contained in Section 26 of the D.V. Act. Section 24 of the Hindu Marriage Act, 1955 specifically empowers the parties to claim maintenance pendente lite and expenses of the proceedings. The Family Court, by virtue of Section 26 of the D.V. Act is empowered to grant reliefs, inter alia under Section 19 of the D.V. Act. In such a situation, there is no question of either making any application under Section 12 of the D.V. Act or awaiting the disposal thereof. There is no question of awaiting the disposal of the main proceedings under the Hindu Marriage Act, 1955 and only at that stage making a residence order in terms of Section 19 of the D.V. Act. If such a strained interpretation is permitted to prevail, then the very object of enabling the court to make residence orders, is likely to be frustrated. Therefore, there is no jurisdictional error in making of the impugned order.

8] In the making of a residence order, no doubt the court is required to have due regard to financial needs and the resources of the parties. In this case, there is material on record which indicates that the respondent has her own independent financial income. However, the petitioner, admittedly has to provide for the minor child. At the present stage, we are not concerned with the issue of maintenance per se. However there is nothing on record to indicate that the petitioner has been providing for any maintenance with respect to the minor child or his educational or medical needs. There can be no serious doubt that the responsibility to provide for not mere maintenance but also shelter to the minor child, is equally that of both the parents. In these circumstances, if the impugned order, requires the petitioner to bear the expenses to the extent of Rs.8,000/- per month towards providing of shelter to the respondent and the minor child, there is nothing either unreasonable or unjustified in the same. This is not a case where the Family Court has completely disregarded the financial needs and resource of the parties. The test, in all cases cannot be that if the wife is in a position to provide for the financial needs of the child her spouse is relieved altogether of his obligation to contribute to the financial needs of such child. The phrase ‘having regard to financial needs and resources of the parties’ is required to be interpreted in a reasonable manner. All that the phrase requires is that the court must have due regard to both the financial needs and the resources of the parties. Therefore, in making orders under sub section (1) of section 19 of the D.V. Act, the court is not expected to impose some undue burden on any of the parties, by emphasizing disproportionately upon the needs and ignoring the aspect of resources. However, this does not mean that in a situation where one of the spouses has the resource to provide for the minor children, the other spouse ought to be completely relieved of his obligation to provide for the same. Ultimately, it has to be borne in mind that the respondent in the present case continues to bear the expenses towards maintenance, educational and medical needs of the minor child. In these circumstances, if the impugned order, requires the petitioner to make a contribution of Rs.8,000/- per month towards the residence requirements, then there is nothing unreasonable, which warrants interference of this court in the exercise of powers of judicial review. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

9] The submission that the premises in which the respondent and the minor child presently reside is owned by the respondent’s brother and the inference therefrom that the respondent must not be paying any rent to her own brother, cannot be accepted. In any case, there is no reason to probe into this aspect any deeper. There is no legal requirement at least in the present case, that the respondent’s brother provides for the respondent and the minor child some residence gratis, so that the petitioner is relieved of his obligation to make some reasonable contribution, at least towards the residence requirements of the minor child, even if, similar claim of the wife is to be ignored at the present stage.

10] Therefore, there is no need to interfere with the impugned order. The petition is liable to be dismissed. The interim order, if any, to stand vacated. In the facts and circumstances of the present case, there shall be no order as to costs.

11] The parties were referred to mediation with a view to arrive at some amicable settlement, particularly as interest of minor child was involved. The Mediator, Advocate P. K. Gaikwad made earnest efforts as Mediator. However, the mediation did not succeed. This Court records its appreciation at the efforts of Advocate P. K. Gaikwad and further earnestly hopes that the parties make yet another attempt at amicable settlement, particularly in the interest of the welfare of the minor child.

12] With the aforesaid observations, this petition stands disposed of.

(M. S. SONAK, J.)

Chandka

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

DNA test allowed to prove, disprove infidelity. Supreme court ! Don’t attack kid, attack adultery !!

* marriage on 25.1.2003
* marriage registered on 9.2.2003
* Husband claimed that "…That since 22.09.2007 the petitioner never lived with the respondent and did not share bed at all. ….." …"…That by her extravagant life style the respondent has incurred heavy debts. …" and that "….She is leading a fast life and has lived in extra marital relationship with the said Mr. Deven Shah, a well to do person who too is a carrier gentlemen and has given birth to a child as a result of her cohabitation with Shri Deven Shah. …."
* Wife refutes these allegations
* Husband seeks DNA test of self and kid TO PROVE WIFE’S ADULTRY
* The Family Court by an order dated 27.08.2012 dismissed the prayer made by the respondent-husband, for conducting the afore-mentioned DNA test.
* Finally Supreme court allows the same
* Yes, the husband has to fight long and hard for this victory !!

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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“REPORTABLE”

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9744 OF 2014 (Arising out of SLP(C) No.5694 of 2013)


Dipanwita Roy …. Appellant

versus

Ronobroto Roy …. Respondent

J U D G M E N T

Jagdish Singh Khehar, J.

1. The petitioner-wife Dipanwita Roy and the respondent-husband Ronobroto Roy, were married at Calcutta. Their marriage was registered on 9.2.2003. The present controversy emerges from a petition filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’) by the respondent, inter alia, seeking dissolution of the marriage solemnised between the petitioner-wife and the respondent-husband, on 25.1.2003.

2. One of the grounds for seeking divorce was, based on the alleged adulterous life style of the petitioner-wife. For his above assertion, the respondent-husband made the following allegations in paragraphs 23 to 25 of his petition:

“23. That since 22.09.2007 the petitioner never lived with the respondent and did not share bed at all. On a very few occasion since then the respondent came to the petitioner’s place of residence to collect her things and lived there against the will of all to avoid public scandal the petitioner did not turn the respondent house on those occasion.

24. That by her extravagant life style the respondent has incurred heavy debts. Since she has not disclosed her present address to bank and has only given the address of the petitioner. The men and collection agents of different banks are frequently visiting the petitioner’s house and harassing the petitioner. They are looking for the respondent for recovery of their dues. Notice from Attorney Firms for recovery of due from the respondent and her credit card statements showing heavy debts are being sent to the petitioner’s address. The respondent purchased one car in 2007 with the petitioner’s uncle, Shri Subrata Roy Chowdhary as the guarantor. The respondent has failed to pay the installments regularly.

25. That the petiitoner states that the respondent has gone astray. She is leading a fast life and has lived in extra marital relationship with the said Mr. Deven Shah, a well to do person who too is a carrier gentlemen and has given birth to a child as a result of her cohabitation with Shri Deven Shah. It is reported that the respondent has given birth to a baby very recently. The respondent is presently living at the address as mentioned in the cause title of the plaint.” (emphasis is ours)

3. The above factual position was contested by the petitioner-wife in her reply wherein she, inter alia, submitted as under: “That the statements made in paragraph Nos. 5 and 6 of the plaint are admitted by the respondent to the extent that the daughter namely “Biyas” is residing in the custody of the respondent’s mother with the arrangement of the petitioner and as a result of which the petitioner used to come at his mother in law’s place and spending days therein and the respondent used to spend time with him and carrying on their matrimonial obligation which includes co-habitation.

That the statements made in paragraph No.7 in the plaint is absolutely false, concocted, untrue, frivolous, vexatious and made with the purpose of harassing the respondent and the petitioner is call upon to prove the allegation intoto. It is categorically denied by the respondent that she was a selfish person, very much concern about her own self and own affairs and without any concern for the petitioner as alleged. The respondent further denied that she was self willed, arrogant and short tempered and she used to fly into rage every now and then over small matter and used to quarrel with the petitioner and his mother as alleged. The respondent further denied and disputes that she used to go out every now and then according to her whims without informing either the petitioner and his mother as alleged. That the respondent further denies and disputes that she failed to disclose her whereabouts and used to stay out for long hours as alleged. The respondent further denies and disputes that she does not care little for the feelings of either the petitioner or his mother as alleged. The respondent further denies and disputes that she got extremely irritated and used to quarrel with the petitioner whenever the petitioner tried to speak to her as alleged.

That the statements made in paragraph 23 in the plaint are absolutely imaginative, concocted and false and the same are being made for the purpose of this case. The respondent denies and disputes in its present form the statement they lead an extravagant life style and thereby she incurred debts as alleged therein and the respondent provided her matrimonial house address to the bank as because the same is her permanent address after her marriage. The respondent denies and disputes the statement that men and collection agent of different banks were frequently visiting the petitioner’s house and harassing the petitioner and they are looking for the respondent for recovery of dues as alleged therein. The respondent is to state and submit that many a times at the behest of the petitioner she used to purchase many things for him and spent lot of money while attending dinner and lunch at clubs and restaurants with the petitioner. The respondent is to further state and submit on repeated insistence of the petitioner the respondent purchased a car on credit for accommodating herself smooth journey at her office work as well as for other places and in such event the petitioner promised that he would pay 50% of the EMI in respect of purchase of the car which is actually failed to contribute. It is needless to mention that the respondent had incurred some debts due to financial recession in consequences of which she lost her job and as a result of that she failed to make payment of her outstanding to the bank in spite of her willingness although her parents extended their helpful hands to accommodate her which could enable to come out from the debts but the petitioner is such situation kept himself silent.

That the statements made in paragraph no.24 in the plaint are false, untrue, frivolous and concocted and the same are being made with a malafide intention for degrading and harassing the respondent in the eye of society in order to get the divorce from her. The respondent strongly denies and disputes the statement that she is leading a fast life in extra marital relationship with one Mr. Deven Shah and she had given a birth of a child as a result of cohabitation with Shri Deven Shah as alleged. The respondent further denies and disputes the statement that she ever live in the address mentioned in the case title in the plaint as alleged and the petitioner is call upon to prove the statements into.

The respondent is to state and submit that she had no extra marital relationship with one Mr. Deven Shah. It is pertinent to mention that the respondent is having a continuous matrimonial relationship with the petitioner and the petitioner too performed the matrimonial relation to as well as the cohabitation with the respondent in great spirit and as a result of which a male chid was born. At this stage raising question regarding birth of the child would actually put adverse effect not only towards the family but also towards of the mind of the tender aged child and this unscrupulous attitude is actually goes against the concept of welfare of the child.” (emphasis is ours)

A perusal of the written statement filed on behalf of the petitioner-wife reveals that the petitioner-wife expressly asserted the factum of cohabitation during the subsistence of their marriage, and also denied the accusations levelled by the respondent-husband of her extra marital relationship, as absolutely false, concocted, untrue, frivolous and vexatious.

4. In order to substantiate his claim, in respect of the infidelity of the petitioner-wife, and to establish that the son born to her was not his, the respondent-husband moved an application on 24.7.2011 seeking a DNA test of himself (the respondent-husband) and the male child born to the petitioner-wife. The purpose seems to be, that if the DNA examination reflected, that the male child born to the petitioner-wife, was not the child of the respondent-husband, the allegations made by the respondent-husband in paragraphs 23 to 25 of the petition, would stand substantiated.

The petitioner-wife filed written objections thereto, categorically asserting, that the factual position depicted in the application filed by the respondent-husband was false, frivolous, vexatious and motivated. It was asserted that the allegations were designed in a sinister manner, to cast a slur on the reputation of the petitioner-wife. The petitioner-wife strongly denied and disputed the statement made at the behest of the respondent-husband to the effect, that she was leading a fast life in extra marital relationship with Mr. Deven Shah, and had given birth to a child as a result of her cohabitation with the said Mr. Deven Shah. She also asserted, that she had a continuous matrimonial relationship with the respondent-husband, and that, the respondent-husband had factually performed all the matrimonial obligations with her, and had factually cohabited with her. The petitioner-wife accordingly sought the dismissal of the application filed by the respondent-husband, for a DNA test of himself and the male child born to the petitioner-wife. The respondent-husband filed a reply affidavit reiterating the factual position contained in the application, and thereby also repudiating the assertions made by the petitioner-wife in her written objections.

5. The Family Court by an order dated 27.08.2012 dismissed the prayer made by the respondent-husband, for conducting the afore-mentioned DNA test.

6. Dissatisfied with the order passed by the Family Court on 27.8.2012, the respondent-husband approached the High Court at Calcutta (hereinafter referred to as the ‘High Court’) in its civil revisional jurisdiction by filing CO No.3590 of 2012 under Article 227 of the Constitution of India.

The High Court allowed the petition filed by the respondent-husband vide an order dated 6.12.2012. The operative part of the impugned order dated 6.12.2012 is being extracted hereunder:

“CO No.3590 of 2012 is disposed of by setting aside the order impugned and by directing the DNA test of the son of the wife to be conducted at the Central Forensic Science Laboratory on December 20, 2012. The wife will accompany her son to the laboratory at 11 am when the petitioner herein will also be present and the DNA samples of the child and the husband will be obtained by the laboratory in presence of both the husband and wife. The expenses for the procedure will be borne by the husband and the result will be forwarded by the laboratory as expeditiously as possible to be husband, the wife and the trial Court. The expenses for such purpose will be obtained in advance by the laboratory from the husband.

In addition, prior to December 20, 2012 the husband will deposit a sum of Rs.1 lakh with the trial court which will stand forfeited and made over to the wife in the event the paternity test on the basis of the DNA results shows the husband to be the father of the child. In the event the result reveals that the petitioner is not the father of the child, the money will be refunded by the trial Court to the petitioner herein.

The wife has sought to file an affidavit, but such request has been declined. The wife seeks a stay of operation of this order, which is refused. CO No.3590 of 2012 is disposed of without any order as to costs.

A copy of this order will immediately be forwarded to the laboratory by the husband such that the laboratory is ready to obtain the DNA sample on the specified date.”

(emphasis is ours)

Aggrieved with the order passed by the High Court on 6.12.2012, the petitioner-wife has approached this Court by filing the instant special leave petition. Notice was issued by this Court on 15.2.2013. The respondent-husband has entered appearance. Pleadings are complete.

7. Leave granted.

8. Learned counsel for the appellant-wife, in the first instance, invited our attention to Section 112 of the Indian Evidence Act. The same is being extracted hereunder:

“112. Birth during marriage, conclusive proof of legitimacy- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

Based on the aforesaid provision, learned counsel for the appellant-wife drew our attention to decision rendered by the Privy Council in Karapaya Servai v. Mayandi, AIR 1934 PC 49, wherein it was held, that the word ‘access’ used in Section 112 of the Evidence Act, connoted only the existence of an opportunity for marital intercourse, and in case such an opportunity was shown to have existed during the subsistence of a valid marriage, the provision by a fiction of law, accepted the same as conclusive proof of the fact that the child born during the subsistence of the valid marriage, was a legitimate child.

It was the submission of the learned counsel for the appellant-wife, that the determination of the Privy Council in Karapaya Servai’s case(supra) was approved by this Court in Chilukuri Venkateshwarly vs. Chilukuri Venkatanarayana, 1954 SCR 424. Learned counsel for the appellant-wife also invited our attention to a decision rendered by this Court in Goutam Kundu vs. State of West Bengal and another, (1993) 3 SCC 418, wherein this Court, inter alia, held as under:

“(1) That Courts in India cannot order blood test as a matter of course.

(2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.

(4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give samle of blood for analysis.”

Reliance was also placed on the decision rendered by this Court in Kamti Devi and another v. Poshi Ram, AIR 2001 SC 2226, wherefrom, the following observations made by this Court, were sought to be highlighted:

“10. But Section 112 itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. Normally, the rule of evidence in other instances is that the burden is on the party who asserts the positive, but in this instance the burden is cast on the party who pleads the negative. The raison d’etre is the legislative concern against illegitimatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents.

11. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleric Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g., if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from thepoint of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.

12…..Its corollary is that the burden of the plaintiff-husband should be higher than the standard of preponderance of probabilities. The standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff-husband. “

(emphasis is ours)

Lastly, learned counsel for the appellant-wife, placed reliance on the decision rendered by this Court in Sham Lal @ Kuldeep vs. Sanjeev Kumar and others, (2009) 12 SCC 454, wherein it was inter alia, held as under: “Once the validity of marriage is proved then there is strong presumption about the legitimacy of children born from that wedlock. The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt. Even the evidence of adultery by wife which though amounts to very strong evidence, it, by itself, is not quite sufficient to repel this presumption and will not justify finding of illegitimacy if husband has had access. In the instant case, admittedly the plaintiff and Defendant 4 were born to D during the continuance of her valid marriage with B. Their marriage was in fact never dissolved. There is no evidence on record that B at any point of time did not have access to D.”

(emphasis is ours)

It was, therefore, the vehement contention of the learned counsel for the appellant-wife, that the impugned order passed by the High Court directing, holding of a DNA test, of the respondent-husband and the male child born to the appellant-wife, may be set aside.

9. All the judgments relied upon by the learned counsel for the appellant were on the pointed subject of the legitimacy of the child born during the subsistence of a valid marriage. The question that arises for consideration in the present appeal, pertains to the alleged infidelity of the appellant-wife. It is not the husband’s desire to prove the legitimacy or illegitimacy of the child born to the appellant. The purpose of the respondent is, to establish the ingredients of Section 13(1)(ii) of the Hindu Marriage Act, 1955, namely, that after the solemnisation of the marriage of the appellant with the respondent, the appellant had voluntarily engaged in sexual intercourse, with a person other than the respondent. There can be no doubt, that the prayer made by the respondent for conducting a DNA test of the appellant’s son as also of himself, was aimed at the alleged adulterous behaviour of the appellant. In the determination of the issue in hand, undoubtedly, the issue of legitimacy will also be incidentally involved. Therefore, insofar as the present controversy is concerned, Section 112 of the Indian Evidence Act would not strictly come into play. A similar issue came to be adjudicated upon by this Court in Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633, wherein this Court held as under:

“21. In a matter where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception.

22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test.

23. There is no conflict in the two decisions of this ourt, namely, Goutam Kundu vs. State of West Bengal (1993) 3 SCC 418 and Sharda vs. Dharmpal (2003) 4 SCC 493. In Goutam Kundu, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda, while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prime facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course.

24. Insofar as the present case is concerned, we have already held that the State Commission has no authority, competence or power to order DNA test. Looking to the nature of proceedings with which the High Court was concerned, it has to be held that the High Court exceeded its jurisdiction in passing the impugned order. Strangely, the High Court overlooked a very material aspect that the matrimonial dispute between the parties is already pending in the court of competent jurisdiction and all aspects concerning matrimonial dispute raised by the parties in that case shall be adjudicated and determined by that court. Should an issue arise before the matrimonial court concerning the paternity of the child, obviously that court will be competent to pass an appropriate order at the relevant time in accordance with law. In any view of the matter, it is not possible to sustain the order passed by the High Court. “ (emphasis is ours)

It is therefore apparent, that despite the consequences of a DNA test, this Court has concluded, that it was permissible for a Court to permit the holding of a DNA test, if it was eminently needed, after balancing the interests of the parties. Recently, the issue was again considered by this Court in Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and another, (2014) 2 SCC 576, wherein this Court held as under:

“15. Here, in the present case, the wife had pleaded that the husband had access to her and, in fact, the child was born in the said wedlock, but the husband had specifically pleaded that after his wife left the matrimonial home, she did not return and thereafter, he had no access to her. The wife has admitted that she had left the matrimonial home but again joined her husband. Unfortunately, none of the courts below have given any finding with regard to this plea of the husband that he had not any access to his wife at the time when the child could have been begotten.

16. As stated earlier, the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl child. However, at the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 112 of the Evidence Act conclusively prove that Respondent 2 is the daughter of the appellant. At the same time, the DNA test reports, based on scientific analysis, in no uncertain terms suggest that the appellant is not the biological father. In such circumstances, which would give way to the other is a complex question posed before us.

17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. The interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

18. We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However, a presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.

19. The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardised as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice.”

(emphasis is ours)

This Court has therefore clearly opined, that proof based on a DNA test would be sufficient to dislodge, a presumption under Section 112 of the Indian Evidence Act.

10. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik (supra), that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegation(s), which constitute one of the grounds, on which the concerned party would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril.

11. The question that has to be answered in this case, is in respect of the alleged infidelity of the appellant-wife. The respondent-husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person, who was the father of the male child born to the appellant-wife. It is in the process of substantiating his allegation of infidelity, that the respondent-husband had made an application before the Family Court for conducting a DNA test, which would establish whether or not, he had fathered the male child born to the appellant-wife. The respondent feels that it is only possible for him to substantiate the allegations levelled by him (of the appellant-wife’s infidelity) through a DNA test. We agree with him. In our view, but for the DNA test, it would be impossible for the respondent-husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court, as has been extracted hereinabove, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so.

12. We would, however, while upholding the order passed by the High Court, consider it just and appropriate to record a caveat, giving the appellant-wife liberty to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the respondent-husband, against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof. Section 114 as also illustration (h), referred to above, are being extracted hereunder:

“114. Court may presume existence of certain facts – The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustration (h) – That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him.”

This course has been adopted to preserve the right of individual privacy to the extent possible. Of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112 of the Indian Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved.

13. The instant appeal is disposed of in the above terms.

****************************J. (Jagdish Singh Khehar)

****************************J. (R.K. Agrawal)

New Delhi;

October 15, 2014.

*****************

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist