Daily Archives: January 17, 2012

FALSE 498a case and quash thereof … decades ago !!

 

FALSE 498a case and quash thereof … decades ago !!

Rajasthan High Court

J. Om Prakash vs State Of Rajasthan on 23 February, 1988

Equivalent citations: 1988 (1) WLN 510

Author: N Kasliwal

Bench: N Kasliwal

JUDGMENT

N.M. Kasliwal, J.

1. The petitioner by this petition under Section 482, Cr. PC, has sought to quash the proceedings in Criminal Case No. 7/1987 pending in the Court of judicial Magistrate No. 4, Jaipur, against him.

2. Brief facts of the case are that one Madhusudan was married to Mst. Manju D/o Peshori Lal Babbar in October, 1983. On December 15, 1985, Mst. Manju died by burning. Madhusudan reported the matter to Adarash Nagar Police Station, Jaipur. On this information, Adarsh Nagar Police Station registered the case and started investigation. During the investigation, the statements of the parents of Mst. Manju were also recorded. The parents made statements that they did not suspect any foul play. The police submited a report that the case was of suicide. Subsequently, at the instance of father of Mst. Manju, the case was referred to CID, Jaipur for further investigation. The case was registered as FIR No. 98/1986 under Sections 306 & 498A, IPC. While the case was being investigated by the CID, a private complaint was filed by the father of Mst. Manju against Madhusudan and other under Sections 302, 306, 498A & 120B IPC in the court of Judicial Magistrate No. 13, Jaipur City, Jaipur. The case was then transferred to the court of Judicial Magistrate No. 4, Jaipur City. The learned Magistrate by order dated November 15, 1987 took cognizance of the offences under Section 302/498A/120B IPC against the petitioner and four other accused persons and issued non bailable warrants. The petitioner J. Om Prakash, one of the accused persons, has filed petition for quashing the proceedings against him.

3. The case of the petitioner is that he has been impleaded as one of the accused persons, wrongfully, maliciously and illegally by suppressing material facts. The case of the petitioner he is that is carrying on business of producing cinematograph films in Bombay since 1959. As producer and director of cinematograph films the petitioner has earned a good name and fame in the film trade in particular and in general. The petitioner has further alleged that Shri Peshori Lal father of Mst. Manju had issued a letter dated December 26, 1985, to various parties and authorities in which he made defamatory statements against the petitioner in connection with the death of Mst Manju. In order to connect the petitioner with the death of Mst. Manju, Peshori Lal made false, incorrect, and vexatious statements that Mst. Manju resided in the company of 5 persons including the petitioner. This circular letter was published widely with a view to defame the petitioner. Shri Peshori Lal also gave an interview to a journalist, which appeared in an issue dated February 1, 1986 of the paper ‘DINMAN’. According to the petitioner, the statement appearing in the said article was per se defamatory of the petitioner. The petitioner, therefore, filed a criminal case against Peshori Lal and the journalist under Section 500 read with Section 34 IPC in the Court of Additional Metropolitan Magistrate (Esplanade) Court on or about February 20, 1986. Before filing the said complaint the petitioner also served a notice dated February 5, 1986 on Peshori Lal. Peshori Lal sent a reply of the aforesaid notice through his advocate. According to the petitioner, neither the circular letter dated December 26, 1985, nor the reply sent by Peshori Lal established any acts leading to the establishment of any conspiracy which would have remotely involved the petitioner with the death of Manju.

4. It has been further alleged that Peshori Lal filed a transfer application on September 17, 1986 in the Supreme Court for transferring the criminal case lodged by the petitioner from the Court of Bombay to the Court of Delhi. The said transfer application came to be dismissed by the Supreme Court. In the transfer application Peshori Lal had clearly stated that his daughter resided with her husband and father-in-law at Jaipur. It was no where stated that the petitioner ever stayed in Jaipur. In one of the paragraphs in the transfer application it was stated as under:

Further facts relating to the case are that the murder of Manju, the daughter of the Non-petitioner No. 2, married the petitioner No. 1 living in the family of the petitioners Nos. 2 & 3 at Jaipur and it took place on the night of December 14, 1985 when at the time Shri J. Om Prakash was staying in Hotel Ashoka New Delhi.

The reference to the petitioners Nos. 2 & 3 are of Shri Chaman Lal Soorma and Madhusudan Soorma father-in-law and husband of deceased Manju. It has been submitted by the petitioner that in the said transfer application there was no mention of any overt act of conspiracy attributted to or alleged against the petitioner in connection with the death of Manju. On the contrary, in the said transfer application Shri Peshori Lal in turn stated that the offence of murder if, any, has been committed by the non-petitioner Nos. 2 & 3 and not by the petitioner. The exact words used by Peshori Lal in the transfer applications read as under:

There has been thus a consistent fear in the mind of the petitioner who had already lost young daughter Manju of about 2 years of age in the prime of her life in this shock of death committed on account of murder by respondents Nos. 2 & 3 was undesirable.

The petitioner has further alleged that Peshori Lal was aware that the name of the petitioner did not figure in the investigation carried out by the CID, Crime Branch. Thus, getting frustrated with the result of investigation Shri Peshori Lal filed a false complaint involving the petitioner falsely and in abuse of the process of the court. Even perusal of the complainant flirt by Peshori Lal would show that the petitioner has been impleaded and involved in the matter maliciously and with dishonest ulterior motives. The main allegation contained in the complaint against the petitioner has been summarised as under:

That on 29-9-1985 the complainant celebrated the marriage of his last daughter and invited his daughter Manju. At that time she even told that the accused No. 5 has come to Jaipur many times and he also harassed her along with the other accused. Accused No. 5 told the other accused that this girl is not worthy of your family because she has no child and, therefore, it is better to get rid of this girl and marry accused No. 1 to some other girl. Hearing these things the complainant and his wife became very panickly and worried and gave Manju F.D. Receipt of Rs 5,000/- in her name.

(b) That on 15-12-1985 at about 9.15 a.m. in the morning a telephone call came from Jaipur informing that Manju was seriously ill and that she has been admitted to hospital. After a little while accused No. 5 who was staying at Delhi telephoned me and told me that Manju was dead.

It has been submitted by the learned Counsel for the petitioner that even the above allegations do not constitute any offence against the petitioner under Sections 302, 306, 498A & 120B, IPC. It has been submitted that the petitioner, has been impleaded with an ulterior motive to bring undue pressure upon him so that he may withdraw the criminal complaint of defamation pending in the court of Metropolitan Magistrate, Bombay. It has been submitted that even if the material placed on record is taken at its face value, unrebutted and unmpeached even then no case is made out for taking cognizance and issuing process against the petitioner. It has been further argued that there is no legally admissible evidence against the petitioner placed on record and the witnesses have merely narrated the incident on the basis of hear-say. It was also argued that the whole case against the petitioner gets demolished in view of the stand taken by Peshori Lal before the Supreme Court where in it was categorically asserted that on December 14, 1985 the petitioner was staying in Hotel Ashoka. New Delhi. It was also submitted that merely because the petitioner was brother-in-law (gainer side) of Chaman Lal Soorma (father-in-law of Manju) he has been falsely implicated as he was influential person. The petitioner is living at Bombay and engaged in the production and direction of film and was not even present at Jaipur in the fateful night and there is no iota of evidence worth the name to involve the petitioner in any conspiracy of the death of Mst. Manju.

5. It was also argued by the learned Counsel for the petitioner that in the statements of Peshori Lal and Smt. Sheela (mother of Mst. Manju) recorded on December 16, 1985 they clearly stated that they did not suspect any foul play in the death of Manju. In the statement recorded on December 16, 1985, Peshori Lal clearly stated that they had no difference or quarrels or any misunderstanding with the in-laws of Manju, on any account what so ever and never their daughter Manju complained about her-in laws. He further stated that on December 15, 1985 in the morning at about 9.30 he he received an information on telephone that Manju was not well and that she had been admitted in the hospital and he was asked to come down immediately. He sent his wife Sheela Devi by bus to Jaipur and he along with other relations reached Jaipur in the night and on reaching at Manju’s in laws they came to know that Manju has burnt herself to death. Peshori Lal further stated that there had never been any talk about dowry between them and Manju’s in-laws. Manju also never complained about the dowry to them. It was further submitted that not a single neighbouring witness came forward during investigation to show any incriminating circumstance against the accused persons. It was submitted that though a mention was made with regard to the letter of Mst. Manju dated December 6, 1985, giving a vital clue of the confirmed plea of killing of Manju by Soorma family, but no such letter has been produced during investigation or in support of the complaint filed by Peshori Lal. The story regarding such letter is totally baseless and imaginary and has been made out merely in order to prejudice the court. It has been submitted that there is not a single letter of Manju produced on record to show any ill-treatment, torture or demand of any dowry from the side of the accused-persons.

6. It was also argued by the learned Counsel for the petitioner that so far as the petitioner J. Om Prakash is concerned, no allegation what so ever regarding any instigation to Soorma family to commit murder of Mst. Manju was ever stated by Peshori Lal in his first statement recorded by the police on December 16, 1985 or in the complaint made to Hon’ble Minister of State, Transport and Civil Aviation, Government of India dated December 24, 1985 or even in the written complaint sent through Shri K.A. Diwan, Advocate, Delhi to the Station House Office r, Police Station, Adarsh Nagar, Jaipur, on December 26, 1985. It was thus submitted that it was only in the present complaint filed as late as on January 5, 1987 that a new twist has been given to the entire case that Mst. Manju had told that the petitioner had come to Jaipur many times and he also harassed her along with other accused. Mst. Manju also told that the petitioner told the other accused that Mst. Manju was not worthy of their family because she had no child and, therefore, it was better to get rid of this girl and marry Madhusudan with some other girl. It was submitted that no such case was ever set up or stated by Peshori Lal at any stage in his several statements recorded by the police during investigation or even in the written complaints filed by Peshori Lal to various Ministers and higher authorities. It was thus argued that the allegation with regard to any involvement or instigation by the petitioner was made in the private complaint filed by Peshori Lal dated January 5, 1987 merely in order to put pressure on the petitioner to withdraw the criminal complaint for defamation already lodged by the petitioner in the court at Bombay against Peshori Lal. It was thus submitted that when there was no material on record to establish even prima facie case against the petitioner, it would be great harassment and injustice to face the trial.

7. Mr. Shital Das, appearing on behalf of the complainant Peshori Lal, vehemently submitted that this Hon’ble Court should not go into the merits of the case at this stage. It was submitted that the petitioner was not only the brother-in-law of Chaman Lal Soorma, but his elder brother’s son has also been married to Sneh Lata another daughter of Peshori Lal It was submitted that any defence story set up by the petitioner cannot be considered at this stage and there was enough material to take cognizance against the petitioner also. Raliance was also placed on Smt. Nagawwa v. Veeranna Shivalingappa Kanjalgi and Ors. in support of the above contention.

8. It was also argued by Mr. Shital Das that the complaint even though was filed after a long time, but there was no bar of limitation and complaints have been entertained even after a lapse of more than 4 years. Reliance in this regard was placed on Ratansingh v. Kusum and Ors. 1984(1) Crimes 690. It was further argued that it was not necessary to lead any direct evidence for proving any conspiracy of the petitioner in such a heinous crime. It was difficult to lead any direct evidence in order to prove conspiracy which is alway shrouded in mystery and it can be gathered from other indirect but connecting circumstances. The petitioner did not attend the funeral of Manju but informed regarding her death Peshori Lal at Delhi and these circumstances also showed that he was in league and conspiracy with Soorma family in order to commit the murder of Mst. Manju.

9. It was further argued by Mr. Shital Das that it is settled law that the question at this stage is not whether there was any truth in the allegations made, but the question is whether on the basis of allegations cognizable offence has been alleged to have been committed taking all the allegations in the complainant to be true without adducing or substracting anything. At this stage it cannot be said that no prima facie case for trial had been made out. This Hon’ble Court is not concerned at this stage with the truth or otherwise of the allegations made in the complaint which would only be investigated at the time of the trial. It is further submitted that in the complaint it has been mentioned that the petitioner several times came over to Jaipur from Bombay at the house of other co-accused persons and hatched conspiracy with other co-accused persons for murdering Smt. Manju and getting rid of her. It has been further alleged in the complaint that all the accused used to humiliate and harass Smt. Manju for demand of dowry. It has been further alleged in the complaint that on the fateful day (December 15, 1985) of occurrence of death of Smt. Manju the petitioner was staying at Delhi. Other co-accused persons on telephone intimated that Mst. Manju was seriously ill and was admitted in hospital. The petitioner telephoned that Smt. Manju bad expired. Thus from this circumstance also conspiracy is clearly proved for killing Smt. Manju as the petitioner was very well knowing the fact that Mst. Manju was dead. There is also an allegation that all the accused persons including the petitioner used to torture and give beating to deceased Manju for demanding dowry. It was also argued that statements of Smt. Sheela Rani, Peshori Lal and Naresh Babbar have been recorded during inquiry under Section 200 Cr.PC and from the statements of these witnesses a clear prima facie case of conspiracy is established against the petitioner. It has been further argued that the statements of Peshori Lal and other witnesses recorded by the police during investigation at various stages and documents produced during investigation cannot be taken into consideration for taking cognizance on the private complaint now filed by Peshori Lal. It is argued that in Smt. Nagawwa’s case (supra) it has been held that at that stage of issuing process, Magistrate is mainly concerned with the allegations made in the complaint of the evidence led in support of the complaint.

10. I have given my careful consideration to the arguments advanced by learned Counsel for the parties and have throughly perused the record.

11. There can be no dispute in the proposition of law that at this stage the Court is not concerned whether there was any truth or not in the allegations made and has to only consider whether on the basis of the allegations any cognizable offence has been made out or not. At the same time, if it is found from the admitted facts of the case and the material placed on record that there is no iota of evidence or any person has been involved with ulterior motive in order to harass him or to put undue pressure for some ulterior object then this Court should invoke its inherent powers in protecting such person from the ageny and harassment of the trial.

12. In the present case I am only concerned with the allegations against the petitioner and not with regard to other accused-persons. So far as the petitioner is concerned, he is admittedly a permanent resident of Bombay. The petitioner was not in Jaipur on December 14 or 15, 1985, when the unfortunate death of Manju took place. The petitioner is not a member of Soorma family where Smt. Manju was married to Madhusudan. It is no doubt correct that the petitioner is closely related to Soorma family, The petitioner is alleged to be brother-in-law (gainer side) of Chaman Lal father-in-law of Smt. Manju. Another relation of the petitioner is that his elder brother’s son has been married to Smt. Sneh Lata elder sister of Mst. Manju. Other admitted facts of the case are that soon after the death of Smt. Manju, Adarsh Nagar, Police Station, Jaipur investigated the matter and in the statements of Shri Peshori Lal and Smt. Sheela Rani recorded on December 16, 1985 no allegation what so ever was made against the petitioner. Not only that it was stated by Peshori Lal and Smt. Sheela Rani that they suspected no foul play in the death of Smt. Manju and there was never any talk about dowry between them and Manju’s-in-laws. Even Manju never complained them about any dowry. Peshori Lal thereafter submitted a written complaint on December 24, 1985 to the Hon’ble Minister for State, Transport allegation of any conspiracy was alleged against the petitioner. The only fact which may be relevant in this regard connecting the petitioner was that the applicant received a telephonic message on December 15, 1985 at 9.20 a.m. from Jaipur that Manju was seriously ill and was admitted in hospital. The applicant tried to confirm the new. At 10.30 a.m. or so there was a telephonic message from Shri J. Om Prakash (petitioner) from Bombay informing that Manju was dead. In the above application the entire allegation was against Shri Madhusudan, his parents Chaman Lal Soorma and Smt. Swarna, his sister Smt. Madhu Kapoor and his friend Shri Ashok. Thereafter, a written complaint by registered post was sent to the Statian House Officer, Police Station, Adarsh Nagar, Jaipur on December 26, 1985 through K.A Diwan, Advocate, Delhi. For the first time in this complaint name of the petitioner J. Om Prakash was also added and it was alleged that Shri J. Om Prakash while boarding and lodging in Ashoka Hotel, New Delhi intimated the complainant for the first time at about 11 a.m. the death of Manju. It was further alleged that all the accused persons in the act of their criminal conspiracy and in furtherance to their common intention to kill Manju and to usurp all the valuables and the dowry items and with further intention of Shri Madhusudan to remarry and to settle him in Bombay and to have more lust of money and to ignore the married wife Manju, a conspiracy was hatched. It is important to note that Peshori Lal also submitted a complaint in writting to Mrs. Kiran Bedi, Deputy Commissioner of Police, Delhi on December 26, 1985 in which J. Om Prakash was also named but the only allegation against him was that at about 11 a.m. on December 15, 1985, Peshori Lal received a telephone call from Shri J. Om Prakash informing him that Smt. Manju was dead. It was understood that Shri J. Om Prakash was staying in room No. 648 in Hotel Ashoka, New Delhi. The other allegat ons were almost identical with the allegations made in the complaint sent through K A. Diwan, Advocate. Then there is a letter written by Smt. Sneh Lata from Jabalpur to her father Shri Peshori Lal on January 27, 1986. The contents of this letter cleary show that the petitioner was falsely implicated in the case. Thereafter, registered notice was given by Dr. C.K Jaisinghani, Advocate, Bombay on behalf of the petitioner J. Om Prakash to Shri Peshori Lal on February 5, 1986 to stop the campaign of vilification against the petitioner and to withdraw the allegations made against him and tender an unqualified apology in that regard. It was further mentioned in the above letter that if no satisfactory reply was received within a period of 7 days, his client (petitioner) will be constrained to take appropriate action in the matter to vindicate his honour reputation and character. On December 16, 1986, a reply was sent of the above notice by Peshori Lal through his Advocate Shri Diwan. During investigation statement of Peshori Lal was again recorded on February 7, 1986 by the Police Inspector and countersigned by Deputy Superintendent, CID (CBI) In this statement Peshori Lal stated that he had signed the statement dated December 16, 1985 to avoid any dispute with Soorma family. That statement was not read to him and he did not know Hindi. He only knows Urdu and English. In any case, no allegation worth the name has been stated against the petitioner of having any conspiracy in the alleged crime. Then again statement of Peshori Lal was recorded on March 12, 1986 and again on August 8, 1986 and in these statements also there is no allegation of any conspiracy of the petitioner It is also admitted fact that the CID police gave a final report in the case holding that it was a case of suicide. The petitioner filed a complaint of defamation against Peshori Lal at Bombay and thereafter the present complaint has been filed by Peshori Lal on January 5, 1987. Thus the entire allegation of conspiracy against the petitioner was introduced much late in the present complaint dated January 5, 1987 which has been lodged after nearly 13 months of the incident and that also after the filing of the complaint for defamation against the complainant Peshori Lal. Admittedly, there is no documentary evidence to connect the petitioner with alleged crime and even in the complaint and in the statements recorded during preliminary inquiry under Sections 200 & 202 Cr.PC there is a general allegation of conspiracy against the petitioner. There is no evidence worth the name of any neighbouring person at Jaipur to show that the petitioner ever came to Jaipur and any connection what so ever with the alleged demand of dowry by Soorma family. Thus, I am clearly of the opinion that in view of the statements given by Peshori Lal from time to time during investigation as well as in the written complaints, to higher authorities till the matter was consulted with Diwan no circumstances or allegation was made even remotely to connect the petitioner in the alleged conspiracy of the murder of Smt. Manju. I do not agree with the contention of the learned Counsel for the complainant that such statements given by Peshori Lal during investigation cannot be considered at all and only allegations made in the complaint and the statements recorded during the inquiry under sections 200 and 202 Cr.PC can only be looked at this stage. It is not only in the initial statement given by Peshori Lal on December 16, 1985, to the police but even in other statements given subsequently to the CID Police no allegations worth the name of any conspiracy of the petitioner has been stated. That apart, as already mentioned above, the petitioner is living at Bombay, he is not a member of Soorma family, he was not present in Jaipur in the fateful night and the only circumstance conspiracy which was alleged initially was that he informed on telephone from Ashoka Hotel Delhi to Peshori Lal that Smt. Manju was dead. Thus in the face of above circumstances it would be a clear harassment and injustice to face the agony of trial by the petitioner for charges under Section 302/306/498A and 120B, IPC along with the other accused persons. Thus, in my view the learned Magistrate committed a serious error in taking cognizance against the petitioner and the order passed by the learned Judicial Magistrate No. 4, Jaipur City, Jaipur dated Dec. 15, 1987, taking cognizance so far as the petitioner (J. Om Prakash) is concerned, is quashed. It is made clear that none of the observations made in this order effect the trial of the case against the other accused persons.

source :
http://www.indiankanoon.org/doc/1747728/

NRI Hubby Accused of contempt, 498A, 500, 501 does NOT appear for approx 9 years !!! No extradition possible !!

 

NRI Hubby Accused of contempt, 498A, 500,  501 does NOT appear for approx 8 years !!! No extradition possible !!

 

“……For the above mentioned reasons, I am of the considered opinion that no useful purpose will be served by keeping the present proceedings pending before this Court as the offence of which the defendant has been found guilty could not be said to be an ‘extraditable offence’ and accordingly the matter is adjourned sine die with liberty to the plaintiff to revive the same as and when the defendant is extradited in respect of any other extraditable offence where he is facing trial and steps have been taken by the Govt. of India to procure his attendance under the extradition treaty. No order as to cost…….”

Delhi High Court

Smt. Anubha vs Sh.Vikas Agrawal on 4 July, 2011

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) NO.1966/1999

Date of Decision : 04.07.2011

SMT. ANUBHA …… Plaintiff Through: Mr.Rajat Aneja, Adv.
Versus
SH.VIKAS AGRAWAL …… Defendant Through: Mr. Sachin Datta, Adv.

CORAM :

HON’BLE MR. JUSTICE V.K. SHALI

1. Whether Reporters of local papers may be allowed to see the judgment? YES

2. To be referred to the Reporter or not ? YES

3. Whether the judgment should be reported in the Digest ? YES V.K. SHALI, J.

IA No. 4197/2004 (contempt)

1. The question involved in the present contempt application is whether the proceedings for execution of contempt order passed against the defendant should be monitored by this Court or should the proceedings of the present contempt case be adjourned sine die till the time the defendant is extradited to face the trial in respect of other connected extraditable matters which are purportedly pending against him in the District Court of Gautam Budh Nagar(UP). Before deciding the said question, it would be pertinent here to give the brief background of the case.

2. The plaintiff got married to the defendant Mr.Vikas Agrawal, a Non-Resident Indian (NRI) on 11.5.99 according to Hindu rites and ceremonies. The defendant was a Non-Resident Indian at the time of marriage residing at 29, Woodlawn Avenue, Ansonia, Connecticut-06401 (USA) and was a HBI-4 Visa Holder. He was employed as a software Engineer with M/s CAPITAL ONE at 11011, West Broad Street, Glen Allen, Virginia-23060 (USA).

3. The present plaintiff went to USA, however, on account of temperamental incompatibility, the marriage could not last and she came back to India and instituted the present suit seeking declaration that she is entitled to live separately and it was also prayed that a permanent decree of maintenance in her favour and against the defendant for a sum of US$1500 per month or `65,250/- per month calculated at the (then) prevailing rate of `43.50 per US $, be passed with periodical increase therein. A similar ad interim relief was also prayed during the interregnum period till the disposal of the suit.

4. Notices were issued to the defendant who was duly represented by his counsel.On 5th November, 1999, this Court after considering the submissions of the learned counsel for the plaintiff had passed a restraint order against the defendant from pursuing the divorcne petition purportedly instituted by him in the Connecticut Court, USA for a period of 30 days. The restraint order was passed in the presence of the learned counsel for the defendant observing that the said restraint order will not cause any serious prejudice to the defendant till he files his definite statement before this Court.

5. The suit has been ultimately decreed by this Court on 27.9.2002 granting the relief as prayed for in the main suit. However, on 09.3.2000, this Court had issued a suo moto contempt notice against the defendant on account of the fact that it was brought to its notice that the defendant despite a restraint order having been passed against him, not to pursue his divorce petition before the Connecticut Court, USA had chosen to pursue the same and obtained divorce from the said Court. Show cause notice of contempt was not replied and this Court ultimately vide order dated 20.5.2004 held the defendant guilty of wilful and contumacious violation of the order dated 05.11.1999 of this Court and it had accordingly sentenced him to SI for three months and to pay a fine of `2,000/- under Section 12 of the Contempt of Courts Act and in default of payment of fine, the defendant shall undergo SI for one month.

6. The defendant being a Non Resident Indian and despite the decree having been passed on 27.9.2002 as well as the order dated 20.5.2004 holding him guilty for Contempt of Court has chosen not to appear before this Court resulting in adoption of coercive processes against him for procuring his attendance before this Court so that he could be made to undergo sentence of imprisonment imposed on him. It is at this stage that this Court passed orders issuing notice to the Standing Counsel of UOI with regard to the question of extradition of the defendant from the jurisdiction of Connecticut Court, USA where he was purportedly residing and working at that point of time.

7. The UOI filed its affidavit through one Mr.D.K.Ghosh, Public Relation Officer giving therein legal position with regard to the extradition of the defendant. He had stated that since the offence of which the defendant was held guilty was not falling within the ambit of ‘extradition offence’ as contemplated under Section 2(c) of the Extradition Act in relation to the treaty States therefore, the defendant could not be extradited.

8. Despite this legal position having been enunciated in the affidavit in very clear terms, the Court took note of the fact that the defendant was facing prosecution in respect of two other offences, one instituted by the plaintiff for the offence of defamation punishable under Section 500/501 of the IPC and the other under Section 498A IPC which is pending in Courts of District Gautam Budh Nagar (UP). One of the offences was stated in the affidavit and in the subsequent status report to be an extraditable offence and it was observed that the details of correspondence which has been entered into between the Govt. of India and their counter parts has not yielded any fruitful result on account of the fact that the offence for which the defendant has been convicted is not an extraditable offence. Despite this legal position, this Court went out of the way and obtained status report with regard to the efforts being made by the Govt. of India from time to time with regard to procuring the attendance of the defendant in India. As many as, 5-6 status reports have been filed over a period of almost 7 years from the date of holding the defendant guilty for an offence of contempt.

9. The question which now arises for consideration is whether under such a contingency, when there is a definite affidavit that the present offence of which the defendant has been held guilty and sentenced to imprisonment of 3 months apart from fine of `2000/- does not happen to be an extraditable offence, the proceedings must be permitted to continue indefinitely till the time his attendance is procured in connection with some other case or should the case be adjourned sine die to be revived at the option of the plaintiff or other official of the Government of India in case the defendant appears in India.

10. Though the answer to the above question from the side of the plaintiff’s counsel has been in affirmative on the ground that once this Court has continued the existing proceedings, it may be continued, till the time the respondent is brought to the justice and sent to imprisonment in terms of the conviction order dated 20.5.2004. The learned counsel of UOI has left it to the discretion of the Court to consider the passing of such orders as may be warranted in law.

11. The Court is faced with the dilemma as to whether the present proceedings which obviously have been going on for a period of 7 years, after holding the defendant guilty for an offence and contempt has resulted in wastage of public time at the expense of more important cases which need attention of the Court and more particularly of the cases where the accused persons are languishing in jail, should be continued or not.

12. The answer to this question, I feel should be in negative and the present proceedings ought not to be continued any further and they can be adjourned sine die with liberty to revive the same at the option of the plaintiff as and when the defendant is brought to India under extradition treaty or he appears on his own to face the consequences as may be warranted in law.

13. This order has been passed on account of the fact that admittedly the offence of contempt of Court in respect of which the defendant has been held guilty is not an extraditable offence under Section 2(c) of the Extradition Act. Section 2(c) lays down that an ‘extradition offence’ means in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State.

14. The defendant is residing in Canada and for the purpose of making a requisition for surrendering or return of any accused or convicted person to India the provisions of the Extradition Act, 1962 (hereinafter referred to as the ‘Act’) have to be complied with. A requisition for surrender or return of a person can be made under Section19 of the said Act only if the person is accused or convicted of an ‘extradition offence’. Under Section 2(c) of the said Act, an ‘extradition offence’ means – (i) in relation to a foreign state, being a treaty state, an offence provided for in the extradition treaty with that State.

15. The Indo-Canadian Extradition Treaty, was notified on 7th May, 1987. Article 3 of the Treaty defines Extradition offences. As per clause 3(1) of the Treaty, an offence to be an extradition offence must be an offence punishable by the laws of both the contracting states by a term of imprisonment for a period of more than one year. Under Section 12 of the Contempt of Court Act, 1971 the maximum punishment is a sentence of simple imprisonment for a period of six months.

16. It is submitted that the defendant vide order dated 20.5.2004 was sentenced to imprisonment for a period of three months (and an additional period of one month in case of default in payment of fine), hence the said offence cannot be termed as an extradition offence. Even in cases involving commission of an ‘extradition offence’ (punishable by a term of imprisonment for a period of more than a year), there is no duty on the Contracting State to extradite as Article 1.4 of the Treaty clearly provides that there is no duty to extradite a person sentenced in respect of an extradition offence where the actual term of imprisonment is 6 months or less. Therefore, the defendant is not held guilty of an extraditable offence and even if it is assumed that it was an extraditable offence even then the contracting State is under no obligation to extradite for the offence if the sentence is of less than six months. On both these counts, the defendant cannot be extradited.

17. It is also pertinent here to mention that the passport of the defendant has already been impounded under Section 10(3) (e) and 10(3) (h) of the Passport Act, 1967. The defendant was also holding another passport which was issued by the Consulate General of India, Toronto and the same has also been impounded.

18. That the High Commission of India, Ottawa, Ontario vide letter 4.8.2004 sought extradition of the defendant in respect of having committed criminal offences u/S 500/501, IPC and Section 72 of the IT Act, 2000. The same was done in pursuance of a request for extradition received from the Additional Chief Judicial Magistrate, Gautam Budh Nagar, UP dated 13.4.2004. In pursuance of the same extensive correspondence took place between the Ministry and the Canadian Authorities. On 09.11.2006, the General Counsel and Director of the International Assistance Group, wrote to the Joint Secretary (Consular) that the evidence which had been provided would not meet the new test for committal for extradition laid down by the Supreme Court of Canada and hence they could not proceed with the request for extradition. Pursuant to further exchange of correspondence a reply was received from Ms.Barbara Kothe, Senior Counsel, International Assistance Group on 15.1.2008 setting out detailed reasons as to why the defendant could not be extradited in respect of the offences under Sections 500 and 501, IPC and Section 72 of the IT Act, 2000. Vide communication dated 27.2.2009 Ms. Barbara Kothe clarified as to how the International Assistance Group was authorized to determine whether to issue an authority to proceed.

19. A second FIR, under Section 498A/406 IPC has been registered at the instance of the plaintiff against the defendant. In respect thereof, the Ministry of External Affairs has requested the Canadian High Commission in New Delhi to state whether ‘subjecting a woman to cruelty, under Section 498A of the Indian Penal Code and dowry related offences’ satisfy the requirement of dual criminality and whether the alleged conduct of an accused person amounts to extraditable offence in the Canadian laws. The Ministry of External Affairs is making all efforts to secure extradition of the defendant in accordance with law.

20. For the above mentioned reasons, I am of the considered opinion that no useful purpose will be served by keeping the present proceedings pending before this Court as the offence of which the defendant has been found guilty could not be said to be an ‘extraditable offence’ and accordingly the matter is adjourned sine die with liberty to the plaintiff to revive the same as and when the defendant is extradited in respect of any other extraditable offence where he is facing trial and steps have been taken by the Govt. of India to procure his attendance under the extradition treaty. No order as to cost.

21. File be consigned to the Record Room.

V.K. SHALI, J.

July 04, 2011

RN

Source
http://www.indiankanoon.org/doc/134477795/

Long live speedy justice !! 30-yr-long divorce battle ends

Long live speedy justice !!

30-yr-long divorce battle ends

Abhinav Garg, TNN | Jan 17, 2012, 01.43AM IST

NEW DELHI: They were together for less than a day yet fought a prolonged battle for over 30 years to get rid of each other. The Delhi High Court on Monday brought down the curtains on a three-decade-long divorce battle between a couple that had spent just half a day together after tying the knot in 1982. It granted the divorce decree to the husband who accused his wife of deserting him on the very day of the wedding.

“The fact that parties who stayed together for 24 hours spent close to 30 years in alleys of courts to get rid of each other is nothing but appalling to say the least. The institution of marriage, considered a holy union of two souls is made a mockery of by such cases and it is no wonder relevance of this pious bond is under scanner by youth today,” an anguished Justice Kailash Gambhir noted while rejecting the appeal by the wife who had challenged the grant of divorce decree to the husband by the trial court.

HC also said that family courts and mediation centres have an important role to play in such situations and they should encourage resolving of disputes and bring the feuding couples closer together so that marriages can be saved.

Source

http://timesofindia.indiatimes.com/city/delhi/30-yr-long-divorce-battle-ends/articleshow/11517703.cms

 

Some interesting comments from TOI website :
kumar (delhi)

yes, courts took 30 years to decide the case out of which it appears 16 years were taken by the high court itself.

from case records it appears that the the judgment of the high court was reserved in march 2011 but was delivered in january 2012.

the wife even though she left the husband after one day apparently did not want to divorce him as she was consistently seeking adjournments.

the big question is: do the courts care about the lives of the people- imagine the poor man having to face the ordeal called the legal system in india to correct a mistake he made and go on with his life..

in any other civilized country< this case would have become an embarrassing political issue for the government, in india the case deserved one small paragraph in the newspapers..