Tag Archives: Madras HC

Accused cannot be prosecuted on diff section , #fresh material brought much after #ChargeSheet & #FramingCharge ! #Husband cannot be prosecuted for #ipc493

Accused cannot be prosecuted on basis of #fresh material brought in much after #FIR. Also, #Husband cannot be prosecuted for #ipc493. Story of a #liveIn !

 

Excerpts : “….Therefore, the question that arises is as to whether the petitioner could be convicted under Section 493, I.P.C., on the basis of the new materials introduced, for the first time in the Court, which were not available during investigation. The answer could be the emphatic ‘no’. The reason is that the evidence for the offence under Section 493, I.P.C. cannot be relied upon, since the witnesses have not given these materials at the earliest point of time, or at least before the charge sheet was filed…..”

Notes : A live in woman initially files #ipc420 on a male claiming that he has married another woman. Then she claims that a valid marriage took place on exchange of garlands at Temple, but tries to frame him (the same man) under sec #ipc493 . Lower courts convict him on #ipc493 – #Sex after deceitfully inducing belief of lawful marriage. But Honourable Madras HC sees thru her game and acquits the man, She looses on both #ipc420 and #ipc493 !! HC tells her to file for bigamy or go claim maintenance !!


Madras High Court

Murugaswamy vs State Represented By S.I. Of … on 15 March, 1996

Equivalent citations: 1996 (2) CTC 160

Author: M Karpagavinayagam

Bench: M Karpagavinayagam

ORDER M. Karpagavinayagam, J.

  1. This revision is directed against the judgment dated, 7.9.1993 in C.A. No. 102 of 1991, on the file of the First Additional Sessions Judge, Coimbatore. Originally, the petitioner Murugaswamy was convicted for the offence under Section 493, I.P.C., and sentenced to undergo R.I. for two years and to pay a fine of Rs. 1,000 in default to undergo R.I. for one month, by the learned Judicial Magistrate, Mettupalayam in C.C. No. 624 of 1989, dated 8.7.1991. Against this judgment, the above said criminal appeal had been preferred by the petitioner herein, in which the learned lower appellate Court while dismissing the appeal, confirmed the conviction and sentence imposed upon the petitioner by the trial Court.
  2. The facts leading to the judgment of conviction are as follows:- P.W.1 Bhagawathiammal is a resident of Mudalipalayam. When she was staying at Melkathavukarai village, she had developed intimacy with the petitioner, who was the neighbour. Since the petitioner assured P.W. 1 that he would marry her, P.W.1 allowed him to have inter-course with her and at Melkathavukarai village they were living as husband and wife under one roof for one year. After shifting her residence to Mudalipalayam village, there also they lived together for about three years. But suddenly, the petitioner stopped coming to her house on the instigation of his parents. At that time she was pregnant of three months. Finding no other alternative, P.W.1 gave complaint Ex.P1 to Annoor police station on 7.7.1987, which was registered in Cr. No. 172 of 1987 by P.W.7 Nandakumar, Sub-Inspector of Police, under Section 420, I.P.C. The petitioner was arrested and released on bail subsequently.

  3. After coming out on bail, the petitioner took P.W.1 to Maruthamalai temple and married her by exchanging garlands and tying of thali. After the said marriage, they were living together for four or five months. Suddenly, the petitioner again stopped coming to the house of P.W.1. In the mean time, a child was born to her. Subsequently, she came to know that the petitioner married another woman.

  4. P.W.7, Sub-Inspector of Police during the course of investigation in this case, examined P.W.2 Marathal, P.W.3 Perumal Gounder, P.W.4 Ponnammal and P.W.5 Ramaswamy, the neighbour to speak about the fact that the petitioner and P.W.1 were living together as husband and wife under one roof and that P.W.1 consented to live with the petitioner, without any valid marriage since she was assured by him that he would marry her, in the near, future. After registration of the above complaint, P.W.6 Doctor Nirmala, examined P.W.1, at the request of police and issued Ex.P2 certificate to the effect that she was pregnant of 22 weeks. After completion of investigation, on 5.12.1987 P.W.7 Sub-Inspector of Police filed the charge sheet against the petitioner under Section 420 I.P.C. However, P.W.7 has not conducted any investigation with reference to the marriage held between the petitioner and P.W.1 at Maruthamalai temple after the case was registered. On the basis of the F.I.R. and the statements in support of the accusation in the F.I.R., the charge sheet was filed for the offence under Section 420, I.P.C.

  5. The learned Judicial Magistrate, who took the case on file under Section 420, I.P.C., in C.C. No. 624 of 1989, after furnishing copies to the petitioner under Section 207, Cr.P.C., as well framed the charge under Section 420, I.P.C., alleging that he cheated the complainant P.W.1 by making a false assurance of marriage, to have inter-course with her and made her pregnant. He denied the said charge and claimed to be tried. P.Ws. 1 to 5 were examined by the trial Court. During the course of examination of P.W. 1, since she stated that subsequent to the registration of her complaint, marriage between the petitioner and P.W.1 had taken place at Maruthamalai by exchanging garlands and tying of thali, the Assistant Public Prosecutor, who appeared before the trial Court, filed a petition under Section 216, Cr.P.C., requesting the Court to alter the charge into one of Section 493, I.P.C., on the basis of available evidence. On that aspect the parties were heard. Thereafter, the charge in the present case was altered into one of Section 493, I.P.C.

  6. Fresh charge was again framed, and read over to the petitioner, to which he said that he was innocent. Subsequently, two more witnesses were examined, viz. P.W.6 Doctor and P.W.7 Sub-Inspector of Police.

  7. After the examination of witnesses, the petitioner was questioned under Section 313, Cr.P.C., He denied the incriminating circumstances appearing against him. No defence witness was examined.

  8. After termination of the trial, the learned Judicial Magistrate, on appreciation of the oral and documentary evidence found the petitioner guilty for the offence under Section 493, I.P.C. and sentenced him as referred above. Aggrieved over this, the petitioner filed an appeal in C.A. No. 102 of 1991 on the file of First Additional Sessions Judge, Coimbatore, which was dismissed on 7.9.1993, confirming the conviction and sentence. Hence this revision.

  9. Heard learned counsel appearing on either side.

10. The above revision has to be allowed on the following simple ground. The First Information Report was registered by P.W.7 Sub-Inspector of Police, under Section 420, I.P.C. Charge sheet was also filed under the same Section, on the basis of materials constituting the offence of cheating collected during the course of investigation. The learned trial Magistrate also framed the charge, at first, for the offence under Section 420, I.P.C. against the revision petitioner. Only after examination of five witnesses on the side of prosecution, the charge was altered into one of Section 493, I.P.C. It is clearly apparent that the materials adduced before the Court constituting the offence under Section 493, I.P.C. during the examination of witnesses in Court were not available at the time of filing the charge sheet. Therefore, the question that arises is as to whether the petitioner could be convicted under Section 493, I.P.C., on the basis of the new materials introduced, for the first time in the Court, which were not available during investigation. The answer could be the emphatic ‘no’. The reason is that the evidence for the offence under Section 493, I.P.C. cannot be relied upon, since the witnesses have not given these materials at the earliest point of time, or at least before the charge sheet was filed. It is strange that the learned trial Magistrate as well as the lower appellate Judge have over-looked this aspect and have not considered even the semblance of the said legal position, while convicting the petitioner for the offence under Section 493, I.P.C.

  1. Yet another ground warranting interference of this Court, in the finding arrived at by both the Courts below is as follows:- At this stage, nevertheless, it has become relevant for me to quote Section 493, I.P.C., which relates to cohabitation caused by a man deceitfully inducing a belief of lawful marriage: – “Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”. As per this section, the prosecution has to prove four ingredients. They are:- (1) that the accused cohabited with the prosecutrix. (2) That he is not legally married her. (3) That she had consented to the cohabitation, believing that she had been lawfully married to him. (4) That such belief in her was induced by deceit on the part of the accused. On perusal of the evidence available on record, I have no hesitation to come to the conclusion that these ingredients have not been fully proved by the prosecution.

  2. The evidence of P.W.1, though adduced belatedly before the Court, is that after the registration of her complaint, the petitioner/accused took her to Maruthamalai temple and married her by exchanging garlands and tying thali and then thereafter they lived together as husband and wife for four or five months. Of course in their evidence, the neighbours have not referred about this marriage and they merely speak about their living under one roof before the above said marriage. So, it is to be seen whether this piece of evidence as spelt out by P.W.1, relating to her marriage with the petitioner at Maruthamalai temple could be construed to be the material satisfying all the four ingredients of the offence under Section 493, I.P.C. The third ingredient, viz, that she had consented to the cohabitation, believing that she had been lawfully married to him, is totally, absent. In fact, the evidence of P.W.1 is very clear to the factotum of their valid marriage performed at Maruthamalai temple. She had categorically stated in her evidence adduced on 11.10.1990, before the learned Judicial Magistrate, Mettupalayam as hereunder:- The above piece of evidence clearly reveals that there is a lawful marriage existing in between the petitioner and P.W.1 and the cohabitation for four or five months as referred to by P.W. 1 in his examination could be only after this lawful marriage. Once the marriage was held to be valid and lawful, the charge for the offence under Section 420 ceases to exist. That was the reason why learned Assistant Public Prosecutor, appeared before the trial Court must have filed an application for altering the charge into one under Section 493, I.P.C. However, both the Courts below have lost sight of an important aspect with regard to the materials as spelt out by P.W.1 relating to the valid marriage and subsequent cohabitation. From the above aspects, it is very clear, that the charge under Section 493, I.P.C. fails. There is no cross-examination on the part of the petitioner, who subsequently became her husband, with regard to the factum of marriage. The validity of the marriage has also not been questioned in any manner. On considering all the above materials, there is no difficulty in holding that there was a valid marriage held in Maruthamalai temple in between the petitioner and P.W.1 and thereby the petitioner was elevated to the status of husband of P.W.1. In view of the above conclusion, I cannot endorse the view of both the courts below, for conviction of the petitioner for the offence under Section 493, I.P.C.

  3. In that view of the matter, the conviction and sentence imposed the petitioner for the offence under Section 493, I.P.C. are set aside and he is acquitted in respect of the above charge and the fine amount, if paid, by the petitioner is directed to be refunded to him. Accordingly, the revision is allowed. However it is open to P.W.1 Bhagawathiammal, the wife of the petitioner to proceed against the petitioner for maintenance under Section 125, Cr.P.C. or to prosecute the petitioner under Section 494, I.P.C., if so advised.

#alpha #Corrupt #Karti P. #Chidambaram LOC quash. HC says #LOC issued in #HOT Haste. #Husbands pl try 2 use this case

In this beautiful case, the LOC issued on Karti P Chidambaram is assailed .

This case starts with the Gory details of #fraud, #nepotism, #favoritism that the ministers and others had and how they tried to circumvent the law for personal benefit. The father son nexus is also blown in the first few pages

Then the matter of LOC is discussed

As per the appellant a notice was issued under Section 41-A(1) read with Section 41(1)(b) of the Criminal Procedure Code calling upon the petitioner (Karti Chidambaram) to appear before the Station House Officer/Investigation Officer on 29.6.2017 at 1030 Hours. On the very next day, i.e. 16.6.2017, the impugned Look out Circular (LOC) was issued.

In this case, the HON court goes thru the conditions necessary / precedent to issuance of LOC, how this LOC (an executive order) should NOT interfere with constitutional rights or liberty etc, clarifies on the jurisdiction (of Madras HC) and finally quashes the LOC

Political leanings apart, this is a good case to study and use because We see that such pressure tactics is mounted on many innocent NRIs as well, to coerce them that they will loose their jobs (and so forced to pay ransom)

Husbands are also threatened similarly and many of them REALLY do NOT get good cases to follow or arguments to put forward

We hope this case helps innocents trapped in marriage and matrimonial fued

lookout 1 jpg
IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 19.03.2018

DELIVERED ON : 23.07.2018

CORAM :

The Hon’ble Ms.INDIRA BANERJEE, CHIEF JUSTICE

AND

The Hon’ble Mr.JUSTICE ABDUL QUDDHOSE

W.P.Nos.21305 and 20798 of 2017
and WMP Nos.22241, 22242, 21645 and 21646 of 2017

W.P.No.21305 of 2017:

Karti P.Chidambaram .. Petitioner
-vs-
1.Bureau of Immigration,
Ministry of Home Affairs,
Government of India,
rep. by its Commissioner (Immigration),
East Block VIII, Leval V,
Sector 1, R.K.Puram,
New Delhi 110 066.

2.The Deputy Inspector General/Head of Branch (HOB),
Economic Offences Unit – IV, EO-II,
Central Bureau of Investigation Head Office,
4th Floor, Opp. Electronics Niketan,
CGO Complex, Lodhi Road,
New Delhi 110 003.

3.Foreigner Regional Registration Officer (FRRO),
Bureau of Immigration,
Ministry of Home Affairs,
Government of India,
Sastri Bhavan Annex Building,
No.26, Haddows Road, Chennai 600 006.

4.The Assistant Foreigners Regional Registration Officer,
Bureau of Immigration,
Anna International Airport,
Meenambakkam Airport,
Chennai 600 027. .. Respondents

W.P.No.20798 of 2017 :

Karti P.Chidambaram .. Petitioner

-vs-

1.Foreigner Regional Registration Officer (FRRO),
Bureau of Immigration,
Ministry of Home Affairs,
Government of India,
No.26, Haddows Road,
Chennai 600 006.

2.The Secretary,
Ministry of Home Affairs,
Government of India,
South Block,
New Delhi 110 001.

3.The Deputy Inspector General/HOB,
EO-II, Central Bureau of Investigation,
10th Floor, Plot No.5-B, CGO Complex,
New Delhi 110 003. .. Respondents
W.P.No.21305 of 2017 filed under Article 226 of the Constitution of India praying for issue of Writ of Certiorari calling for the records of the 1st respondent relating to the Look Out Circular having Reg.No.1/SIC (DMC)/LOC/2017-5812, dated 16.06.2017 issued by the 1st respondent in respect of the petitioner and quash the same as an abuse of authority, without jurisdiction, issued for extraneous considerations and vitiated by malafides.

W.P.No.20798 of 2017 filed under Article 226 of the Constitution of India praying for issue of Writ of Declaration, declaring that the Look Out Circular issued by the 1st respondent in purported exercise of the powers conferred under Section 10B of the Pass Port Act, 1967, in the case of the petitioner is an arbitrary exercise of power, abuse of authority, vitiated by malafides, ultra vires and without jurisdiction and consequently, direct the 1st respondent to recall the Look Out Circular issued by the 1st respondent naming the petitioner.
For Petitioner : Mr.Gopal Subramanium
Senior Advocate
for M/s.C.Uma

For Respondents : Mr.V.Venkatesan
SCGSC
for respondent Nos.1,3 & 4
in WP.21305 of 2017
and respondents 1 and 2
in WP.20798 of 2017

Mr.G.Rajagopalan
Addl. Solicitor General
assisted by
Mr.K.Srinivasan
for 2nd respondent
in WP.21305 of 2017
and 3rd respondent in
WP.20798 of 2017

COMMON ORDER

Ms.INDIRA BANERJEE, CHIEF JUSTICE

  1. 1. These writ petitions are directed against a Look Out Circular being reference No.1/SIC (DMC)/LOC/20175812, dated 16.6.2017, issued in respect of the petitioner by the Bureau of Immigration under the Ministry of Home Affairs of Government of India.
  2. 2. On 15.5.2017, the Central Bureau of Investigation (hereinafter referred to as the CBI) filed an FIR against the petitioner before the Special Judge, CBI Court, New Delhi, under Sections 120-B and 420 of the Indian Penal Code read with Sections 8 and 13 of the Prevention of Corruption Act, 1988.
  3. 3. The petitioner in these writ petitions was named as the third accused in the said FIR, the others named as accused being:
    (i)M/s.INX Media (P) Ltd., Mumbai, hereinafter referred to as INX Media, through the then Director, Indrani Mukherjea and others (first accused);
    (ii) M/s.INX News (P) Ltd., hereinafter referred to as INX News, through the then Director, Sh.Pratim Mukherjea @ Peter Mukherjea and others (second accused);
    (iii) M/s.Chess Management Services (P) Ltd., hereinafter referred to as CMS, represented through its Director, Sh.Karti P.Chidambaram, being the petitioner and others (fourth accused);
    (iv) M/s.Advantage Strategic Consulting (P) Ltd., hereinafter referred to as ASC, represented through its Director, Ms.Padma Vishwanathan @ Padma Bhaskararaman and others (fifth accused); and
    (v)other unknown officers of the Ministry of Finance, Government of India and other unknown persons.
  4. 4. INX Media, the first accused was apparently incorporated on 8.8.2006 under the provisions of the Companies Act, 1956, to carry on the business of creating, operating, managing and broadcasting a bouquet of television channels, including Hindi and vernacular entertainment channels.
  5. 5. On or about 13.3.2007, INX Media applied to the Chairman, Foreign Investment Promotion Board (hereinafter referred to as the FIPB) of the Department of Economic Affairs, Ministry of Finance, Government of India, seeking its approval for permission to issue by way of preferential allotment, in one or more tranches (i) upto 14,98,995 equity shares of Rs.10 each, and (ii) upto 31,22,605 convertible, non cumulative, redeemable preference shares of Rs.10 each collectively representing approximately 46.216% of the Issued Equity Share Capital of INX Media on an as converted basis to three non resident investors under the Foreign Direct Investment route, namely:
    (i)Dunearn Investment (Mauritius) Pte. Ltd.;
    (ii) NSR-PE Mauritius LLC; and
    (iii) New Vernon Pvt. Equity Ltd.
  6. 6. INX Media had in its application dated 13.3.2017 also expressed its intention, subject to the provisions of applicable laws, to make a down stream financial investment to the extent of 26% of the issued and outstanding equity share capital of INX News.
  7. 7. The application of the company seeking FIPB approval was received and acknowledged by the Department of Economic Affairs, FIPB Unit, Ministry of Finance, through its letter dated 15.3.2007. Thereafter, by a Memorandum dated 16.3.2007, the FIPB Unit forwarded the proposal of INX Media to various departments of the Government of India for their comments.
  8. 8. The FIPB at its meeting held on 18.5.2007 recommended the proposal of INX Media for consideration and approval of the then Finance Minister. However, the FIPB did not approve the down stream investment by INX Media in INX News. The recommendation of FIPB was approved by the then Finance Minister, Shri.P.Chidambaram, who happens to be the father of the petitioner. https://twitter.com/ATMwithDick/status/1022809872470106112
  9. 9. The FIPB Unit issued a press release dated 30.5.2007 indicating the details of proposals approved in the FIPB meeting. The quantum of FDI (Foreign Direct Investment)/NRI (Non-Resident Indian) inflow against M/s.INX Media was shown as Rs.4.62 crores. The approval was intimated vide a letter dated 31.5.2007.
  10. 10. In the FIR, it is alleged that in contravention of the terms of the approval of FIPB conveyed vide the aforesaid letter dated 31.5.2007, INX Media deliberately made a down stream investment to the extent of 26% in the capital of INX News without the specific approval of FIPB. The down stream investment included indirect foreign investment by the same foreign investors and generated more than Rs.305 crores Foreign Direct Investment in INX Media as against the approved foreign inflow of Rs.4.62 crores by issuance of shares to foreign investors at a premium of more than Rs.800/- per share.
  11. 11. It is further alleged that in order to wriggle out of the situation without any punitive action, INX Media, upon receipt of the letter dated 31.5.2007 from the FIPB Unit, entered into a criminal conspiracy with the petitioner, son of the then Finance Minister of India and Promoter Director of CMS, to get the issues resolved/addressed amicably by influencing the officials of the FIPB of the Ministry of Finance, taking wrongful advantage of his relationship with the then Finance Minister.
  12. 12. Based on clarifications by CMS, INX Media, through its letter dated 26.6.2008, tried to justify its action on both the counts. It is alleged in the FIR that INX Media falsely claimed that the unapproved and unauthorized down stream investment was in accordance with the approval. INX Media further justified the excess foreign inflow receipt, as premium received against shares issued.
  13. 13. In the FIR, it is also alleged that information discloses that upon receipt of the aforesaid letter of INX Media, the concerned officials of FIPB, who had been influenced by the petitioner, Mr.Karti P.Chidambaram, ignored the illegalities on the part of INX Media. In abuse of their official position, these officials showed undue favour to the INX Group of Companies and advised INX News to apply afresh for FIPB approval in respect of down stream investment. It is also alleged that the officials of the FIPB ignored the request of the Department of Revenue to investigate into down stream investment made by INX Media without FIPB approval.
  14. 14. It is stated in the FIR that information discloses that INX News, concealing the investment in INX Media to the extent of 26%, again approached FIPB for permission for down stream investment in pursuance of a criminal conspiracy. Such deceitful and fallacious proposals were favourably considered by the officials of the Ministry of Finance and approved by the then Finance Minister. Concurrence to a proposed investment when investment had been made without the approval of the Finance Ministry, smacks of malafides and dishonest intention on the part of the officials of the Ministry, who did not take any punitive action against INX Media, but covered up the illegality by seeking an application from INX News and granting permission to INX News. The permission gave an erroneous impression that INX News was yet to receive the foreign investment.
  15. 15. It is stated in the FIR that, pursuant to the criminal conspiracy with INX Group and the intermediaries, senior officials of the Ministry of Finance not only granted illegal approval, but also misinformed (sic misled) the investigation by the Investigation Wing of the Income Tax in this regard.
  16. 16. As per the FIR, information discloses that in consideration for the services rendered by the petitioner to the INX Group, through CMS, payments were received against invoice raised on INX Media by ASC. As per source information, the reason for getting the invoice raised in the name of ASC for services rendered by CMS was to conceal the identity of the petitioner, since the petitioner was Director of CMS, when the invoice was raised and the payment was received.
  17. 17. In the FIR, it is alleged that ASC was being controlled by the petitioner indirectly. In the FIR, it is further alleged that information discloses that invoices for approximately 3.5 crores were raised in favour of the INX Group in the name of other companies, in which the petitioner had sustainable interests either directly or indirectly. Such invoices were falsely raised for creation and acquisition of media content; consultancy in respect of market research; acquisition of content of various genre of audio or video, etc. INX Group, in its records, mentioned the purpose of payment of Rs.10 lakhs to ASC as towards Management consultancy charges towards FIPB notification and clarification.
  18. 18. The FIR has been filed on the contention that the acts and omissions, as aforesaid, prima facie disclose commission of offence under Section 120-B read with Section 420 of the Indian Penal Code and Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against INX Media; INX News; the petitioner, Mr.Karti P.Chidambaram; CMS, through the petitioner, Mr.Karti P.Chidambaram, its Director and others; and ASC, through its Director, Smt. Padma Vishwanathan @ Padma Bhaskaraman and others, as also unknown officers and/or officials of FIPB and other unknown persons.
  19. 19. The allegation against the petitioner in the FIR was of rendering his good offices to the INX Group, through CMS, in getting issues against INX Group scuttled by influencing officials and/or in other words, securing favours for the INX Group against disguised consideration received from INX Media, through ASC. The petitioner has apparently not himself been accused of misappropriation, embezzlement, financial illegalities and/or economic offences.
  20. 20. On 15.6.2017, that is after about a month, a notice was issued under Section 41-A(1) read with Section 41(1)(b) of the Criminal Procedure Code calling upon the petitioner to appear before the Station House Officer/Investigation Officer on 29.6.2017 at 1030 Hours. On the very next day, i.e. 16.6.2017, the impugned Look out Circular (LOC) was issued.
  21. 21. In these writ petitions, the Court is not concerned with the veracity of the allegations in the aforesaid FIR, or with the legality of the criminal case started on the basis of the same, but only with the question of validity and/or maintainability of the impugned Look Out Circular.
  22. 22. By an order dated 10.8.2017, a learned Single Bench of this Court passed an interim order of stay of the impugned LOC dated 16.6.2017 and gave directions for filing of counter-affidavits.
  23. 23. The CBI filed an application for Special Leave to Appeal, being S.L.P.Nos.20699 20700 of 2017, in the Supreme Court challenging the aforesaid interim order.
  24. 24. By an order dated 14.8.2017, the Hon’ble Supreme Court stayed the interim order passed by the learned Single Judge. Thereafter, diverse orders were passed by the Supreme Court from time to time and ultimately, by an order dated 31.1.2018, the Special Leave Petitions were finally disposed of, inter alia, directing the Division Bench of this Court, presided over by the Chief Justice, to decide these writ petitions. All the issues raised in these two writ petitions, including the issue of territorial jurisdiction of this Court to entertain these writ petitions, have been kept open for this Court to adjudicate.
  25. 25. On 7.2.2018, this Division Bench of this Court directed that the matter be fixed for hearing on 12.2.2018 at 10.30 AM. Notice was directed to be issued to the CBI through the CBI Counsel and the learned counsel was directed to file counter-affidavits, if any, in the meanwhile. However, when the writ petitions were taken up for hearing on 12.2.2018, the learned Additional Solicitor General submitted that the CBI had only filed counter-affidavit to the Miscellaneous Petition filed by the petitioner for leave to the petitioner to travel abroad being W.M.P.No.3031 of 2018 , but had not filed the counter-affidavit to the main writ petitions. The said Miscellaneous Petition for leave to travel has been heard and disposed of.
  26. 26. It appears that the CBI misunderstood the order dated 7.2.2018 of this Court, whereby this Court had directed that counter affidavits, if any, be filed within 12.2.2018. It was not our intention that counter affidavit be only filed to the Miscellaneous Petition. Moreover, as early as on 10.8.2017, the learned Single Judge had issued directions for counter affidavits in the main writ petitions. Be that as it may, for the ends of justice, we granted time to the respondents till 23.2.2018 to file counter affidavits in the main writ petition. Pursuant to the aforesaid direction, a counter-affidavit has duly been filed and the writ petitions are now ready for final hearing. https://twitter.com/ATMwithDick/status/1022809872470106112
  27. 27. Mr.Gopal Subramanium argued that on 15.5.2017 raids were conducted in diverse premises not only of the petitioner, but also of others associated with the petitioner, after which the FIR was lodged. Notice under Section 41-A(1) read with Section 41(1)(b) of the Criminal Procedure Code was issued on 15.6.2017, directing the petitioner to appear before the CBI on 29.6.2017. However, on the very next day, that is on 16.6.2017, the impugned LOC was issued.
  28. 28. Mr.Gopal Subramanium referred to an Office Memorandum of Government of India, Ministry of Home Affairs, No.25016/31/2010-Imm., dated 27.10.2010, which lays down the principles for issuance of an LOC.
  29. 29. Mr.Gopal Subramanium submitted that by a judgment delivered on 11.8.2010 in W.P. (Crl.) No.1315/2008 (Sumer Singh Salkan v. Assistant Director and others) and Crl.Ref.1/2006 (Court on its Own Motion Re: State v. Gurnek Singh, etc.), the High Court of Delhi held that recourse to LOC could be taken by an Investigating Agency in case of cognizable offences under the Indian Penal Code or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite non-bailable warrants (NBWs) and other coercive measures and there was a likelihood of the accused leaving the country to evade trial/arrest. The principles as laid down in the aforesaid judgment have been accepted and adopted by the Ministry of Home Affairs by the Office Memorandum referred to above.
  30. 30. On a perusal of the said memorandum dated 27.10.2010, it is patently clear that LOC is a coercive measure to make a person surrender to the Investigating Agency or Court of law. The LOC has apparently been issued prematurely, in haste.
  31. 31. It is a matter of record that the FIR has been lodged on 15.5.2017 in respect of alleged offences which took place in the year 2007-2008. Notice under Section 41-A(1) read with Section 41(1)(b) of the Criminal Procedure Code was issued to the petitioner on 15.6.2017 calling upon the petitioner to appear on 29.6.2017.
  32. 32. Mr.Gopal Subramanium argued that the request for issuance of LOC was made even before notice under Section 41-A(1) read with Section 41(1)(b) of the Criminal Procedure Code was issued to the petitioner.
  33. 33. Be that as it may, on the face of the records, the LOC was issued on 16.6.2017, one day after notice was issued calling upon the petitioner to appear on 29.6.2017.
  34. 34. Mr.Gopal Subramanium submitted that the petitioner duly appeared before the CBI on 23.8.2017 and 28.8.2017. He has been cooperating with the investigation.
  35. 35. Mr.Gopal Subramanium argued that a person cannot be deprived of a fundamental right by executive fiat, in the absence of statutory sanction. In support of his submission, Mr.Gopal Subramanium cited Maneka Gandhi v. Union of India, reported in (1978) 1 SCC 248 and K.S.Puttaswamy v. Union of India, reported in (2017) 10 SCC 1.
  36. 36. Mr.Gopal Subramanium submitted that the respondents have not been able to disclose the authority of law under which the respondents were issuing the Look Out Circulars. Mr.Gopal Subramanium also argued that even assuming that executive orders could be issued to abrogate fundamental rights, it was clear from the guidelines which had been issued by the Central Government on 27.10.2010 that a Look Out Circular should not be issued mechanically, but must only be issued when good reasons exist and when a person is avoiding warrants of arrest or avoiding trial in a criminal case.
  37. 37. Mr.Gopal Subramanium emphasized that the expression avoiding warrants of arrest or non-bailable warrants of arrest is in distinction to the power exercised by a police officer under Section 41 of the Code of Criminal Procedure, where the police officer can upon the existence of certain conditions, arrest without warrant.
  38. 38. Mr.Gopal Subramanium argued that it is only when warrants of arrest have to be executed, which involve application of judicial mind, and there is a possibility that the execution of the warrants of arrest can be frustrated, that a look out circular can be viewed as an aid.
  39. 39. Mr.Gopal Subramanium argued that it was clear from the facts of this case that the Look Out Circular dated 16.6.2017 was issued by non application of mind on the part of the concerned authority and in particular, non consideration of the following facts:
    • (i)CBI had failed to disclose to the competent authority that it had issued notice under Section 41A of the Code of Criminal Procedure;
    • (ii) The concerned authorities proceeded on the erroneous belief that the Look Out Circular could be issued simultaneously with notice under Section 41A of the Code of Criminal Procedure;
    • (iii) Notice under Section 41A of the Code of Criminal Procedure was a step anterior to a step under Section 41 of the Code of Criminal Procedure [vide Arnesh Kumar v. State of Bihar, reported in (2014) 8 SCC 273];
    • (iv) When first notice issued on 16.6.2017 and made returnable on 29.6.2017 had been replaced by a further notice dated 4.7.2017, the concerned authorities had, by necessary implication, accepted the contention of the petitioner that he was traveling abroad and that he would attend to the notice immediately upon his return.
  40. 40. Mr.Subramanium emphatically reiterated that the condition precedent for issuance of a look out circular was attempt to evade arrest. The petitioner was not in any manner seeking to evade the trial, since the case is at the stage of investigation and a final report or charge sheet has not been filed. In the absence of filing of a charge sheet or a final report, it could not be assumed that the petitioner was going to evade trial.
  41. 41. As argued by Mr.Gopal Subramanium, the issuance of a look out circular is amenable to judicial review under Article 226 of the Constitution of India. The issuance of look out circular is not equivalent to a decision of a Tribunal or a judicial authority which can be said to be subject to the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India.
  42. 42. Appearing on behalf of the CBI, Mr.Rajagopalan, learned Additional Solicitor General has taken a preliminary objection to the writ petitions contending that this Court lacks territorial jurisdiction to entertain the same. The learned Additional Solicitor General submitted that this Court lacked territorial jurisdiction to entertain the writ petitions, as no part of cause of action could be said to have arisen within the jurisdiction of this Court. He submitted that it was not in dispute that the FIR was registered against the petitioner at New Delhi. https://twitter.com/ATMwithDick/status/1022809872470106112
  43. 43. Citing the judgment of the Supreme Court in Dashrath Rupsingh Rathod v. State of Maharashtra, reported in (2014) 9 SCC 129, the learned Additional Solicitor General submitted that the civil concept of part of cause of action cannot be pari materia borrowed for ascertaining the jurisdiction in cases of criminal prosecution.
  44. 44. The judgment in Dashrath Rupsingh Rathod, supra, cited by the learned Additional Solicitor General has no application in this case, where the territorial jurisdiction to entertain a writ petition is in question and not the territorial jurisdiction for entertaining a criminal complaint. In Dashrath Rupsingh Rathod, supra, the Court held that territorial jurisdiction for filing a complaint for cheque dishonour was restricted to the Court within whose jurisdiction the offence has been committed.
  45. 45. On the face of the FIR, referred to above, the petitioner has been named accused with his address 16, Pycrofts Garden Road, Thousand Lights, Chennai 600 006, which is within the jurisdiction of this Court. The FIR has been filed on suspected offence of criminal conspiracy, cheating, taking gratification to influence public servant and criminal misconduct. In the FIR, the place of occurrence of the offence is shown amongst other places to be Delhi, Mumbai and Chennai, within the jurisdiction of this Court.
  46. 46. Notice under Section 41A(1) read with 41(1)(b) of the Criminal Procedure Code has been addressed to and served on the petitioner at 16, Pycrofts Garden Road, Thousand Lights, Chennai 600 006, within the jurisdiction of this Court.
  47. 47. Though the impugned Look Out Circular appears to have been issued to the Head of Branch, Economic Offences Wing IV, CGO Complex, Lodhi Road, New Delhi-110003, a part of cause of action has certainly arisen within the jurisdiction of this Court. LOC is a coercive measure to make a person surrender to an investigating agency or a Court of law. The LOC would be enforced against the petitioner within the jurisdiction of this Court. The impugned LOC will affect his fundamental rights and in particular his right to equality, personal liberty, free movement, privacy, in and around Chennai and Tamil Nadu, within the jurisdiction of this Court. It cannot be said that this Court lacks territorial jurisdiction to entertain the writ petitions.
  48. 48. Learned Additional Solicitor General submitted that even assuming that notices were received within the jurisdiction of this Court, that would not in itself confer jurisdiction on this Court since the Court might refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. In support of his submission, the learned Additional Solicitor General cited Kusum Ingots and Alloys Limited v. Union of India and another, reported in (2004) 6 SCC 254.
  49. 49. In Kusum Ingots and Alloys Limited v. Union of India and another, reported in (2004) 6 SCC 254, the Supreme Court held that keeping in view the expressions used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. The Supreme Court, however, held that the Court might refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens only where a notice has been issued within its jurisdiction. However, in this case, in the FIR the offence is alleged to have taken place, inter alia, in Chennai, within the jurisdiction of this Court, where the petitioner resides and carries on business. The petitioner has been impleaded as accused in the FIR with his address in Chennai.
  50. 50. In Lt. Col. Khajoor Singh v. Union of India and another, reported in AIR 1961 SC 532, the Supreme Court held of course, as held in Kusum Ingots and Alloys Limited, supra, even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
  51. 51. However, in a case like this where the offence is alleged to have taken place under the jurisdiction of different Courts, including in Chennai within the jurisdiction of this Court, where the petitioner is residing in Chennai within the jurisdiction of this Court and the Look Out Circular will be implemented and enforced in Chennai within the jurisdiction of this Court, it would not be appropriate for this Court to refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
  52. 52. The learned Additional Solicitor General also submitted that Section 41 of the Code of Criminal Procedure confers power on the police to arrest without warrant. The second respondent, who could have arrested the petitioner and other Directors of the Companies under Section 41 of the Code of Criminal Procedure, had registered the FIR on 15.05.2017. The second respondent issued a notice under Section 41A directing them to appear before him, but none actually appeared. Mr.Karti P.Chidambaram appeared before the authority only after the Supreme Court directed him to appear.
  53. 53. Learned Additional Solicitor General further submitted that while issuing notice under Section 41A, the investigating authority has inherent power to take necessary steps to see that the accused in the case does not leave this jurisdiction and co-operate in the enquiry. It is a part of the duty of the second respondent to ensure that the accused appeared before him for investigation.
  54. 54. The learned Additional Solicitor General submitted that in order to ensure that an accused appeared before him for investigation, the Investigating Officer could seek the assistance of government authorities who were bound to render necessary assistance to prevent the escape of an accused whom a police officer is authorised to arrest. The power, according to the learned Additional Solicitor General is derived from Chapter IV-B and particularly, Section 37 of the Criminal Procedure Code.
  55. 55. The learned Additional Solicitor General argued that if the contention that the Investigating Officer had no power to prevent the escape of an accused were to be accepted, the very purpose of Section 41A and Section 37 of the Criminal Procedure Code would be defeated.
  56. 56. In support of his submission that Chapter IV B of the Criminal Procedure Code and in particular Section 37 read with Sections 41 and 41A should be given a wide interpretation, the learned Additional Solicitor General cited Badshah v. Urmila Badshah Godse and another, reported in (2014) 1 SCC 188, where the Supreme Court held:
    20. Thus, while interpreting a statute the court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydons Case which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction ut res magis valeat guam pereat, in such cases i.e. where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section 125 Cr.P.C., such a woman is to be treated as the legally wedded wife.
  57. 57. It has been argued that whether an LOC should be issued against any person or not is purely an executive decision to be taken by the authority having regard to the facts and circumstances of the case. Such executive decision is not subject to judicial review.
  58. 58. The learned Additional Solicitor General concluded his submissions with the argument that the principles enunciated in Maneka Gandhi, supra, would not apply to this case because in distinction to this case, there was no criminal case pending against Mrs.Maneka Gandhi. The passport authorities had, on their own, initiated action.
  59. The issuance of Look Out Circulars is governed by the Executive instructions as contained in the communication No.25022/13/78-F1, dated 05.9.1979 and the Official Memorandum No.25022/20/98-FIV, dated 27.12.2000 of the Government of India, Ministry of Home Affairs (Foreigners Division).
  60. 60. Look Out Circulars are issued by the Ministry of Home Affairs of the Government of India as well as certain other authorities such as Ministry of External Affairs; the Customs Department; the Income Tax Department; the Directorate of Revenue Intelligence; Central Bureau of Investigation; Interpol; Regional Passport Officers and Police authorities in various States.
  61. 61. In a Writ Petition (Civil) No.10180 of 2009 (Shri.Vikram Sharma v. Union of India and others), the Delhi High Court passed an order dated 27.7.2010 observing that a request for issuance of an Look Out Circular had to come from either the Central or the State Government and that too only in the prescribed form signed by the officers of certain rank. While Criminal Courts dealing with cases of criminal law enforcement could issue directions which might result in the issuance of Look Out Circular, there was no power vested either under the Code of Criminal Procedure or the Passports Act or under Circulars of the Ministry of Home Affairs vesting power on statutory bodies like the National Commission for Human Rights to issue Look Out Circular.
  62. 62. In a Writ Petition (Crl) No.1315 of 2008 being Sumer Singh Salkan v. Assistant Director and others, the High Court of Delhi passed a judgment and order dated 11.8.2010 formulating and answering certain questions relating to issuance of Look Out Circulars for the guidance of concerned agencies. In answer to the questions as to what were the categories of cases in which the Investigating agency could seek recourse to Look Out Circular, and under what circumstances, the High Court held that recourse to Look Out Circular can be taken by the Investigating agency in cognizable offences under Indian Penal Code or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial Court despite Non-Bailable warrant and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest.
  63. 63. Look Out Circulars are coercive measures to make a person surrender to the Investigating agency or the Court of law. In accordance with the order dated 26.7.2017 of the High Court of Delhi, the Ministry of Home Affairs issued Official Memorandum dated 27.10.2010 laying down the guidelines for issuance of Look Out Circulars. The said Circular provided:
    Recourse to Look Out Circular is to be taken in cognizable offences under IPC or other penal laws. The details in column IV in the enclosed proforma or regarding reason for opening LOC’s must invariably be provided without which the subject of an LOC will not be arrested/detained.
  64. 64. The mandate of the Office Memorandum dated 27.10.2010, that a request for issuance of an LOC would necessarily have to contain reasons for such request makes it clear that the condition precedent for issuance of an LOC is the existence of reasons, which should be disclosed in the request for issuance of an LOC.
  65. 65. Pursuant to the directions of this Court, the respondents have filed their counter affidavit. The counter affidavit does not disclose the reasons for making a request for issuance of an LOC. The impugned LOC is liable to be set aside on that ground alone.
  66. 66. Sections 41, 41-A and 41-B of the Code of Criminal Procedure, 1973 are set out hereinafter for convenience:
      • 41. When police may arrest without warrant.
      • (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person
      • (a) who commits, in the presence of a police officer, a cognizable offence;
        (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:
        (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
        (ii) the police officer is satisfied that such arrest is necessary
        (a) to prevent such person from committing any further offence; or
        (b) for proper investigation of the offence; or
        (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
        (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
        (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
        Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
      • (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;
      • (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
      • (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
      • (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
      • (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
      • (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
      • (h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
      • (i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
      • (2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.
    • 41A. Notice of appearance before police officer.
    • (1) The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
    • (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
    • (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
    • (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.
    • 41B. Procedure of arrest and duties of officer making arrest. Every police officer while making an arrest shall
    • (a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;
    • (b) prepare a memorandum of arrest which shall be
      • (i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
      • (ii) countersigned by the person arrested; and
    • (c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.
  67. 67. Section 41(2) clearly provides that subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned is to be arrested except under a warrant or order of a Magistrate.
  68. 68. Section 42 provides for arrest of a person who in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer to give his name and residence or gives a name or residence which such officer has reason to believe to be false. Even in such cases, when the true name and residence of such person have been ascertained, he is to be released on his executing a bond with or without sureties to appear before a Magistrate if so required.
  69. 69. The conditions precedent for arrest under Section 41 of the Code of Criminal Procedure without warrant as set forth in sub-sections (a) to (i) of Section 41(1) were wholly absent atleast as on the date of issuance of the Look Out Circular. In any case, there was no attempt to arrest the petitioner without warrant atleast as on 15.06.2017 when notice under Section 41-A was issued to the petitioner to appear before the Investigating officer on 29.6.2017. A notice under Section 41A of the Criminal Procedure Code is issued directing the accused to appear before the Investigating Officer, when arrest of a person is not required, as observed by the Supreme Court in Arnesh Kumar, supra.
  70. 70. The legality and/or validity of a Look Out Circular has to be adjudged having regard to the circumstances prevailing on the date on which the request for issuance of the Look Out Circular had been made.
  71. 71. As observed above, the FIR against the petitioner was lodged on 15.05.2017. Notice was issued on 15.6.2017 calling upon the petitioner to appear before the Station House Officer/Investigation Officer on 29.6.2017. On the very next day i.e., 16.6.2017, the impugned Look Out Circular was issued. As on the date of issuance of the Look Out Circular, there could have been no reason to suppose that the petitioner would not appear before the Station House Officer/Investigation Officer.
  72. 72. On behalf of the respondents, it has been contended that the petitioner did not appear on 29.6.2017 as directed, but only appeared pursuant to the directions of the Supreme Court. However, as argued by Mr.Subramanium, the very fact that after issuance of the first notice dated 16.06.2017, which was returnable on 29.06.2017, a further notice was issued on 04.07.2017 granting the petitioner time till 21.07.2017, shows that there was no immediate apprehension of his evading investigation, at least on 04.07.2017. There was, thus, no justification for issuance of the impugned LOC on 16.06.2017, the validity whereof has expired, in any case, after one year.
  73. 73. As observed above, the issuance of Look Out Circulars is governed by executive instructions as contained in the Office Memoranda Nos.25022/13/78-F1 dated 05.09.1979 and 25022/20/98-FIV dated 27.12.2000, as modified by Office Memorandum dated 27.10.2010. Such LOCs cannot be issued as a matter of course, but when reasons exist, where an accused deliberately evades arrest or does not appear in the trial Court. The argument of the learned Additional Solicitor General that a request for Look Out Circular could have been made in view of the inherent power of the investigating authority to secure attendance and cooperation of an accused is contrary to the aforesaid circulars and thus, not sustainable.
  74. 74. It is, in the view of this Court, too late in the day to contend that whether or not to issue an LOC, being a executive decision, the same is not subject to judicial review. It is now well settled that any decision, be it executive or quasi-judicial, is amenable to the power of judicial review of the writ Court under Article 226 of the Constitution of India, when such decision has adverse civil consequences. An LOC, which is a coercive measure to make a person surrender and consequentially interferes with his right of personal liberty and free movement, certainly has adverse civil consequences. This Court, therefore, holds that in exercise of power of judicial review under Article 226 of the Constitution, the writ Court can interfere with an LOC. The question is whether the writ Court should exercise its discretionary jurisdiction to interfere with the impugned LOC.
  75. 75. In view of the finding of this Court that the conditions precedent for issuance of the impugned LOC were absent, and the impugned LOC is liable to set aside on that ground, we need not go into the questions of whether an LOC could have been issued without statutory sanction, or whether the respondents concerned had jurisdiction to issue the impugned LOC. However, in our view, the Look Out Circular was issued in hot haste when the conditions precedent for issuance of such Circular did not exist. The impugned Look Out Circular is, thus, liable to be set aside.
  76. 76. For the reasons discussed above, the impugned LOC is set aside and quashed. It is made clear that the order of this Court setting aside the impugned LOC will not impact the criminal proceedings initiated pursuant to the FIR, referred to above, or any other proceedings initiated against the petitioner.

With the above observations, both the writ petitions are disposed of. No costs. Consequently, WMP.Nos.22241, 22242, 21645 and 21646 of 2017 are closed.

(I.B., CJ.) (A.Q.,J.)

Index : Yes
Internet : Yes
bbr/sra/sasi

To:
1.The Commissioner (Immigration),
Bureau of Immigration,
Ministry of Home Affairs,
Government of India,
East Block VIII, Leval V,
Sector 1, R.K.Puram,
New Delhi 110 066.

2.The Deputy Inspector General/Head of Branch (HOB),
Economic Offences Unit – IV, EO-II,
Central Bureau of Investigation Head Office,
4th Floor, Opp. Electronics Niketan,
CGO Complex, Lodhi Road,
New Delhi 110 003.

3.The Foreigner Regional Registration Officer (FRRO),
Bureau of Immigration,
Ministry of Home Affairs,
Government of India,
Sastri Bhavan Annex Building,
No.26, Haddows Road, Chennai 600 006.

4.The Assistant Foreigners Regional Registration Officer,
Bureau of Immigration,
Anna International Airport,
Meenambakkam Airport,
Chennai 600 027.

The Hon’ble Chief Justice
and
Abdul Quddhose, J.
(sasi)
W.P.Nos.21305 and 20798 of 2017 and WMP Nos.22241, 22242, 21645 and 21646 of 2017
23.7.2018

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.

Mutual #love & breakup is NOT #cheating. Angry words NOT #intimidation. #Malicious #baseless #ipc406, #ipc417, #ipc420, #ipc506(i) & #Sec4DPact case #quashed. #MadrasHC

An IPS officer is charged with cheating, criminal intimidation and dowry demands. The woman (whose name has been withheld) claims that the IPS officer had a love affair with her, promised to marry her and then changed his mind after he became an IPS. After filing this case, she happily goes and gets married to some one else as well !! She also claims that the IPS office threatened to spoil her career and so criminal intimidation is involved. The Hon HC goes thru a cantena of cases and tears down the fake case

madras hc

Finally the Hon HC decides
“…. /////It is a well established law that in order to constitute the offence of cheating, the deception pointed out in the definition of cheating should be at the inception itself. In other words, Dr.Varun Kumar ought to have had a love affair with no intention of marrying the defacto complainant and falsely make her belief that he intended to marry her. It is not the case of the defacto complainant nor is the statement of any of the witnesses that when Dr.Varun Kumar got introduced to defacto complainant, he had a motive of having a love affair without an intention of getting married to her. On the contrary, it is the case of the defacto complainant as well as the witnesses that Dr.Varun Kumar as well as his family members recognised and introduced her as his fiance to their relatives and friends. In the absence of any material to establish that Dr.Varun Kumar had no intention of getting married when both had commenced the love affair, it cannot be said that the alleged deception was at the inception itself and hence, the offence of cheating, as defined under Section 415 IPC, will not be made out. /////

///////In the present case, the prosecution had charged Dr.Varun Kumar for the offence under Section 506(i) IPC since he had allegedly informed the respondent that he intended to marry a girl of IPS cadre and that if she reveals their affair, he would spoil the reputation of the second respondent/defacto complainant and her family members. In order to attract the ingredients of Section 506 IPC, the intention of the accused must be to cause alarm to the victim and mere expression of the words without intention to cause alarm would not be sufficient. In order to constitute an offence under Section 506 IPC, it must be clearly established that the person charged, actually threatened or injured the person with an intention to cause alarm. In the instant case, the case of the prosecution is that when the defacto complainant had called Dr.Varun Kumar to speak about her marriage with him, he had allegedly retaliated by saying that he would spoil her reputation. Such an act can only be deemed to be an expression of words without any intention to cause alarm and as such, the offence under Section 506 will not be made out.//////

////Incidentally, there is contradiction in the version of the prosecution case, with regard to the charge for the offence of cheating. While charging the petitioners for the offences under Section 417, it is their case that there was a promise to marry and subsequent withdrawal of the promise. However, while charging the petitioner under the DP Act, the case of the prosecution is that the marriage came to be cancelled in view of demand of dowry and the defacto complainant’s non compliance of the demand. If the later version is accepted as such, the offence under Section 417 will also not be made out./////

////26.The present case in hand, is a classic example of a maliciously instituted criminal proceedings and hence this Court exercising its powers under Section 482 Cr.P.C., would be justified in quashing the same, thereby enabling the petitioners herein to refrain from undergoing the ordeal of a criminal trial instituted on baseless charges.////

**
IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on :11.12.2017

Dated : 26.06.2018
CORAM:

THE HONOURABLE MR. JUSTICE M.S.RAMESH

Crl.O.P.Nos. 14573 of 2017 &
Crl.O.P.Nos.17112 and 24197 of 2015
1.Dr.Varun Kumar .. Petitioner/A1 in Crl.OP.No.14573/2017

2.V.Kalpana .. Petitioner/A3 in Crl.OP.No.17112/2015

3.R.Veerasekaran .. Petitioner/A2 in Crl.OP.No.24197/2015
Vs.

1.State rep. by
The Inspector of Police (ADSP)
Central Crime Branch,
Egmore, Chennai-600008.

2.G.Priyadharshni ..Respondents in all Crl.O.Ps.

COMMON PRAYER : Criminal Original Petitions filed under Section 482 of Cr.P.C., praying to call for the records in C.C.No.2036 of 2015 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai and to quash the same.

For Petitioner : Mr.S.Arumuga Raja in Crl.OP. No. 14573 of 2017
Mr.B.Kumar, Sr. Counsel for Mr.A.Jenasenan in Crl.O.P.Nos.17112 & 24197/ 2015

For Respondent-1 :Mr.C.Iyyappa Raj, APP in all Crl.O.Ps

For Respondent-2 :Mr.R.Sankarasubbu for Mr.V.Sathish in all Crl.OPs

C O M M O N O R D E R

  1. 1. The petitioners herein have been arrayed as accused in C.C.No.2036 of 2015 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai at the instance of the second respondent’s complaint for offences under Sections 406, 417, 420, 506(i) IPC, Section 4 of Dowry Prohibition Act, 1961 (herein after referred to as DP Act), Section 4 of Tamil Nadu Prohibition of of Harassment of Women Act, 1998 (herein after referred to as TNPHW Act) and Section 66 of Information Technology Act, 2000 (herein after referred to as IT Act). The petitioner in Crl.O.P.No.14573 of 2017 is the son of the petitioners in Crl.O.P.Nos.24197 & 17112 of 2015. https://twitter.com/ATMwithDick/status/1022310662452785153
  2. 2.The case of the prosecution in short is that the defacto complainant and the petitioner in Crl.O.P.No.14573 of 2017 had known each other since 2007, which developed into a promissory relationship to get married. Both of them, had enrolled themselves in an IAS Training Academy at New Delhi and since the defacto complainant did not clear her preliminary examination, she had stayed back in New Delhi for a period of one year for helping Dr.Varun Kumar to prepare for his main examination. The relationship between the defacto complainant and Dr.Varun Kumar was accepted by both their respective family members and it was mutually agreed that the parties will get married in the year 2012. During their stay at New Delhi, the defacto complainant had pledged her jewelleries worth more than Rs.1 lakh to help Dr.Varun Kumar financially for the preparation of his interview. After the interview in the month of April 2011, the attitude of all the petitioners herein changed and they had demanded a sum of Rs.50 lakhs in cash, 2 kgs of gold and a BMW Car for Dr.Varun Kumar on the ground that he was an IPS officer. When the defacto complainant had expressed her inability to meet the dowry demand, their relationship broke and became strained. Dr.Varun Kumar had then deleted the mails sent by his father to the defacto complainant in order to erase all the evidences of their relationships. In view of the dowry demand by all the petitioners herein and the failure to marry her contrary to the promise as well as the cruelty meted out to her, the petitioners herein have been charged for the offences under Sections 406, 417, 420, 506(i) IPC, Section 4 of Dowry Prohibition Act, 1961, Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 1998 and Section 66 of Information Technology Act, 2000, which proceedings is under challenge in the present petitions.
  3. 3.Heard Mr.B.Kumar, learned Senior counsel for the petitioners (in Crl.O.P.Nos.17112 & 24197 of 2015), Mr.G.Arumugaraja (in Crl.O.P.No.14573 of 2017) and Mr.C.Iyyapparaj, learned Additional Public Prosecutor for the first respondent as well as Mr.R.Sankarasubbu, learned counsel for the second respondent in all the petitions.
  4. 4.Mr.B.Kumar, learned Senior counsel appearing for the petitioners submitted that the statements of the witnesses and the documents filed upon by the prosecution does not reveal the commission of any offence and as such, the framing of charges against the petitioners itself is liable to be quashed. By relying upon the statement of the witnesses and the documents, the learned Senior counsel submitted that none of the offences for which the petitioners have been charged is made out. In support of his contention, the learned Senior counsel relied on the relevant provisions of the offences for which they have been charged and various judgments of the Hon’ble Apex Court as well as the High Courts and submitted that there is no legally sustainable charges made out as against the petitioners. He further submitted that the petitioner/Dr.Varun Kumar herein is a top ranking IPS officer and that the criminal complaint has been made as a vendetta for the purpose of damaging his reputation. He would also submit that the petitioner Dr.Varun Kumar as well as the defacto complainant had, during pendency of the investigation/framing of charges, had got married to third persons of their own choices and that it would not be appropriate to proceed with the case.
  5. 5.Mr.G.Arumugaraja, learned counsel for the petitioner in Crl.O.P.No.14573 of 2017 had adopted the averments made by the learned Senior counsel for the petitioners in Crl.O.P.Nos.17112 & 24197 of 2015.
  6. 6.Mr.Sankarasubbu, learned counsel appearing for the second respondent/defacto complainant submitted that all the petitioners herein had willfully deceived and cheated the defacto complainant with a promise to have her married to Dr.Varun Kumar. In view of such a promise, the defacto complainant had also sacrificed her entire career by assisting Dr.Varun Kumar to write his civil services examination and she was also widely introduced to family friends and relatives of both the parties as the fiancee of Dr.Varun Kumar, but had later dropped the marriage proposal. The learned counsel also submitted that the petitioners herein had demanded dowry to the tune of Rs.50 lakhs, 2 kgs of gold and one BMW car as a pre-condition for the marriage. In view of the dowry demand as well as for having cheated the defacto complainant, this Court should not entertain the request of the petitioners herein seeking for quashing the charges. The learned counsel also submitted that the subsequent events of the defacto complainant married to some other person will have no bearing in the case and that the trial Court should take its own course for coming to a fair and free conclusion.
  7. 7.The learned Additional Public Prosecutor appearing for the first respondent submitted that the charges have been duly framed based on the statements of various witnesses recorded under Section 161(3) of Cr.P.C., as well as certain other material documents. Since the offences have been clearly made out, the proper recourse would be to permit the trial Court to get along with the case and if at all the petitioners are aggrieved, it is always open to them to establish their innocence during the course of trial.
  8. 8.I have given careful considerations to the submissions made by the respective counsels.
  9. 9.It is not in dispute that the defacto complainant and Dr.Varun Kumar had a love affair even prior to his clearing of his civil services examination. It is neither the case of the defacto complainant nor the petitioners that Dr.Varun Kumar and the defacto complainant were living together or had involved in physical relationship. The grievance of the defacto complainant is that there was a promise from the petitioners for her marriage with Dr.Varun Kumar, which promise was retracted and a demand of dowry was made as a pre- condition for her marriage with him. Her complaint came to be investigated and the respondents have been charge sheeted for offences under Sections 417 , 204, 506(i) IPC, Section 4 of DP Act r/w.34 of IPC, Section 4 of TNPHW Act and Section 66 of IT Act. By relying upon the respective definitions of the offences for which the petitioners have been charged, the learned Senior counsel for the petitioners submitted that the ingredients for constituting these offences are conspicuously absent and as such, the offences are not made out. For the sake of convenience, the relevant provisions of all the offences for which the petitioners have been charged are extracted herein:
    • 417. Punishment for cheating Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
    • 204. Destruction of document to prevent its production as evidence Whoever secretes or destroys any document which he may be lawfully compelled to produce as evidence in a Court of Justice, or in any proceeding lawfully held before a public servant, as such, or obligates or renders illegible the whole or any part of such document with the intention of prevention the same from being produced or used as evidence before such Court or public servant as aforesaid, or after he shall have been lawfully summoned or required to produce the same for that purpose, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
    • 506. Punishment for criminal intimidation Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. https://twitter.com/ATMwithDick/status/1022310662452785153
    • Section 4 of DP Act:[4. Penalty for demanding dowry.If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:
      • Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.] Section 4 of TNPHW Act, 1998 reads as follows: penalty for (harassment or woman)-whoever commits or participates in or abets (harassment of woman) in or within the precincts of any educational institution, temple or other place of worship, bus stop, road, railway station, cinema theatre, part, beach, place of festival, public service vehicle or vessel or any other place shall be punished with imprisonment for a term which may extend to three years and with fine which shall not be less than thousand rupees. Section 4 enjoins penalty for harassment of woman and the words ‘any place’ by a conjoint reading of Sections 3 and 4 of the Act point out that wherever the occurrence takes place it refers to the same and therefore, it applies to the private dwelling house/place.
    • Section 66 of IT Act: If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.
  10. 10.Insofar as the offence of cheating is concerned, the case of the prosecution, as evidenced in the charge sheet, is that Dr.Varun Kumar had a love affair with the defacto complainant with a promise to marry her and all the petitioners had assured the defacto complainant about her marriage with Dr.Varun Kumar and subsequently cheated her by not getting him married to her. The core issue that needs to be addressed in order to evaluate as to whether the offence of cheating has been made out or not is as to whether the deception was at the inception itself and consequently whether promising to marry and breaking such a promise would amount to an act of cheating. Section 415 of IPC defines cheating as follows:
    • 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”.
  11. 11.It is a well established law that in order to constitute the offence of cheating, the deception pointed out in the definition of cheating should be at the inception itself. In other words, Dr.Varun Kumar ought to have had a love affair with no intention of marrying the defacto complainant and falsely make her belief that he intended to marry her. It is not the case of the defacto complainant nor is the statement of any of the witnesses that when Dr.Varun Kumar got introduced to defacto complainant, he had a motive of having a love affair without an intention of getting married to her. On the contrary, it is the case of the defacto complainant as well as the witnesses that Dr.Varun Kumar as well as his family members recognised and introduced her as his fiance to their relatives and friends. In the absence of any material to establish that Dr.Varun Kumar had no intention of getting married when both had commenced the love affair, it cannot be said that the alleged deception was at the inception itself and hence, the offence of cheating, as defined under Section 415 IPC, will not be made out.
  12. 12.Yet another feature to constitute the offence of cheating is that the intention to deceive must be done fraudulently or dishonestly. Even as per the version of the defacto complainant as well as the statements of the witnesses, the defacto complainant and Dr.Varun Kumar were mutually in love with each other and that during that time, Dr.Varun Kumar had no intention of breaking the alleged promise to marry her. While that being the case, the question of dishonest or fraudulent inducement does not arise. In other words, such alleged deception was also not intentional as per the version of all the witnesses.
  13. 13.The Hon’ble Apex Court in a judgment in G.V.Rao Vs. L.H.V. Prasad and others reported in 2000 (3) SCC 693 had an occasion to render its findings on this aspect, which are extracted below:
    • 4.Cheating is defined in Section 415 of the Indian Penal Code which provides 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.”
    • 5.The High Court quashed the proceedings principally on the ground that Chapter XVII of the Indian Penal Code deals with the offences against properties and, therefore, Section 415 must also necessarily relate to the property which, in the instant case, is not involved and, consequently, the FIR was liable to be quashed. The broad proposition on which the High Court proceeded is not correct. While the first part of the defition relates to property, the second part need not necessarily relate to property. The second part is reproduced below:-
    • “415………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”.”
    • 6.This part speaks of intentional deception which must be intended not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or property. The intentional deception presupposes the existence of a dominant motive of the person making the inducement. Such inducement should have led the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not deceived. The further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property.
    • 7.As mentioned above, Section 415 has two parts. While in the first part, the person must “dishonestly” or “fraudulently” induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney vs. State of Bombay, AIR 1956 SC 575 = 1956 Crl.L.J. 1611 = 1956 SCR 483, a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, “mens rea” on the part of that person, must be established. It was also observed in Mahadeo Prasad vs. State of West Bengal, AIR 1954 SC 724 = 1954 Cr.L.J. 1806, that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered.
    • 8.Thus, so far as second part of Section 415 is concerned, “property”, at no stage, is involved. Here it is the doing of an act or omission to do an act by the complainant, as a result of intentional inducement by the accused, which is material. Such inducement should result in the doing of an act or omission to do an act as a result of which the person concerned should have suffered or was likely to suffer damage or harm in body, mind, reputation or property. In an old decision of the Allahabad High Court in Empress v. Sheoram and another, (1882) 2 AWN 237, it was held by Mahmood, J.:-
      • “That to palm off a young woman as belonging to a caste different to the one to which she really belongs, with the object of obtaining money, amounts to the offence of cheating by personation as defined in s.416 of the Indian Penal Code, which must be read in the light of the preceding, s.415.”
    • 9.In an another old decision in Queen-Empress v. Ramka Kom Sadhu, ILR (1887) 2 Bombay 59, it was held that a prostitute may be charged for cheating under Section 417 if the intercourse was induced by any misrepresentation on her part that she did not suffer from syphilis.
    • 10.In Queen vs. Dabee Singh and others, (1867) Weekly Reporter (Crl.) 55, the Calcutta High Court convicted a person under Section 417 who had brought two girls and palmed them off as women of a much higher caste than they really were and married to two Rajputs after receiving usual bonus. It was further held that the two Rajputs who married the two girls on the faith that they were marrying women of their own caste and status, were fraudulently and dishonestly induced by deception to do a thing (that is to say, to marry women of a caste wholly prohibited to them) which but for the deception practised upon them by the accused, they would have omitted to do. In another case which was almost similar to the one mentioned above, namely, Queen vs. Puddomonie Boistobee, (1866) 5 Weekly Reporter (Crl.) 98, a person was induced to part with his money and to contract marriage under the false impression that the girl he was marrying was a Brahminee. The person who induced the complainant into marrying that girl was held liable for punishment under Section 417 IPC.
  14. 14.Insofar as the case of the prosecution that, the promise to marry and subsequent withdrawal of the promise would amount to cheating is concerned, a Division Bench of the Calcutta High Court in Cri. Appeal No.351 of 1998 [Abhoy Pradhan V. State of West Bengal] reported in 1999 Cri. L.J.3534 had held that the same would not amount to cheating since there was neither deception nor a creation of a misconceptional facts in the minds of the respondent. The relevant portion of the order reads as follows:
    • 15.Now, learned Additional P.P. further drew our attention to Section 90, I.P.C. According to him, the appellant made a false promise to PW 1 that he would marry her and by making such false promise he created a misconception in her mind and as the complainant was under a misconception of fact and also that appellant knew or had reasons to believe at that time that complainant gave such consent in consequence of such misconception it must be held that the consent, if any, given by the complainant, was not at all a consent contemplated under various provisions of the Penal Code. Learned Additional P.P. further contended that such false representation/assurance/promise with knowledge hat the same was false, amounted to a deception within the meaning of Section 415, I.P.C. There-after, learned Additional P.P. further contended hat the aforesaid acts amounted to offences of rape and cheating and the allegations made by the complainant in her complaint as well as in her deposition fulfil all the essential ingredients of the said offences.
    • 16.We find from the complaint as well as from the evidence on record that the appellant sincerely wanted to marry the complainant. When he proposed to marry the complainant, his parents assaulted him and drove him out from their house. From these facts, we are unable to hold that appellant made any false promise/representation/assurance to the complainant with knowledge that such promise /representation/assurance was false in any manner. On the contrary we find that it is the specific case of the complainant as stated by her in her complaint as well as in her deposition that the appellant was all through serious and sincere to marry the complainant. This subsequent failure to marry the complainant does not prove that when he made such promise/ representation/assurance, same were made with knowledge that such promise /assurance/representation were false. Otherwise, the very distinction between ordinary breach of promise/contract and the offence of cheating would disappear. We are, therefore, of the firm opinion that the facts attributed to the appellant do not amount to any attempt to create any false conception of facts in the mind of the complainant or that the appellant at that time had any intention to deceive the complainant. In view of the aforesaid clear admissions made by the complainant in most unambiguous terms in her complaint as well as in her deposition, we are constrained to hold that appellant never practised any deception upon the complainant nor did he make any attempt to create some false conception of facts in a mind of the complainant. This being so, we have absolutely no hesitation in our mind to hold that the appellant neither committed the offence of rape nor any offence of cheating as defined in Sections 375 and 420, I.P.C. Respectively. From subsequent failure of the appellant to marry the complainant we cannot jump to a conclusion that the deception preceded the actual transaction i.e. the alleged intercourse. For the same reason, we cannot jump to the conclusion that the complainant gave her consent under a misconception of fact or that the appellant did such act with knowledge or at least had reasons to believe that the consent was given in consequence of such misconception. Therefore, even if the allegations made by the complainant in her complaint and deposition are found to be true, yet they do not make out any offence of rape or cheating and hence, verdict of guilt returned by the trial Court cannot be sustained.
  15. 15.Following the aforesaid judgment of the Hon’ble Division Bench, a learned Judge of this Court also had taken a similar view in Crl.O.P.No.1273 of 2011 [K.U.Prabhu Raj V. State rep. by the Inspector of Police, AWPS, Tambaram and another reported in 2012 (3) MWN (Cr.) 14], which reads as hereunder:-
    • 16.A cursory perusal of the above provision would make it clear that there are atleast three essential ingredients constituting an offence of cheating which should be made out from the materials available on record. They are as follows:-
    • (1)Deception of any person;
    • (2) Fraudulently or dishonestly inducing that person
    • (i)to deliver any property to any person or;
    • (ii) to consent that any person shall retain any property, or and (3) Intentionally inducing that person 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.
    • 17.The learned counsel for the second respondent would further submit that the offence involved in this case falls within the ambit of the third limb of Section 415 I.P.C as enumerated above. According to the learned counsel, but for the promise made by the petitioner, the daughter of the second respondent would have married someone-else and settled down in her life. Thus, according to him, the petitioner has committed a clear offence of cheating. In my considered opinion, it is not so. As has been held by the Division Bench of the Calcutta High Court in Abhoy Pradhan v. State of W.B case (cited supra), mere promise to marry and later on withdrawing the said promise will not amount to an offence of cheating at all. On such false promise to marry, the person to whom such promise was made should have done or omitted to do something that he would not done or omitted to do but for the deception. In this case, absolutely, there are no materials available on record to show that because of the promise made by the petitioner, the daughter of the second respondent has done anything or omitted to do something which has the tendency to cause damage or harm to the body or mind or reputation or property of the daughter of the second respondent. In the absence of the same, the entire allegations found in the records, in my considered opinion, would not make out an offence under Section 417 or 420 I.P.C., at all.
    • 18.In G.V.Rao v. L.H.V Prasad and others case, (cited supra), the Hon’ble Supreme Court has held that there should have been inducement, either dishonestly or fraudulently, and because of such inducement, the person induced should have done or omitted to do something which she would not have otherwise done or omitted to do. As I have already stated, in this case, absolutely there is no such material on record to satisfy the above requirement.
  16. 16.In G.V.Rao v. L.H.V Prasad and others case, (cited supra), the Hon’ble Supreme Court has held that there should have been inducement, either dishonestly or fraudulently and because of such inducement, the person induced should have done or omitted to do something which he would not have otherwise done or omitted to do. As I have already stated, there is absolutely no such material on record or relied by the prosecution to satisfy the above requirement. In view of the aforesaid observations, I am of the view that the offence of cheating as defined under Section 417 IPC has not been made out against these petitioners.
  17. 17.Incidentally, there is contradiction in the version of the prosecution case, with regard to the charge for the offence of cheating. While charging the petitioners for the offences under Section 417, it is their case that there was a promise to marry and subsequent withdrawal of the promise. However, while charging the petitioner under the DP Act, the case of the prosecution is that the marriage came to be cancelled in view of demand of dowry and the defacto complainant’s non compliance of the demand. If the later version is accepted as such, the offence under Section 417 will also not be made out.
  18. 18.Insofar as the Section 204 IPC which is the next section in which Dr.Varun Kumar has been charged is concerned, on a plain reading of the section, it is seen that the offence pertains to destruction of electronic evidence for the purpose of preventing its production as an evidence. The case of the prosecution is that when Dr.Varun Kumar had produced the mobile phone, the IMEI numbers of the mobile phones in the call data record and IMEI of the phones submitted by him did not tally. It is not the case of the prosecution that Dr.Varun Kumar had destroyed the electronic evidence which could be produced in the Court of law, which is an essential ingredient to constitute this offence. In the absence of this ingredient, it can only be concluded that the offence under Section 204 IPC is not made out. Consequently, it can only be held that Dr.Varun Kumar has been baselessly charged for the offence under Section 204 IPC. https://twitter.com/ATMwithDick/status/1022310662452785153
  19. 19.With regard to the offence under Section 506(i) IPC is concerned, in order to constitute a criminal intimidation, threat by the accused should be made to cause alarm to any other person or make a person to do an act which he is not legally bound to do and vice versa. Section 503 IPC defines criminal intimidation as follows:
    • 503. Criminal intimidation Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
  20. 20.In the present case, the prosecution had charged Dr.Varun Kumar for the offence under Section 506(i) IPC since he had allegedly informed the respondent that he intended to marry a girl of IPS cadre and that if she reveals their affair, he would spoil the reputation of the second respondent/defacto complainant and her family members. In order to attract the ingredients of Section 506 IPC, the intention of the accused must be to cause alarm to the victim and mere expression of the words without intention to cause alarm would not be sufficient. In order to constitute an offence under Section 506 IPC, it must be clearly established that the person charged, actually threatened or injured the person with an intention to cause alarm. In the instant case, the case of the prosecution is that when the defacto complainant had called Dr.Varun Kumar to speak about her marriage with him, he had allegedly retaliated by saying that he would spoil her reputation. Such an act can only be deemed to be an expression of words without any intention to cause alarm and as such, the offence under Section 506 will not be made out.
  21. 21.So far as the offence under Section 4 of DP Act r/w.34 of IPC is concerned, based on the complaint of the defacto complainant, the District Social Welfare Officer (Dowry Prohibition Officer) was called upon to submit a report by conducting an enquiry. Pursuant to the same, the District Social Welfare Officer had conducted a proper enquiry by summoning the petitioners, the defacto complainant as well as other witnesses. Enquiry was conducted on various dates between 24.01.2012 to 21.03.2012. After due consideration of the evidences and proofs, the District Social Welfare Officer, by an order dated 23.04.2012 held that there was no proof recording the demand of dowry and that there would be other reasons for the break in love between Dr.Varun Kumar and the second respondent herein. Though the Investigation Officer had referred to the report of the District Social Welfare Officer, the same was not filed along with the final report. As a matter of fact, when the FIR came to be registered, the provisions of the DP Act was not invoked in view of the negative report of the District Social Welfare Officer. Under Section 8(B)(2)(c) of the DP Act, 1961 and Rules 4 & 5 of the DP Act, it is mandatory for the Dowry Prohibition Officer to collect evidence for the persons committing the offence under the Act. This statutory requirement was not complied with by the prosecution at the time of filing of final report. As such, the statement of the learned Senior counsel appearing for the petitioners that the prosecution has wilfully suppressed the report of the Dowry Prohibition Officer, gains prominence and hence it can only be concluded that had the prosecution taken the report of the Dowry Prohibition Officer into account, the inclusion of the offence under DP Act would have been dropped.
  22. 22.That apart, the statement of the witnesses with regard to the demand of dowry are vague and lacks details with regard to the place and time of the demand. While dealing with such vague allegations in a charge sheet, the Hon’ble High Court in a judgment in Swapnil and others V. State of Madhya Pradesh reported in 2014 (13) SCC 567 held as follows:
    • 10.The first appellant and second respondent had in fact solemnized their marriage at Arya Samaj Mandir on 16.06.2007 privately, as they were stated to be in love with each other for sometime. Thereafter only, in the presence of the family members, marriage was solemnized on 24.06.2009. It has to be seen that admittedly the second respondent has been living separately since April, 2011. Thereafter, she had lodged a complaint on 07.09.2011 before the very same police station. The same was duly enquired into and it was closed stating that the dispute is actually between the families which are to be otherwise settled in legal proceedings. If there are such differences between families which are to be settled in legal proceedings, how such differences would constitute and give rise to a successful prosecution under Sections 498A or 506 IPC or under Section 4 of the Dowry Prohibition Act, 1961, is the crucial question.
    • 11. The second respondent has been living separately since April, 2011and hence, there is no question of any beating by the appellants as alleged by her. The relationship having got strained ever since April, 2011, even application for restitution of conjugal rights having been withdrawn on 16.04.2012 as the second respondent was not interested to live together, it is difficult to believe that there is still a demand for dowry on 30.04.2012 coupled with criminal intimidation. The allegations are vague and bereft of the details as to the place and the time of the incident. We had called for the records and have gone through the same. The materials before the learned Judicial Magistrate First Class, Indore are not sufficient to form an opinion that there is ground for presuming that the accused appellants have committed the offence under the charged Sections. The Additional Sessions Court and the High Court missed these crucial points while considering the petition filed by the appellants under Section 397 and Section 482 of the Cr.PC respectively. The veiled object behind the lame prosecution is apparently to harass the appellants. We are, hence, of the view that the impugned prosecution is wholly unfounded.
    • 12.Therefore, to secure the ends of justice and for preventing abuse of the process of the criminal court, the charges framed by the Judicial Magistrate First Class, Indore in Criminal Case No. 10245 of 2012 against the accused appellants are quashed.
  23. 23.The petitioners have also been charged for an offence under Section 4 of TNPHW Act. In order to constitute an offence under Section 4 of the TNPHW Act, the occurrence should be committed in a public place or institution referred to, in the section. In the complaint of the respondent, there is no such mention about harassment in a public place or private domain of Dr.Varun Kumar and none of the witnesses have spoken so. Even as per the definition of harassment under Section 2(a) of the said Act, there is no evidence in any of the statement of the witnesses to the effect that the petitioners had involved themselves in any indecent conduct or act against the respondents. A learned Judge of this Court had an occasion to deal on this issue in a judgment in S.Selva Kumar V. State through the Inspector of Police, AWPS, Keelakarai, Ramanathapuram District and another reported in 2015 (2) MWN Cr. 195 wherein, he had observed as follows:
    • 10. Coming to Section 4 of Tamil Nadu Prohibition of Harassment of Women (amended) Enforcement Act, 2002, this Court is of the view that there is no sufficient material to charge the petitioner under Section 4 of Tamil Nadu Prohibition of Harassment of Women (amended) Enforcement Act, 2002. Thus, in the absence of any attracting material, the said offence is also made out.
    • 11. Considering the scope of 506(i) of the Indian Penal Code in Srinivasan Vs. State by Sub Inspector of Police reported in 2009 (4) MLJ (Crl) 1118, in paragraph No.11, this Court has held in the following manner:-
    • 11.In order to attract the ingredients of Section 506 of IPC, the intention of the accused must be to cause alarm to the victim. Mere expression of words without any intention to cause alarm would not suffice. To constitute an offence under Section 506 of IPC it must be shown that the person charged actually threatened another with injury to his person, reputation or property with an intention to cause alarm.
    • 12. In Rajan Vs. State, rep. By Inspector of police reported in 2008 (2) MWN (Cr.) 258, after taking note of the decision rendered by the High Court of Punjab and Haryana, this Court has held in the following manner:-
    • 10. In a similar case, the Punjab and Haryana High Court quashed the proceedings in respect of the offence under Section 506(ii) IPC in a case in Usha Bala Vs. State of Punjab (P&H), 2002 (2) C.C.Cases 320 (P & H), that, Empty threats does not prima facie mean that the case under Section 506, IPC is made out against the petitioner. Hence, in face no case is made out against the petitioner.
    • Consequently, FIR No.313, dated 15.07.1999 under Section 406/498-A, IPC of police station, Sadar, Patiala is quashed qua the petitioner only.
    • 11.It is seen even in the instant case, except a vague and bald allegation of criminal intimidation, the defacto complainant has not stated that there was any threat to his life or sought for any police protection. Therefore, this Court is of the considered view that even the offence under Section 506(i), I.P.C is not maintainable. In view of the same, it can only be held that inclusion of the offence under Section 4 of TNPHW Act is misconceived.
  24. 24.The last offence for which the petitioners have been charged is one under Section 66 of the Information Technology Act, 2008. In order to constitute an offence under Section 66 of the IT Act, it is mandatory that such a prosecution could be only on a scientific or a cyber crime lab report based on the evidence of Cybercrime Lab of the Forensic Department. In the instant case, the Cybercrime Forensic Department has reported that no hacking tools were used in the laptops. Even the e-mail received from the service providers and the email host indicates that there was no breach of the complainant’s email. However, overlooking the report of the cyber crime lab of the Forensic Department, the petitioners have been charged for an offence under Section 66 of the Information Technology Act 2008 and as such, the inclusion of this provision in the charge sheet is also baseless.
  25. 25.In view of the foregoing observations, it is manifestly clear that none of the offences for which the petitioners have been charged with, has been clearly made out. As pointed out in the enquiry report of the District Social Welfare Officer, there could have been many other reasons for the break of the love affair between Dr.Varun Kumar and defacto complainant and by permitting the trial Court to proceed with the criminal trial against all the petitioners herein would only aggravate the ill feelings among the parties and would certainly cause serious prejudice to the petitioners. In the judgment in the case of State of Haryana vs. Bhajan Lal reported in 1992 SCC (Cri.) 426, the Hon’ble Apex Court had dealt with the scope for interference of the High Court exercising its powers under Section 482 Cr.P.C. wherein illustrative examples were laid down in cases where the High Courts would be justified in interfering and quashing the proceedings. One such illustration enabling the High Court to exercise its powers under Section 482 Cr.P.C., is where a criminal proceedings is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Following the aforesaid principle, the Hon’ble Supreme Court in a later judgment in Sunder Babu and others V. State of Tamil Nadu reported in 2009 (14) SCC 244 held as follows:
    • 7.Though the scope for interference while exercising jurisdiction under Sec.482 Cr.P.C. is limited, but it can be made in cases as spelt out in the case of Bhajan Lal. The illustrative examples laid down therein are as follows:
    • 1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
    • 2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Sec.156(1) of the Code except under an order of a Magistrate within the purview of Sec.155(2) of the Code.
    • 3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
    • 4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Sec. 155 (2) of the Code.
    • 5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
    • 6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
    • 7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
    • Even a cursory perusal of the complaint shows that the case at hand falls within the category (7) of the illustrative parameters highlighted in Bhajan Lal’s case (supra).
    • 8.The parameters for exercise of power under Sec.482 have been laid down by this Court in several cases.
    • 19.The Section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle “quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest” (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.
    • 20.As noted above, the powers possessed by the High Court under Sec.482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.
  26. 26.The present case in hand, is a classic example of a maliciously instituted criminal proceedings and hence this Court exercising its powers under Section 482 Cr.P.C., would be justified in quashing the same, thereby enabling the petitioners herein to refrain from undergoing the ordeal of a criminal trial instituted on baseless charges. https://twitter.com/ATMwithDick/status/1022310662452785153
  27. 27.In the result, the Criminal Original Petitions stands allowed. Consequently, the proceedings in C.C.No.2036 of 2015 on the file of the learned XI Metropolitan Magistrate, Saidapet stands quashed.

26.06.2018 Speaking order

Index:Yes
Internet:Yes
Note:Issue order copy on 06.07.2018

DP

To

1.The XI Metropolitan Magistrate Court, Saidapet, Chennai.

2.The Inspector of Police (ADSP) Central Crime Branch, Egmore, Chennai-600008.

3.The Public Prosecutor, Madras High Court.
M.S.RAMESH.J,

DP

Pre-Delivery order made in Crl.O.P.Nos. 14573 of 2017 & Crl.O.P.Nos.17112 and 24197 of 2015 26.06.2018

Filing #False498a on husband is #Cruelty. #Divorce affirmed. #MadrasHC

/////a fase complaint was lodged against her husband, and the case came to be registered under Sec. 498A I.P.C., and criminal proceedings were initiated, and the husband was also arrested. It remains to be stated that the mental cruelty faced by the husband has to be assessed having regard to his status in his life, educational background and the environment, in which he lived. The husband could have suffered traumatic experience because of the police complaint and the consequent loss of reputation and prestige in the society. This Court is of the considered view that the facts and circumstances in the instant case would clearly speak of volume of the false complaint given by the appellant wife against her husband, which resulted in the criminal proceedings, which he had to face. It is true that he was arrested, and then, he was let on bail. No doubt, it is a clear case, wherein the reputation and prestige of the husband in the society has been spoiled. In such circumstances, lodging of the police complaint by the appellant wife has got to be necessarily termed as mental cruelty. In view of these reasons, it would be suffice to sustain the finding of the lower Court that there was sufficient ground of mental cruelty, which would necessitate for grant of divorce./////
******
Madras High Court
Author: M Chockalingam
Bench: N Balasubramanian, M Chockalingam

JUDGMENT M. Chockalingam, J.

1. This appeal has arisen from the order of the I Additional Family Court, Chennai, granting divorce in favour of the respondent husband under Sec. 13(1)(1a) of the Hindu Marriage Act.

2. The respondent husband sought a decree of divorce before the lower Court alleging that the marriage between himself and the appellant herein took place on 5.9.1991; that they have been living happily for a short while; that thereafter, she created problem and went over from the matrimonial house to her parents’ house; that she lodged a false complaint against him, on the basis of which a case was registered by the police for dowry harassment; that he was arrested and later, let on bail; that the criminal proceedings also went on, and thus, all along, he has been harassed by her; that because of that, he had mental cruelty, and hence, it was a fit case for granting the relief of divorce.

3. The O.P. was contested by the appellant wife stating that it is true that there was a marriage between the parties, but, she was driven away; that there was a child born; that he has not even cared to maintain her or her child; that the allegation that there was mental cruelty caused by the wife against the husband, is utterly false; that he having failed to maintain his wife and child, has come with this false case; that within a short time from the time of marriage, namely a week, there was a dowry harassment by the husband and his sister; that a complaint was lodged by her father in that regard; that pursuant to the same, a case came to be registered under Sec. 498A I.P.C., and criminal proceedings went on; that he was also found guilty in the said case by the trial Court; that the allegation now made by him is an invention; that in order to wriggle out of the marriage tie, he has filed this false case, and hence, the relief was to be denied. https://twitter.com/ATMwithDick/status/1021441313613459456

4. The trial Court recorded the evidence. On the appraisal of the entire evidence, the Court below has found that it was a fit case for divorce and accordingly, granted the relief, what is being challenged in this C.M.A.

5. The learned Counsel appearing for the appellant wife, would submit that in the criminal case, both the lower Courts have found that there was a dowry harassment; that though the judgments of the lower Courts were set aside by this Court, there was sufficient evidence let in to substantiate the dowry harassment, and apart from that, having harassed his wife by demanding dowry, he has come forward with the false case for divorce; that he has not even cared to maintain the wife and child; and that it is pertinent to note that the wife has also filed a O.P. for restitution of conjugal rights, which shows the intention of the appellant to live with him. Added further the learned Counsel that the husband has not produced any iota of evidence to show that there was any cruelty made against him; that the petition should have been dismissed by the lower Court, and hence, the order of the lower Court has got to be set aside.

6. After careful consideration of the submission made by the learned Counsel for the appellant and on scrutiny of the available materials, this Court is of the considered opinion that it is not a fit case warranting for admission or for notice to the respondent. https://twitter.com/ATMwithDick/status/1021441313613459456

7. Admittedly, the appellant married the respondent on 5.9.1991, and out of the said wedlock, there was a male born. It is also not in dispute that she lived with him only for a short time. The only contention put forth by the appellant’s side, is that she was driven away from her matrimonial house, and thus, there was a necessity to live with her parents. On the contrary, the respondent husband came with the case of divorce stating that there was mental cruelty, exerted by her by lodging a false complaint under Sec. 498A I.P.C.; that a case came to be registered, and he was also arrested in that regard; that the same would constitute a cruelty, and hence, divorce has to be given. It is an admitted position that the appellant herein lodged a complaint against her husband, and criminal proceedings were initiated; that the said complaint was taken on file by the learned Chief Metropolitan Magistrate, Chennai, in C.C.No.11007 of 1992, and the trial went on. It is pertinent to point out that after the initiation of the criminal proceedings, the respondent herein was arrested, and subsequently, he was let on bail. Though the case ended in conviction, he took it on appeal in C.A.No.91 of 1998, which was taken up by the Sessions Court, Madras, which also confirmed the conviction and sentence imposed on him. In such circumstances, the husband took it on revision before this Court in Crl.R.C.No.941 of 2000. This Court had an occasion to consider the rival submissions made and to scrutinise the materials. This Court allowed the revision case and acquitted the respondent husband. At this juncture, it has to be pointed out that on the complaint given by the appellant wife against her husband for dowry harassment, a case came to be registered by the police, and he was arrested and let on bail. He faced the trial before the Chief Metropolitan Magistrate’s Court, Chennai in a Calendar Case, and he was convicted and sentenced. That apart, the appeal in C.A.91/98 preferred by him, has also met the same fate at the hands of the Sessions Court. Finally, he was acquitted by this Court.

8. It would be more appropriate and advantageous to reproduce the order of this Court in Crl.R.C.941 of 2000 as follows: “The facts narrated above indicate that the allegations in the complaint to P.W.8 on 26.5.92 should only be considered as an after thought and that the said complaint was given by P.W.1 only to harass the petitioners to subjugate the first petitioner to her wish to stay at Madras. I am unable to accept the prosecution version that the petitioners, joining with the other accused, made a demand for dowry.” Thus, from the wordings found in the judgment of this Court in the revision, it would be clear that it was a false complaint.

9. The case of the appellant was that there was no cruelty exerted, cannot be accepted or countenanced for the simple reason that a fase complaint was lodged against her husband, and the case came to be registered under Sec. 498AI.P.C., and criminal proceedings were initiated, and the husband was also arrested. It remains to be stated that the mental cruelty faced by the husband has to be assessed having regard to his status in his life, educational background and the environment, in which he lived. The husband could have suffered traumatic experience because of the police complaint and the consequent loss of reputation and prestige in the society. This Court is of the considered view that the facts and circumstances in the instant case would clearly speak of volume of the false complaint given by the appellant wife against her husband, which resulted in the criminal proceedings, which he had to face. It is true that he was arrested, and then, he was let on bail. No doubt, it is a clear case, wherein the reputation and prestige of the husband in the society has been spoiled. In such circumstances, lodging of the police complaint by the appellant wife has got to be necessarily termed as mental cruelty. In view of these reasons, it would be suffice to sustain the finding of the lower Court that there was sufficient ground of mental cruelty, which would necessitate for grant of divorce.

10. The learned Counsel for the appellant would submit that the respondent husband has not even made any arrangement for the maintenance of the appellant wife and the minor child also. In such circumstances, while confirming the order of the lower Court, it is made clear that the observations made herein, will not in any way impede the appellant to take necessary proceedings in respect of maintenance for herself and for the child. https://twitter.com/ATMwithDick/status/1021441313613459456

11. With the above observation, this civil miscellaneous appeal is dismissed. No costs. Consequently, connected C.M.Ps. are also dismissed.