Category Archives: Quash

Marriage by #communist #party ends in a #Mess. 1st legal #wife & 2 daughters on streets. #Husband has 2nd woman, so 1st wife filing case on 2nd !! #Muslim Personal law, #SpecialMarriage Act all discussed

Notes : Love , inter-fath marriage opposed by parents. Communist party intervenes and conducts the marriage !!. Husband Feroz khan is alleged to have forced Hindu wife Ponnarasi to convert. Ponnarasi refuses. Allegedly he is supposed to have thrown her out and married another hindu girl Sangeetha who converts to islam. First wife Ponnarasi is on the streets with 2 kids. Ponnarasi file #kitchidi of cases on #second wife Sangeetha and in laws etc. Second wife and co try quash of first wife’s cases. Madras HC refuses quash saying the first marriage was under special marriage act and so the husband NOT entitiled to marry second wife (which he would have been entitled to under Muslim personal law)

 

marriage registry
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 04.06.2018

Reserved on : 27.04.2018

Pronounced on : 04.06.2018

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

Crl. OP (MD)No.21880 of 2013
and
MP(MD)No.1 of 2013

P.Sangeetha … Petitioner

Vs.

1.The Inspector of Police,
All Women Police Station,
Sivakasi, Virudhunagar District.
(Ref.Crime No.9/2013).

2.P.Ponnarasi … Respondents

Prayer : This Criminal Original Petition is filed Under Section 482 of Criminal Procedure Code to call for records in C.C.No.330/2013 on the file of the Judicial Magistrate, Sivakasi, Virudhunagar District and quash the charge sheet and consequential further proceedings as against the petitioner.

For Petitioners : Mr.D.Shanmugaraja Sethupathi
For Respondents : Mr.A.Robinson,
Government Advocate for R1
Mr.N.Dilip Kumar for R12
:ORDER

1.Heard the learned counsel on either side.

2.This petition has been filed for quashing the proceedings in C.C No.330 of 2013 on the file of the Judicial Magistrate, Sivakasi insofar as the petitioner is concerned. The petitioner has been shown as the fourth accused in the impugned criminal proceedings. The second respondent herein is admittedly the wife of the first accused Feroz Khan. They were in love with each other and difficulties arose in view of the inter religious character of the relationship. Therefore, the local communist party office bearers stepped in. On 13.05.2004, the marriage between the first accused and the second respondent herein was solemnized under the provisions of the Special Marriage Act. Two children were born of the wedlock in the year 2005 and 2007. Both are girl children. But, the first accused Feroz Khan compelled the second respondent Ponnarasi to convert to Islam. The second respondent steadfastly refused. Therefore, she was sent away from marital home.

3.The case of the second respondent is that unable to bear the cruelty caused to her by the first accused and her in-laws, she lodged a complaint before the All Women Police Station, Sivakasi on 15.02.2013. Reconciliation efforts were undertaken. On 23.02.2013, the first accused Feroz Khan left the cell phone behind and went out. A call came and the second respondent herein attended to the same. The caller at the other end was a women. The second respondent herein wanted to know as to who she was. In response thereto, a voice at the other end stated that it was the second respondent who was speaking on the mobile of the caller’s husband and wanted to know the identity of the second respondent. The second respondent told that she was the wife of the Feroz Khan. When the person speaking on the other end heard this, she threatened the second respondent that only she alone is the wife of the Feroz Khan and that if the second respondent repeated her assertion, she would be done away with.

4.Deeply upset by this development, the second respondent/defacto complainant went to the house bearing No.25 A, Muslim Nadutheru where the first accused was residing. The second respondent saw the petitioner along with Feroz Khan. The second respondent asked her husband Feroz Khan as to who the petitioner was. Feroz Khan told the second respondent/defacto complainant that since she refused to convert to Islam, he had chosen to marry the petitioner herein. The petitioner was originally known as Sangeetha. She was the daughter of one teacher by name Pandiyarajan and was converted to Islam and renamed as Umra Fatima on 03.03.2011. After that the said Feroz Khan got married to the petitioner herein. Thereafter, the petitioner also told the second respondent that since the second respondent refused to convert Islam, she had chosen to convert to Islam and marry Feroz Khan. The petitioner asserted that she alone was the wife of the Feroz Khan and that if the second respondent did not stay away, she would be done away with.

5.The second respondent once again took up the matter to the local communist party office-bearers on 23.02.2013. They enquired the first accused Feroz Khan. He admitted that he in fact married the petitioner herein. It was true that the petitioner had converted to Islam and got her name also changed into an islamic one.

6.The police after conducting their investigation filed final report against all the four accused. As regards the petitioner herein, final report was filed under Sections 494, 506(i) of IPC. As regards the first accused, final report was filed under Sections 498(A), 506(i), 406 and 494 of IPC. As regards the in-laws, the charges were made under Sections 498(A), 506(i) IPC. The learned Judicial Magistrate, Sivakasi took the final report on file in C.C No.330 of 2013 and issued notice to the accused. To quash the same, this criminal original petition came to be filed.

7.The learned counsel appearing for the petitioner pointed out that the very registration of F.I.R under Section 494 of IPC is illegal. He would contend that there has been a mis-joinder of charges in this case. Sections 498 A and 494 of IPC cannot be clubbed together as far as the petitioner is concerned. He placed reliance on the decision reported in 2012 -2 ? L.W (Crl) 584 (Deepalakshmi vs. K.Murugesh & others). He also pointed out that there is absolutely no legal evidence to show that the petitioner had contracted marriage with Feroz Khan when the marriage between the Feroz Khan and the defacto complainant Ponnarasi was in subsistence. He also would contend that the offence of criminal intimidation was clearly not made out. The defacto complainant has not anywhere averred that she felt intimidated as a result of the words uttered by the petitioner herein. In this regard, he placed reliance on the decision of the Madras High Court reported in 1989 Crl L.J. 669.

8.The learned counsel appearing for the defacto complainant/second respondent as well as the learned Government Advocate (Crl.Side) submitted that this is not a case deserving the invocation of the inherent powers of this Court for quashing the impugned criminal proceedings. He would submit that there are sufficient materials on record which prima facie indicating that the petitioner herein is guilty of the offences under Sections 506(i) and 494 r/w 109 IPC.

9.This Court bestowed its anxious consideration to the rival contentions. It is not in dispute that the defacto complainant is the legally wedded wife of A1 Feroz Khan. It was the marriage solemnized under the Special Marriage Act. If the marriage between the first accused Feroz Khan and the defacto complainant Ponnarasi had taken place under the aegis of islamic law, then, A1 can contend he is entitled to enter into another marriage even when his first marriage is subsisting and that he cannot be said to be guilty of offence under Section 494 of IPC. But, in this case, the marriage between the first accused Feroz Khan and Ponnarasi took place under the provisions of the Special Marriage Act. https://twitter.com/ATMwithDick/status/1022347976738582528

10.Admittedly, the said marriage has not dissolved in the manner known to law. It is very much in subsistence. Now, the question is whether during the said subsistence of the first marriage, the said Feroz Khan entered into a second marriage. The police have recorded the statement of the defacto complainant under Section 161(3) Cr.PC. The specific statement of the second respondent is that by shear chance she attended the call made by the petitioner herein to the mobile number of the first accused Feroz Khan and that the petitioner had affirmed that she was the wife of A1. Thereafter, the second respondent had gone to the premise bearing No.25 A, Muslim Nadutheru where the first accused was residing. Both the petitioner and the A1 Feroz Khan were found therein. Feroz Khan as well as the petitioner herein had told the second respondent herein that since the second respondent refused to convert to Islam, the petitioner had got married to Feroz Khan. The petitioner was originally a Hindu. She was known as Sangeetha. She was the daughter of one teacher by name, Pandiyarajan. Thereafter, the petitioner underwent conversion to Islam and even got her name changed as Umra Fatima. There was also a gazette notification in this regard. There is a clear reference to the gazette notification in the statement recorded under 161 (3) statement. In the Crl.OP grounds, this has not been challenged. Therefore, there is enough material to indicate that the petitioner herein had consciously got married to said Feroz Khan with full knowledge that the marriage between the first accused and the second respondent is very much in subsistence.

11.The learned counsel appearing for the defacto complainant placed reliance on the decision of the Hon’ble Supreme Court reported in (2012) 6 SCC 353 (Ushaben V. Kishorbhai Chunilal Talpada). The Hon’ble Supreme Court held that if a complaint contains allegations about commission of offence under Section 498A of the IPC which is a cognizable offence, apart from allegations about the commission of offence under Section 494 of the IPC, the court can take cognizance thereof even on a police report. This decision of the Hon’ble Supreme Court is a clear answer to the contentions raised by the learned counsel for the petitioner that the Trial Court cannot take cognizance of both the offences under Sections 494 as well as 498 of IPC in a single proceeding. This Court rejects the contention of the petitioner that the registration of F.I.R is illegal.

12.In this case, the allegations against A1 to A3 on the one hand and the allegations against the fourth accused on the other cannot be bifurcated. This Court is of the view that the offences against all the four accused will have to be tried together. It is true that in the complaint, the second respondent has not specifically averred that she felt afraid and intimidated following the utterances of the petitioner herein. The second respondent is a woman who has been betrayed by her husband. Two girl children were born of the wedlock. She had been repeatedly pleading with the local office bearers of the communist party for reconciliation. This Court can easily come to the conclusion that the second respondent became afraid. This is evident from her conduct. That the second respondent felt the impact of the words uttered by the petitioner herein can be inferred from the subsequent conduct of the second respondent in going to the police station and lodging a complaint. That itself would show that she felt afraid. This Court is of the view that no case has been made out for quashing the impugned proceedings. However, considering the fact that the petitioner is a woman, this Court directs that the trial magistrate shall insist on the appearance of the petitioner herein only for answering the charges and at the time of examination of witnesses under Section 313 of Cr.PC and at the time of pronouncing judgement. Except the aforesaid occasions, on other hearing dates the petitioner can be permitted to be represented through counsel.

13.With this relief regarding dispensing with the personal appearance of the petitioner, this Criminal Original Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed.

To

1.The Inspector of Police, All Women Police Station, Sivakasi, Virudhunagar District. (Ref.Crime No.9/2013).

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

When HC shall NOT quash a criminal case Parbatbhai Aahir Vs State of Gujarat – Supreme court – cornerstone case

when NOT to quash a criminal case … Parbatbhai Aahir Vs State of Gujarat – Supreme court – cornerstone case

“…… (iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;

(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute; https://twitter.com/ATMwithDick/status/1011037375793856512

(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

(x) There is yet an exception to the principle set out in propositions (viii) and

(ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.…..”


REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1723 OF 2017
[Arising out of SLP(CRL) No 9549 of 2016]

PARBATBHAI AAHIR @ PARBATBHAI BHIMSINHBHAI KARMUR AND ORS **Appellants

 

VERSUS

 

STATE OF GUJARAT AND ANR. ..Respondents

 

JUDGMENT

Dr D Y CHANDRACHUD, J

(1) Leave granted.

 

(2) By its judgment dated 25 November 2016, the High Court of Gujarat dismissed an application under Section 482 of the Code of Criminal Procedure, 1973. The appellants sought the quashing of a First Information Report registered against them on 18 June 2016 with the City ‘C’ Division Police Station, District Jamnagar, Gujarat for offences punishable under Sections 384, 467, 468, 471, 120-B and 506(2) of the Penal Code. The second respondent is the complainant.

(3) In his complaint dated 18 June 2016, the second respondent stated that certain land admeasuring 17 vigha comprised in survey 1408 at Panakhan Gokulnagar in Jamnagar city was his ancestral agricultural land. The land was converted to non-agricultural use on 21 June 1995 and 5 January 2000 pursuant to orders of the District Collector. One hundred and three plots were carved out of the land. Amongst them, plots 45 to 56 admeasuring 32,696 sq.ft. were in the joint names of six brothers and a sister (represented by the complainant). According to the complainant, a broker by the name of Bachhubhai Veljibhai Nanda approached him with Parbatbhai Ahir, the first appellant stating that he desired to purchase the land. On the next day, the first appellant approached the complainant with his partner Hasmukhbhai Patel (the third appellant) to purchase the land. The complainant was requested to provide a photocopy of the lay out plan of the plot, which he did. On the following day the first appellant is alleged to have gone to the house of the complainant with the second and the third appellants at which point in time, parties agreed that the land would be sold at the rate of Rs 4,221 per sq.ft. and a deal was struck for a consideration of Rs.1,13,58,711/- out of which an amount of Rs 11 lakhs was given in cash to the complainant for plot no.56. The complainant’s case is that while the discussion was on, he was requested by the second and the third appellants that since the power of attorney was old and unreadable all the plot holders should give their passport size photographs. Accordingly, a document was reduced to writing by which it was agreed that the sale transaction for plot no.56 would be completed within two months against full payment. According to the complainant, when he demanded the remaining payment for the plot from the second and third appellants, the second appellant provided him seven cheques each in the amount of Rs 6 lakhs in the name of the six brothers (one brother being given two cheques). Thereafter when the complainant followed up for the payment of the remaining amount with the purchasers, the balance was not paid and, on the contrary, the complainant was threatened of a forcible transfer of the land. According to the complainant, when he visited the office of the Sub-registrar about three days before lodging the complaint, it came to his knowledge that a sale deed has been registered not only in respect of the plot in question (which was agreed to be sold) but also in respect of plot nos.45 to 55 on 27 January 2016. It was then that the complainant realised that the purchaser in the sale deed was shown as the fourth appellant, Jayesh Arvindbhai Patel, and the name of the seventh appellant, Jitudan Nankudan Gadhavi, resident of Payalnagar society, Naroda, Ahmedabad was shown as the holder of a power of attorney. The witnesses to the registered sale deed were the fifth appellant, Rabari Hiteshbhai and the sixth appellant, Patel Indravaden Dineshbhai.

(4) The complaint came to be lodged on the complainant having realised that the power of attorney in the name of his siblings had been forged. The complainant stated that neither he nor any of his siblings had given a power of attorney in favour of the seventh appellant. According to the complainant, neither the non-judicial stamp dated 25 January 2016 in the amount of Rs 10,30,000/- nor the judicial stamp dated 27 January 2016 has been purchased by him. In fact, according to the complainant, it was the fourth appellant who had purchased the judicial stamp dated 27 January 2016.

(5) According to the complaint, plots no.45 to 55 admeasuring 30,005 sq.ft. are valued at Rs 12.50 crores. It has been alleged that a conspiracy was hatched by the appellants and by the other co-accused resulting into the transfer of valuable land belonging to the complainant and his siblings, on the basis of forged documents.

(6) The High Court noted that the fourth appellant had moved Special Criminal Application no.4538 of 2016 which had been rejected by the coordinate bench of the High Court on 3 August 2016. While rejecting the earlier application under Section 482, the High Court had observed thus: “19. Primary details revealed the complaint had led this Court examine the papers of the investigation. The evidence so far collected prima facie reveal the involvement of the petitioner.This Court also could notice that it is a case where under the pretext of buying only a particular Plot No.56 from the complainant and his family members, the power of attorney has been forged usurping nearly 10 other plots which value nearly 11 crores and odd by allegedly conniving with each other, and therefore, the payment of Rs 42 lakhs by the cheques to the complainant in relation to one of the plots also would pale into insignificance. This, by no means, even at a prima facie level, can be said to be a civil dispute, given a colour of criminality. It would be in the interest of both the sides for this Court to either, at this stage not to make a roving inquiry or divulge anything which may affect the ongoing investigation. Suffice it to note that, the petition does not deserved to be entertained an the same stands rejected.” Before the High Court, the plea for quashing the First Information Report was advanced on the ground that the appellants had amicably settled the dispute with the complainant. The complainant had also filed an affidavit to that effect.

(7) On behalf of the prosecution, the Public Prosecutor opposed the application for quashing on two grounds. First – the appellants were absconding and warrants had been issued against them under Section 70 of the Code of Criminal Procedure, 1973. Second, the appellants had criminal antecedents, the details of which are contained in the following chart submitted before the High Court:

.. 1 Parbatbhai Bhimsinhbhai Karmur P.1
.. a. City “A” Division Jamnagar CR No 1-251/2010

 

.. 2 Ramde Bhikha Nanadaniya P.2
.. a. City “A”Division Jamnagar
.. b. City “A” Division Jamnagar CR No.1-105/2016
.. c. City “A” Division Jamnagar CR No.1-251/2010

 

.. 3 Hasmukh Hansrajbhai Patel P.3
.. a. Gandhinagar M-Case No.1/2014
.. b. City “A” Division Jamnagar CR No.1-105/2016

 

.. 4 Indravadan Dineshbhai Patel P.6
.. a. City “A: Division Jamnagar CR No.1-105/2016

 

.. 5 Jitendra Somabhai Modi P.7
.. a. City “A” Division Jamnagar CR No.1-105/2016
.. b. Odhav Police Station CR No.I-180/2015

 

.. 6 Vishnu @ Toto Rabari
.. a. Gandhinagar M-Case No.1/2014
.. b. City “A: Division Jamnagar CR No.I-105/2016

The High Court observed that it had been given “a fair idea” about the modus operandi adopted by the appellants for grabbing the land, in the course of which they had opened bogus bank accounts. The High Court held that the case involves extortion, forgery and conspiracy and all the appellants have acted as a team. Hence, in the view of the High Court, it was not in the interest of society at large to accept the settlement and quash the FIR. The High Court held that the charges are of a serious nature and the activities of the appellants render them a potential threat to society. On this ground, the prayer to quash the First Information Report has been rejected.

(8) On behalf of the appellants, reliance has been placed on the decisions rendered by this Court in Gian Singh v State of Punjab1 and in Narinder Singh v State of Punjab2. Learned counsel submitted that the dispute between the complainant and the appellants arose from a transaction for the sale of land. It was urged that the dispute is essentially of a civil nature and since parties have agreed to an amicable settlement, the proper course for the High Court would have been to quash the FIR in exercise of the jurisdiction conferred by Section 482 of the Code of Criminal Procedure, 1973. 1 (2012) 10 SCC 303 2 (2014) 6 SCC 466

(9) On the other hand, learned counsel appearing on behalf of the state has supported the judgment of the High Court. Learned counsel emphasised the circumstances which weighed with the High Court, including (i) the seriousness of the allegations; (ii) the conduct of the appellants who were absconding; and (iii) the criminal antecedents of the appellants. Hence, it was urged that the appellants were not entitled to the relief of quashing the FIR merely because they had entered into a settlement with the complainant.

(10) Section 482 is prefaced with an overriding provision. The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any court; or (ii) otherwise to secure the ends of justice. In Gian Singh (supra) a bench of three learned Judges of this Court adverted to the body of precedent on the subject and laid down guiding principles which the High Court should consider in determining as to whether to quash an FIR or complaint in the exercise of the inherent jurisdiction. The considerations which must weigh with the High Court are:

  “61 …the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society.

Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

(11) In Narinder Singh (supra), Dr Justice A K Sikri, speaking for a bench of two learned Judges of this Court observed that in respect of offences against society, it is the duty of the state to punish the offender. In consequence, deterrence provides a rationale for punishing the offender. Hence, even when there is a settlement, the view of the offender and victim will not prevail since it is in the interest of society that the offender should be punished to deter others from committing a similar crime. On the other hand, there may be offences falling in the category where the correctional objective of criminal law would have to be given more weightage than the theory of deterrence. In such a case, the court may be of the opinion that a settlement between the parties would lead to better relations between them and would resolve a festering private dispute. The court observed that the timing of a settlement is of significance in determining whether the jurisdiction under Section 482 should be exercised:

“29.7…Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation.

It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits…” This Court held, while dealing with an offence under Section 307 of the Penal Code that the following circumstances had weighed with it in quashing the First Information Report:

“33. We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute etc. is not stated in detail.

However, a very pertinent statement appears on record viz., “respectable persons have been trying for a compromise up till now, which could not be finalized”. This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to be led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conducted medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings…”

(12) In State of Maharashtra v Vikram Anantrai Doshi3, a bench of two learned Judges of this Court explained the earlier decisions and the principles 3 (2014) 15 SCC 29 which must govern in deciding whether a criminal proceeding involving a non-compoundable offence should be quashed. In that case, the respondents were alleged to have obtained Letters of Credit from a bank in favour of fictitious entities. The charge-sheet involved offences under Sections 406, 420, 467, 468, and 471 read with Section 120-B of the Penal Code. Bogus beneficiary companies were alleged to have got them discounted by attaching fabricated bills. Mr Justice Dipak Misra (as the learned Chief Justice then was) emphasised that the case involved an allegation of forgery; hence the court was not dealing with a simple case where “the accused had borrowed money from a bank, to divert it elsewhere”. The court held that the manner in which Letters of Credit were issued and funds were siphoned off had a foundation in criminal law: “… availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of these kind of benefits it cannot be regarded as a case having overwhelmingly and predominatingly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society. The gravity of the offence creates a dent in the economic spine of the nation.” The judgment of the High Court quashing the criminal proceedings was hence set aside by this Court.

(13) The same principle was followed in Central Bureau of Investigation v Maninder Singh4 by a bench of two learned Judges of this Court. In that case, the High Court had, in the exercise of its inherent power under Section 482 quashed proceedings under Sections 420, 467, 468 and 471 read with Section 120-B of the Penal Code. While allowing the appeal filed by the Central Bureau of Investigation Mr Justice Dipak Misra (as the learned Chief Justice then was) observed that the case involved allegations of forgery of documents to embezzle the funds of the bank. In such a situation, the fact that the dispute had been settled with the bank would not justify a recourse to the power under Section 482: “…In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue, the entire community is aggrieved.”

(14) In a subsequent decision in State of Tamil Nadu v R Vasanthi Stanley5, the court rejected the submission that the first respondent was a 4 (2016) 1 SCC 389 5 (2016)1 SCC 376 woman “who was following the command of her husband” and had signed certain documents without being aware of the nature of the fraud which was being perpetrated on the bank. Rejecting the submission, this Court held that: “… Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is, there are certain provisions in Code of Criminal Procedure relating to exercise of jurisdiction Under Section 437, etc. therein but that altogether pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score…” “…A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system…”

(15) The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions :

(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;

(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

(x) There is yet an exception to the principle set out in propositions (viii) and

(ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance. https://twitter.com/ATMwithDick/status/1011037375793856512

(16) Bearing in mind the above principles which have been laid down in the decisions of this Court, we are of the view that the High Court was justified in declining to entertain the application for quashing the First Information Report in the exercise of its inherent jurisdiction. The High Court has adverted to two significant circumstances. Each of them has a bearing on whether the exercise of the jurisdiction under Section 482 to quash the FIR would subserve or secure the ends of justice or prevent an abuse of the process of the court. The first is that the appellants were absconding and warrants had been issued against them under Section 70 of the Code of Criminal Procedure, 1973. The second is that the appellants have criminal antecedents, reflected in the chart which has been extracted in the earlier part of this judgment. The High Court adverted to the modus operandi which had been followed by the appellants in grabbing valuable parcels of land and noted that in the past as well, they were alleged to have been connected with such nefarious activities by opening bogus bank accounts. It was in this view of the matter that the High Court observed that in a case involving extortion, forgery and conspiracy where all the appellants were acting as a team, it was not in the interest of society to quash the FIR on the ground that a settlement had been arrived at with the complainant. We agree with the view of the High Court. The present case, as the allegations in the FIR would demonstrate, is not merely one involving a private dispute over a land transaction between two contesting parties. The case involves allegations of extortion, forgery and fabrication of documents, utilization of fabricated documents to effectuate transfers of title before the registering authorities and the deprivation of the complainant of his interest in land on the basis of a fabricated power of attorney. If the allegations in the FIR are construed as they stand, it is evident that they implicate serious offences having a bearing on a vital societal interest in securing the probity of titles to or interest in land. Such offences cannot be construed to be merely private or civil disputes but implicate the societal interest in prosecuting serious crime. In these circumstances, the High Court was eminently justified in declining to quash the FIR which had been registered under Sections 384, 467, 468, 471, 120-B and 506(2) of the Penal Code. https://twitter.com/ATMwithDick/status/1011037375793856512

(17) We do not, for the above reasons, find any merit in the appeal. The Criminal Appeal shall accordingly stand dismissed.

****…………………………………CJI [DIPAK MISRA]

****…………………………………..J [A M KHANWILKAR]

****…………………………………J [Dr D Y CHANDRACHUD]

New Delhi;

October 04, 2017

#RedCorener Notice #Quash #Delhi #HC. #LOC to be withdrawn. SHIV NARAYAN DHINGRA, J.

#498a etc on NRI Husband. Followed by RCN and LOC

A clear case where RCN with tags such a #Kidapping #Violent #Dangerous etc were added and NO official request for extradition were made for over 7 years !!

Shri Shiv Narayan DHINGRA, J. quashes the RCN and also orders withdrawal of LOC on undertaking by the petitioner

Case exposes the misuse of law

 

/////The petitioner’s description of being ‘#violent and #dangerous’ also has been added malafidly, with ulterior motive, in view of the fact that allegations against petitioner were of only of emotional torture.

Offence of kidnapping was given as the reasons for issuance of RCN, which on the representation of petitioner was removed. It is apparent that the LOC & RCN were issued for extraneous reasons by an officer who was not authorized. The petitioner has also highlighted the difference in statements made by witnesses on different occasions. Since the matter pertaining to these offences is subjudiced, it will not be appropriate to comment on this aspect but suffice it to say that the action against the petitioner of issuing RCN was uncalled for in view of the fact that neither offence, for which the petitioner is facing trial in India, is an extraditable offence, nor any request for extradition of the petitioner has been made for the last 7 years despite knowing whereabouts of the petitioner. I, therefore, consider it a fit case for quashing the RCN issued against the petitioner at the behest of Delhi Police. The RCN, is therefore, hereby quashed.
/////

DELHI HC

Delhi High Court

Court On Its Own Motion vs State V. Gurnek Singh Etc. on 11 August, 2010

Author: Shiv Narayan Dhingra

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: July 15, 2010
Date of Order: August 11, 2010

W.P.(Crl.) No. 1315/2008

11.08.2010

SUMER SINGH SALKAN … Petitioner
Through: Ms. Malavika Rajkotia with Mr. Bandan Kumar, Advocates

Versus

ASSTT. DIRECTOR & ORS. … Respondents
Through: Mr. Vikas Pahwa, Standing Counsel for CBI, Mr. Pawan Sharma, APP for the State, Mr. D.K.Sharma, SHO, P.S. Alipur.

and

Date of Reserve: July 20, 2010

Date of Order: August 11, 2010

Crl. Ref. 1/2006

11.08.2010

COURT ON ITS OWN MOTION RE: … Petitioner

Through: None.

Versus

STATE VS. GURNEK SINGH ETC. … Respondents

Through: Mr. Sunil Sharma, APP

JUSTICE SHIV NARAYAN DHINGRA

“..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 judgment should be reported in Digest?…” Yes.

JUDGMENT

  1. 1. By the present petition the petitioner has sought recall of Look-out- Circular (LOC) and Red Corner Notice (RCN) issued by Delhi Police and Interpol against the petitioner alleging that LOC and RCN were issued in arbitrary and malafide exercise of power by the respondent.
  2. 2. The petitioner claimed that he was a Canadian citizen since January, 2004 and a person of Indian origin. He had married one Ms. Reema Salkan, daughter of Prof. R.S. Mann, on 24th March, 2002 according to Hindu rites and ceremonies at Infantry Hostel, Delhi Cantonment, New Delhi. At the time of his marriage, the petitioner was living and working in Canada and he came to India on three weeks leave for the purpose of marriage. The marriage was settled with Ms Reema through matrimonial advertisement in newspaper. The facts reveal that wife of the petitioner was not able to join the petitioner in Canada, as difference arose between the parties in the very beginning. The petitioner alleged that he was compelled to withdraw the sponsorship made by him for his wife Reema in view of certain developments. A complaint against the petitioner and his parents and married sister was filed at Crime Against Women Cell (CAW Cell) under section 498-A/406 IPC making various allegations. Later on, an FIR was registered on 22nd April, 2003 on the basis of this complaint. The parents and sister of petitioner obtained anticipatory bail from the court. Since petitioner was in Canada, he could not be arrested by the police. Additional Deputy Commissioner of Police (North-West) wrote a letter dated 27th May, 2003 to Foreigners Regional Registration Office (FRRO) for opening LOC against the petitioner. This letter, annexed with the petition, shows that Addl. DCP asked RFFO to open an LOC against the petitioner at all India basis because of FIR under section 498A/406 of IPC, registered at Police Station – Alipur, Delhi. Later, a letter seems to have also been written to Interpol Wing of Central Bureau of Investigation (CBI) on 11th June, 2003 for opening and issuance of a Red Corner Notice and service of summons on the petitioner in Canada. In response to this letter, CBI wrote a letter to Dr. R.K. Bansal, Asstt. Commissioner of Police (ACP), Sub Div. Narela, Delhi dated 15th July, 2003 and informed ACP that summons had been forwarded to Indian High Commission in Canada and also informed that in order to bring the petitioner to Delhi, charge-sheet should be filed and Non-Bailable Warrants (NBWs) of arrest should be obtained against the petitioner so that extradition proceedings could be initiated. It was advised that a short self contained note be prepared and same be sent to Interpol Wing. Further documents show that the police declared the petitioner as a “Wanted” person without any process issued through the Court and opened a file No. 6/SIO/2003 (77). Asstt. Director of T.P. Section/SI Cell issued a letter to all Immigration Check Posts alerting them so that if the petitioner was detected, he should be detained and his detention should be conveyed to Shri R.S. Yadav, Addl. Deputy Commissioner of Police. This letter was sent to all States D.G.Ps, all Seaports and all Airports. A copy of RCN, issued against the petitioner, is on record. The RCN described the petitioner as “fugitive wanted for prosecution”. A warning is there that the petitioner may be “dangerous” and “violent”. The RCN had the photograph of the petitioner and particulars. In the particulars, the offences mentioned are section 498A, 406 and 34 of IPC and maximum possible penalty has been mentioned as ’10 years’ imprisonment’. (This must be an invention made by ACP, as far as IPC is concerned, the maximum punishment for offences under section 498-A & 406 of IPC is up to three years imprisonment.)
  3. 3. A notice of the petition was served upon the respondent and a status report was filed by SHO, P.S. Alipur, Delhi. In the status report it has been stated that after registration of FIR, investigation was taken up and sister and parents of the petitioner were granted anticipatory bail, so they were formally arrested. Since the petitioner was at Canada, he could not be arrested and LOC was got opened against him and also RCN was got issued against him, but the petitioner did not join investigation. A charge-sheet was filed against the petitioner, his parents and his sister; in which the petitioner’s name was kept in column 2. It is submitted that LOC and RCN were got issued against the petitioner during investigation as there was sufficient evidence to show complicity of the petitioner in commission of crime. The NBWs were issued against the petitioner by the Court of learned Metropolitan Magistrate through Ministry of Home Affairs and the date fixed before the Court was 15 th April, 2009.
  4. 4. The RCN, was widely published and also placed on internet. It shows that the petitioner was involved in crime of kidnapping including crime against life and health. It is submitted by CBI that family related crimes are classified in the category of ‘kidnapping’ and that is why Interpol’s public website showed the crime of petitioner as ‘kidnapping’. However, on a protest of petitioner, the offence of kidnapping was deleted from ‘RCN’.
  5. 5. This court also received a reference from ACMM, Patiala House Court regarding guidelines for issuance of LOC and for closure of LOCs. Response of the State/UOI was sought on this reference. In its response, it is stated by UOI that there was no legal definition of LOC. However, LOC was interpreted as a communication received from an authorized government agency with reference to a person who is wanted by that agency for fulfillment of a legal requirement, to secure arrest of a person evading arrest, to nab a Proclaimed Offenders so as to facilitate court proceedings by securing presence of under trials. It is stated that statutory backing for issuance of LOC can be placed to Passport Act, 1967, sections 10A and 10B. Section 10A gives power to a designated officer to suspend passport or render a travel document invalid for a period of 4 weeks and section 10B provides that every intimation given by the Central Government or the designated officer, to any immigration authority at an airport or any other point of embarkation or immigration, restricting or in any manner prohibiting the departure from India or any holder of the Passport or travel document. The other statutory provision relied upon is Section 41 of Cr. P.C. which requires police to arrest any person without warrants. The LOC’s are issued at the behest of different agencies in accordance with Ministry of Home Affairs’ Circular No. 15022/13/78-F.1 dated 5th September, 1979, either to monitor the arrival/ departure of foreigners and Indians or to restrict arrival/departure of foreigners or Indians. It is stated that LOCs are based on the originator’s request to send communication to various immigrations, check posts on the basis of substantive/ procedural laws in respect of persons wanted in some cases. It is admitted that Ministry of Home Affairs’ office memorandum No. 15022/20/98-F.IV dated 27th December, 2000 requires that a request for opening of LOC must be issued with an approval of officer not below the rank of Deputy Secretary to the Govt. of India/ Joint Secretary in the State Government/ Concerned Supdt. of Police at district level and action on the LOC is to be taken in accordance with the directions of the originator. LOC was a part of investigation technique.
  6. 6. A perusal of Interpol documents regarding issuance of RCN would show that the RCN / ‘wanted notice’ are published in respect of offender wanted at international level and it requires that the subject may be arrested in certain country with a view to extradite him to the country where he is wanted and following conditions are to be fulfilled: – The person against whom the notice is to be published has committed an offence against ordinary criminal law. – The offence is an “extraditable offence” under the Indian Extradition Act, 1962. – A warrant of arrest has been issued for his/her arrest. – Extradition will be requested, at least from certain countries.
  7. 7. It is apparent that the offence for which an RCN can be issued must be extraditable offence in the country where the offence is originated and in the country where person is located and a warrant of arrest against the person had been issued.
  8. 8. In the present case, petitioner’s address in Canada was well known to the police as well as to the complainant. No effort was made by the police to initiate extradition proceedings against the petitioner from Canada to Delhi despite the fact that even according to police; the petitioner is wanted since 2003. The information given in RCN is that the petitioner emotionally tortured his wife while his family physically tortured his wife. The RCN requirements provide that the request has to be made to the country if the country is linked by Bilateral Extradition Treaty or by any other Convention or Treaty containing provision of Extradition Treaty.
  9. 9. In another case where LOC was issued at the behest of National Commission of Women (NCW) titled as Vikram Sharma & Ors Vs. Union of India & Ors., decided on 26th July, 2010, High Court observed as under: 
    • “8. As regards the procedure for opening an LOC, reference is made to the MHA circulated dated 5th September 1979. It is stated that:
      • Courts also open LOCs on various legal matters. LOCs are based on the originator?s request who sent the communication to various immigrations check posts on the basis of substantive/procedural laws viz IPC, Cr.P.C., Custom Act, Income Tax Act, NDPS Act, etc. All these communications are related to accused/suspected persons wanted in some cases. Besides, different courts also issue these communications in the form of LOCs including LOCs against those person who evade their presence in the Court of law during the course of judicial trial.”
      • “…9. It is further clear from the reply that in terms of a subsequent O.M. dated 27th December 2000 there is a specific proforma in which a request must be made for opening of an LOC and this should be issued “with the approval of an officer not below the rank of Deputy Secretary to the Government of India/Joint Secretary in the State Government/Concerned Superintendent of Police at district level.”
      • A copy of the Office Memorandum dated 27th December 2000 enclosing proforma for request for opening an LOC has also been enclosed…”
      • “…16. The question now is only for consequential relief that should be granted. The power to suspend, even temporarily, a passport of a citizen, the power to issue an LOC, the power to „off-load? a passenger and prevent him or her from travelling are all extraordinary powers, vested in the criminal law enforcement agencies by the statutory law. These are powers that are required under the law, to be exercised with caution and only by the authorities who are empowered by law to do so and then again only for valid reasons.
    • Recently, in Suresh Nanda v. Union of India 2010 IV AD (Del) 53, this Court, after referring to the judgment of the Supreme Court in Maneka Gandhi v. Union of India (1978) 1 SCC 248, observed:
      • “35. …There has to be application of mind by the authority to the relevant factors that would enable it to come to the conclusion that the impounding of the passport is in the interests of the general public. And then again, in the context of the criminal case which is still under investigation, this cannot be an opinion formed at one point in time. The public interest element will vary depending on the stage of the investigation. It cannot be said that as long as the investigation is not complete, it is not in public interest to release a passport. That would be giving too wide a power to the authority.”
    • ..17. In Bhim Singh v. State of J&K (1985) 4 SCC 677, a member of the Jammu & Kashmir Legislate Assembly was detained by the Police while on his way to attend a session of the assembly. By the time the petition filed by him challenging his detention was heard, he had already been released. Nevertheless, the Supreme Court examined the case and concluded that his detention was unlawful. It then proceeded to award him compensation after observing:
      • Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct. However the two police officers, the one who arrested him and the one who obtained the orders of remand, are but minions, in the lower rungs of the ladder. We do not have the slightest doubt that the responsibility lies elsewhere and with the higher echelons of the Government of Jammu and Kashmir but it is not possible to say precisely where and with whom, on the material now before us. We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this court in Rudul Sah v. State of Bihar (1983) 3 SCR 508 and Sebestian M. Hongray v. Union of India AIR 1984 SC 1026. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case.”
    • This High Court concerning the issuance of LOC in Vikram Sharma (Supra) gave following directions :
      • 19. Mr. Nanda, learned counsel appearing for Respondent No. 1 submitted that in order to ensure that such incidents do not recur, this Court should direct that further instructions/circulars should be issued clarifying the correct legal position. This Court finds that there are a large number of statutory commissions at the level of the Centre and the States which perform judicial functions and are vested with, for the purpose of conducting inquiries upon receiving complaints, the powers of a civil court. These include the National Human Rights Commission („NHRC?), the NCW, the National Commission for Protection of Children?s Rights. These statutory bodies, however, have not been vested with the powers of a criminal court and do not have powers to enforce criminal law. It is for the Government of India to take a policy decision on whether it wants to vest such statutory tribunal/commissions with criminal law enforcement powers. Since as of today, they have no such power, it is imperative that the MHA should issue further clarificatory circulars or office memoranda clearly stating that the request for issuance of LOCs cannot „emanate? from statutory bodies like the NCW. If at all, such bodies should bring the necessary facts to the notice of law enforcement agencies like the police, which will then make the request for issuance of an LOC upon an assessment of the situation, and strictly in terms of the procedure outlined for the purpose. This clarification will be issued by the MHA, in consultation with the other concerned agencies, including representatives of the statutory bodies referred to, within a period of 12 weeks from today….”
  10. 10. In the present case, the LOC was issued against the petitioner soon after the registration of FIR. It is alleged by the petitioner that LOC was issued in view of the fact that complainant’s close relative was an IPS officer. This allegation of the petitioner finds support from the fact that the punishment stated by the police to Interpol in respect of the offences committed has been deliberately given as 10 years while the prescribed punishment is maximum 3 years imprisonment. The petitioner’s description of being ‘violent and dangerous’ also has been added malafidly, with ulterior motive, in view of the fact that allegations against petitioner were of only of emotional torture. Offence of kidnapping was given as the reasons for issuance of RCN, which on the representation of petitioner was removed. It is apparent that the LOC & RCN were issued for extraneous reasons by an officer who was not authorized. The petitioner has also highlighted the difference in statements made by witnesses on different occasions. Since the matter pertaining to these offences is subjudiced, it will not be appropriate to comment on this aspect but suffice it to say that the action against the petitioner of issuing RCN was uncalled for in view of the fact that neither offence, for which the petitioner is facing trial in India, is an extraditable offence, nor any request for extradition of the petitioner has been made for the last 7 years despite knowing whereabouts of the petitioner. I, therefore, consider it a fit case for quashing the RCN issued against the petitioner at the behest of Delhi Police. The RCN, is therefore, hereby quashed.
  11. 11. Look-out-Circular has also been issued against the petitioner as the petitioner is an accused before the Court of M.M. and he has not appeared before the Court of M.M. If the petitioner gives an undertaking before the court for his appearance on a particular date, through his counsel, the Look- out-Circular issued against the petitioner shall be withdrawn within 24 hours of giving undertaking by the petitioner.
    • The questions raised in the reference are as under:
      • “A. What are the categories of cases in which the investigating agency can seek recourse of Look- out-Circular and under what circumstances?
      • B. What procedure is required to be followed by the investigating agency before opening a Look-out-circular?
      • C. What is the remedy available to the person against whom such Look-out-Circular has been opened?
      • D. What is the role of the concerned Court when such a case is brought before it and under what circumstances, the subordinate courts can intervene?
    • The questions are answered as under:
      • A. Recourse to LOC can be taken by investigating agency in cognizable offences under IPC or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest.
      • B. The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs, giving details & reasons for seeking LOC. The competent officer alone shall give directions for opening LOC by passing an order in this respect.
      • C. The person against whom LOC is issued must join investigation by appearing before I.O. or should surrender before the court concerned or should satisfy the court that LOC was wrongly issued against him. He may also approach the officer who ordered issuance of LOC & explain that LOC was wrongly issued against him. LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending or having jurisdiction over concerned police station on an application by the person concerned.
      • D. LOC is a coercive measure to make a person surrender to the investigating agency or Court of law. The subordinate courts’ jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs.
  12. 12. The petitions stand disposed of in above terms.

SHIV NARAYAN DHINGRA, J.

AUGUST 11 , 2010 acm

HC quashes dowry case against NRI brothers. Indian courts can’t hear matter if demand made abroad

Screenshot - 2_17_2018 , 11_13_47 AM

HC quashes dowry case against NRI brothers

Says Indian courts can’t hear the matter if demand for money is made abroad

Source : THE TRIBUNE, PUNJAB

Posted at: Feb 15, 2018, 1:23 AM; last updated: Feb 15, 2018, 1:23 AM (IST)

Saurabh Malik

Tribune News Service

Chandigarh, February 14

The Punjab and Haryana High Court has ruled that dowry demand raised abroad can’t be tried by courts in India. The HC quashed a dowry harassment case against two NRI brothers, accused of instigating their brother to such a demand.

“In the instant case, even if there was instigation at the behest of the petitioners for demand of Rs 5 lakh from the complainant, the demand was raised outside the territorial jurisdiction of Bathinda. Therefore, the courts are not competent to entertain the matter,” Justice Jaishree Thakur ruled.

Justice Thakur said specific role, injury, dowry demand, entrustment of dowry articles, “istridhan” or its misappropriation was not attributed to the petitioners. “It is apparently clear that the FIR has been registered against the petitioners only to harass the family,” the judge added.

The ruling came on a bunch of two petitions filed against Punjab and other respondents by Rajesh Kumar Gupta and Rakesh Kumar Gupta through counsel RS Bajaj. They were seeking the quashing of an FIR dated July 14, 2012, registered at Kahnwan police station in Pathankot district under Sections 406, 498-A, 420 and 34 of the IPC. Directions were also sought for quashing all consequential proceedings. Bajaj told Justice Thakur’s Bench that the petitioners’ brother and the complainant got married in 2006. Subsequently, the parties resided together in England. No complaint was made during that time before the authorities there or during their annual visits to India. A perusal of the FIR also did not reveal that the petitioners attended the marriage ceremony; or that there was any entrustment of dowry articles.

After hearing Bajaj and going through the documents, Justice Thakur referred to the reply filed in the matter before observing that the petitioners were permanent residents of England and residing separately at a distance of 175 km from the complainant’s matrimonial home. “Even if, for the sake of argument, it is taken into account that the petitioners instigated their brother to raise a demand of Rs 5 lakh from the complainant, it was a demand that was raised in England, outside the territorial jurisdiction of the courts in Bathinda. Therefore, the offence, if any, had been committed in England,” Justice Thakur added.

Referring to a similar case before the Supreme Court, she said the parties were residing in Canada, but the FIR was registered in Jalandhar, alleging demand of dowry and misappropriation of dowry articles. “The proceedings were quashed, holding that the Jalandhar court would have no jurisdiction to entertain the matter,” she concluded.

 

 

A #criminal #case, an #abuse of #process of #law 2 implicate accused after 12 years, quashed by SC !

Husbands often seek good quash cases. While it is nice to have 498a quash cases, it is also necessary to understand how various courts approach a quash and how sometimes one has to go up to Apex court to get results

Here is a good case that discusses the facts of the complaint and also various cornerstone cases, before quashing a criminal case, an abuse of the process of law
////////////////17. In view of the above discussion and facts and circumstances of the case, we are of the view that none of the offences for which the appellants are summoned, is made out from the complaint and material on record. We further find that it is nothing but abuse of process of law on the part of the complainant to implicate the appellants in a criminal case after a period of twelve years of execution of registered sale deeds in question, who is neither party to the sale deeds nor a member of the Society. Therefore, we allow the appeal and set aside the orders passed by the High Court and that of the courts below. Accordingly, the order passed by the Magistrate summoning the appellants in the criminal complaint filed by respondent No. 1, in respect of offences punishable under Sections 406, 409 and 420 IPC, also stands quashed.//////////

~~~~~~~~~~~~~~~~~~~~

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.953 OF 2015

(@ Special Leave Petition (Crl.) No. 330 of 2015)

Mr. Robert John D’Souza and others… Appellants

Versus

Mr. Stephen V. Gomes and another… Respondents

J U D G M E N T

Prafulla C. Pant, J.

  1. This appeal is directed against order dated 9.10.2014, passed by the High Court of Karnataka at Bangalore in Criminal Petition No. 658 of 2014 whereby said court has dismissed the petition, and declined to quash the Criminal Complaint case No. 357 of 2012, filed by respondent No. 1, against the appellants.
  2. Brief facts of the case are that a Society named – Mukka Welfare Society was constituted on 28.3.1970 for charitable work and social service, registered under Karnataka Societies Registration Act, 1970. Appellant No. 1, appellant No. 2 and appellant No. 3 were President, Secretary and Treasurer respectively, while appellant Nos. 4 to 7 were Directors of the Society. Other appellants are their relatives. A piece of land bearing S. No. 239/10 measuring 0.50 acres in Village Suratkal, Taluk Mangalore, was purchased by the Society vide registered sale deed dated 28.1.1978 from one Smt. Kaveri Hengsu. It is alleged by the complainant (respondent No. 1) that appellant Nos. 1 to 7, being members of the Executive and Directors of Mukka Welfare Society, misusing the position, held Board Meetings on 22.9.1995 and 13.10.1995 facilitating the sale of the above mentioned land in favour of their relatives (appellant Nos. 7 to 12). The sale deeds were executed on 16.2.1996. It is further stated that the purchasers (appellant Nos. 7 to 12), executed sale deeds in the same year in favour of the Directors of the Society. It is alleged by the complainant/respondent No.1 that the appellants have fraudulently usurped the property through the sale deeds mentioned above, and thereby committed cheating.

  3. The criminal complaint filed by respondent No. 1 was registered by the 1 st Additional Senior Civil Judge and Chief Judicial Magistrate, Mangalore, DK, who, after recording the statement of the complainant under Section 200 of the Code of Criminal Procedure, 1973 (for short “CrPC”), summoned the appellants vide order dated 13.4.2012 in respect of offences punishable under Sections 406, 409, 420 read with Section 34 of Indian Penal Code (IPC). The appellants filed Criminal Revision Petition No. 58 of 2012 before the Principal Sessions & District Judge of D.K. District at Mangalore, which was dismissed vide order dated 6.2.2013. Thereafter, the appellants filed a petition under Section 482 CrPC before the High Court and the same was also dismissed. Hence this appeal through special leave.

  4. We have heard learned counsel for the parties and perused the papers on record.

  5. The impugned orders passed by the High Court and the other authorities below are challenged before us mainly on the following grounds: – (i) Respondent No. 1/complainant is not a member of the “Mukka Welfare Society” nor is he in any manner connected with the affairs of the Society, as such he has no locus to file the criminal complaint. (ii) The sale deeds in question were executed in the year 1996, and the criminal complaint is filed malafide by respondent No. 1 after a period of fourteen years, in the year 2010, as such the courts below have erred in law in not taking note of said fact. (iii) The courts below have erred in law in not appreciating that the complaint in question was filed to get personal vendetta by respondent No. 1 against the Directors of the Society. (iv) The courts below further erred in not considering the fact that the complainant/respondent No. 1 had earlier filed a complaint, with same set of facts, before the Deputy Commissioner, Dakshin Kannada, Mangalore, and the same was sent to Police Station Suratkal for investigation, and the Circle Inspector, after investigation, did not find any offence to have been committed by the appellants, as the dispute was purely of civil in nature. (v) Ingredients of the offences punishable under Sections 406, 409 and 420 IPC are not made out. (vi) None of the transactions of sale in question is against any bye-law or clause of Memorandum of Association of the Society.

  6. In the counter affidavit filed on behalf of respondent No.1, it has been stated that the complainant came to know of the transactions of sale, only in the year 2009, whereafter he complained before the Deputy Commissioner, D.K., as such the issue raised as to delay in filing the complaint is unfounded. It is further stated that the Mukka Welfare Society receives donations from various institutions and general public. The allegation of personal vendetta, pleaded in the appeal by the appellants, has been denied in the counter affidavit. Lastly, defending the orders passed by the courts below, it is stated that the courts below have committed no error of law.

  7. Arguments were advanced by learned counsel for the parties on the above lines pleaded before us. Having considered the submissions of the learned counsel for the parties what is apparent in the present case is that the complainant is not the member of Mukka Welfare Society. It is also not disputed that the sale deeds in question were executed way back in the year 1996 and the complainant, who is not even member of the Society, raises the issue that the sale deeds were executed for the benefit of the Directors of the Society, after a long gap of more than twelve years. Sale deeds in question are registered, and not declared null and void by any court of law. It is also relevant to mention here that admittedly earlier a complaint was made by the complainant to the Deputy Commissioner in the year 2009, which was got investigated by the police and the result of the investigation was that no offence was found committed by the appellants on the ground that the dispute is of civil in nature.

  8. In view of the above facts, apparent on the record, we are of the view that the High Court and the courts below have committed grave error of law in ignoring the same. Needless to say that to constitute an offence punishable under Section 406 IPC, the essential ingredient is the “entrustment” of the property. The complaint filed by the complainant nowhere discloses that the land in question purchased in the year 1978 was entrusted to the Society for the benefit of others. It is only after entrustment is shown, it can be said that there was criminal breach of trust.

  9. In Ram Narayan Popli v. Central Bureau of Investigation 1, this Court, per majority, has explained “entrustment” in paragraph 363 as under: –“ The term “entrustment” is not necessarily a term of law. It may have different implications in different contexts. In its most general signification all it imports is the handing over possession for some purpose which may not imply the conferring of any proprietary right at all.”

  10. In State of Gujarat v. Jaswantlal Nathalal 2, this Court in paragraph 8 has observed that a mere transaction of sale cannot amount to an entrustment.

  11. At this stage we also think it proper to observe that in the present case, even if the allegations made in the complaint are taken to be true, the ingredients of the offence punishable under Section 409 IPC for which appellants are summoned, are also not made out. To constitute an offence punishable under Section 409 IPC, apart from entrustment, it is also essential requirement that it should be shown that the accused has acted in the capacity of a public servant, banker, merchant, factor, broker, attorney or agent. It is nowhere shown in the complaint that the appellants have acted in any of the above capacities.

  12. As far as offence of cheating is concerned, the same is defined in Section 415 IPC, for which the punishment is provided under Section 420 IPC. Section 415 reads as under:-“ 415. Cheating. – Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation. – A dishonest concealment of facts is a deception within the meaning of this section. Illustrations……………”

  13. From the above language of the Section, one of the essential ingredients for the offence of cheating is deception, but in the present case, from the contents of the complaint it nowhere reflects that the complainant was deceived or he or anyone else was induced to deliver the property by deception. What was done, was so reflected in the resolutions, and sale deeds.

  14. In Mathavrao Jiwajirao Scindia and others v. Sambhajirao Chandrojirao Angre and others 3, a three-Judge Bench of this Court has laid down the law as to quashment of proceedings under Section 482 CrPC as follows:-“ 7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”

  15. In Suresh v. Mahadevappa Shivappa Danannava and another 4, criminal prosecution was quashed by the Court in respect offence of cheating noticing that the complaint was filed after a lapse of ten years.

  16. In Inder Mohan Goswami and another v. State of Uttaranchal and others 5, this Court in paragraphs 25 and 46 has observed as under: –“ 25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP (1964 AC 1254) Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys (1977 AC 1) stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court’s power to prevent such abuse is of great constitutional importance and should be jealously preserved. xxx xxx xxx 46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.”

  17. In view of the above discussion and facts and circumstances of the case, we are of the view that none of the offences for which the appellants are summoned, is made out from the complaint and material on record. We further find that it is nothing but abuse of process of law on the part of the complainant to implicate the appellants in a criminal case after a period of twelve years of execution of registered sale deeds in question, who is neither party to the sale deeds nor a member of the Society. Therefore, we allow the appeal and set aside the orders passed by the High Court and that of the courts below. Accordingly, the order passed by the Magistrate summoning the appellants in the criminal complaint filed by respondent No. 1, in respect of offences punishable under Sections 406, 409 and 420 IPC, also stands quashed.

………………

……………..J. [Dipak Misra]

……………………………..J. [Prafulla C. Pant]

New Delhi;

July 21, 2015.

1 (2003) 3 SCC 641

2 AIR 1968 SC 700

3 (1988) 1 SCC 692

4 (2005) 3 SCC 670

5 (2007) 12 SCC 1