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

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

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

Gajalakshmi vs R. Saravanan on 15 April, 2004

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.

Courts can’t impose onerous & unreasonable conditions (huge cash deposit) before bail !! Madras HC

in this case the lower courts ordered deposit of Rs 15000 by village labour (daily wage earners) and the HON MADRAS HC after considering various HC and SC cases decided that such onerous conditions cannot be imposed. the cases quoted by the HC are very important and strike at the very root of lower courts imposing such onerous conditions

This case should help husbands who are seeking AB in 498a, 406 cases filed by wife

The cases referred to should also make good reading

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Before the Madurai Bench of Madras High Court

Date: 05-02-2015

Coram
The Hon?ble Mr.Justice S.Vaidyanathan

Crl.O.P.(MD)Nos.19196 of 2014
& Crl.O.P.(MD)Nos.19197 of 2014
&
M.P(MD)No.1 of 2014 in
Crl.OP.(MD)No.19196 of 2014

1.Amaldoss
2.Kannan
3.Meganathan
4.Saminathan
5.Santhana Raju            .. Petitioners in Crl.O.P.(MD)No.
19196 of 2014
1.Mathialagan
2.Tamilalagan
3.Karunanithi
4.Tamilarasan
5.Kalaiyarasan            .. Petitioners in Crl.O.P.(MD)No.
19197 of 2014

Versus

State,
Rep. by the Inspector of Police,
Patteeswaram Police Station,
Thanjavur District.                        .. Respondent

in both petitions Prayer These Criminal Original Petitions are filed under Section 482 of Cr.P.C., praying to set aside the second condition imposed by the learned Principal Sessions Judge, Thanjavur in his order, dated 14.10.2014 in Crl.M.P.No.3779 and 3827 of 2014.

!For Petitioners : Mr.M.Karunanithi ^For Respondents : Mr.P.Kandasamy Government Advocate (Crl. Side) for R1 Mr.B.Jameel Arasu for Intervenor :COMMON ORDER By order, dated 14.10.2014 in Crl.M.P.Nos.3779 and 3827 of 2014, while granting anticipatory bail to the petitioners herein, the learned Principal District and Sessions Judge, Thanjavur, apart from other conditions, imposed a condition, directing the petitioners to deposit a sum of Rs.15,000/- each before the learned Judicial Magistrate, Kumbakonam.

1. Aggrieved by the said condition, the petitioners have come forward with the present petitions, seeking to set aside the same.

2. The learned counsel for the appearing for petitioner would submit that the petitioners are agricultural coolies and they find difficulty even to eke out their day-to-day livelihood and hence, they are unable to comply with the condition imposed by the Court below in respect of making deposit of Rs.15,000/- before the learned Magistrate. He would contend that the learned Judge is not having jurisdiction to impose such condition and in fact there is no statutory provision nor any judicial pronouncement empowering the learned Judge to impose condition for depositing of money upon a person at the time of granting bail to him. Therefore, he contended that condition imposed by the Court below is onerous and it tantamounts to abuse of the process of the Court. In support of his contention, the learned counsel relied upon decisions of this Court, in ?Alluvdin versus Inspector of Police, Vandhavasi Police Station?(2001 Crl.L.J.2672); ?N.Sasikala versus Enforcement Officer, Enforcement Directorate, Madras?(1997 Crl.L.J.2120) and also of the Hon?ble Supreme Court reported in ?Ramathal & others versus Inspector of Police and another? (2009 Crl.L.J.2271).

3. On the other, the learned Government Advocate (Crl.side) would contend that in cases where there would be no possibility of granting anticipatory bail, if the Court comes to the conclusion on facts and satisfied that the person is entitled to anticipatory bail on certain terms and conditions, the same should be not ordinarily interfered with by this Court.

4. Chapter XXXIII of the Code of Criminal Procedure deals with the provisions as to ?Bail and Bonds?.

5. Section 437 of Cr.P.C. empowers the authority of law to impose any condition while granting bail to any person accused of, which reads as under: “437. When bail may be taken in case of non-bailable offence. 1[(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but- (i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence: Provided that the court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that the shall comply with such directions as may be given by the court.] (2) If it appears to such officer or court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, 2[the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail], or, at the discretion of such officer or court on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chatter XVI or Chapter XVII of the Indian Penal Code 45 of 1860 or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) the court may impose any condition which the court considers necessary- (a) In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) Otherwise in the interests of justice. (4) An officer or a court releasing any person on bail under sub-section (1), or sub- section (2), shall record in writing his or its 3[reasons or special reasons] for so doing. (5) Any court which has released a person on bail under sub-section (1), or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to Custody. (6) If, any case triable by a Magistrate, the trial of a person accused of any non bailable offence is not Concluded within a period of sixty days from the first date fixed for – taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. (7) If, at any time after the conclusion of the trial of a person accused of a non bailable offence and before Judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.”

6. Sub-Section 2 of Section 438 envisages conditions which can be imposed while granting anticipatory bail, which as under: “438 (2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including – (i) A condition that the person shall make himself available for interrogation by a police officer and when required; (ii) A condition that the person shall not, directly or indirectly,- make 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 any police officer, (iii) A condition that the person shall not leave India without the previous permission of the court; (iv) Such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted -under that section.”

7. Section 440, 441 and 445 of Cr.P.C. are also relevant and they are extracted as under: ?440. Amount of bond and reduction thereof. (1) The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. (2) The High Court or Court of Session may direct that the bail required by a police officer or Magistrate be reduced. ?441. Bond of accused and sureties. (1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. (2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. (3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge. (4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness. ?445. Deposit instead of recognizance. When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court of officer may if in lieu of executing such bond. ?

8. A careful consideration of the provisions of Sections 437(3) and 438(2) Criminal Procedure Code shows that conditions which can be imposed are primarily with a view to ensure availability of the accused during investigation, enquiry or trial and his non-interference with the course of justice. Other conditions which Court may think fit can also be imposed but idea should be to ensure his presence as and when required and his non- interference with the investigation, enquiry or trial.

9. Section 440 Cr.P.C. denotes that the amount of every bond executed shall be fixed with due regard to the circumstances of the case and shall not be excessive. Section 441 Cr.P.C. reads that before any person is released on bail or released on his own bond, a bond for such sum of money as the Court thinks sufficient shall be executed by such person. Section 441 does not speak about deposit of any cash security. Only in certain contingencies, where the accused is unable to secure sureties for his release, he is permitted to deposit a sum of money or Government promissory Note as the Court may fix in lieu of executing such bond, under Section 445, Cr.P.C.

10. Keeping in view of the above, the issue for consideration is whether the Court below can insist for deposit of money as a condition for grant of bail to the petitioners?

11. In fact, this issue is no longer res integra as in catena of decisions, various High Courts as well as the Hon?ble Supreme Court have consistently held that imposing condition of depositing money is excessively onerous and unreasonable and such condition may even amount to denial of bail itself.

12. In ?Sreenivasulu Reddy versus State of Tamil Nadu? reported in (2002) 10 SCC 653, wherein, this Court granted anticipatory bail to the accused on condition to deposit total Rs.50 crores apart from other conditions, which was also complied with by the accused, however aggrieved by imposition of such condition, the accused preferred appeal before the Hon?ble Apex Court. While dealing with the same, the Hon?ble Supreme Court had emphasized that while exercising jurisdiction under Section 438(2) of the Cr.PC, the Court ought only to impose such conditions/terms for enlarging an accused on bail as would ensure that the accused does not abscond. In para 6, it has been held as under: ?6. Having considered the rival submissions and the provisions of Section 438 Cr. PC, we are of the considered opinion that the Court while exercising jurisdiction under Section 438 Cr. PC, must bear in mind and be satisfied that the accused will not abscond or otherwise misuse liberty and this can be ascertained from several factors like conduct of the accused in the past, his assets in the country and so on. But, while granting such anticipatory bail, though the Court may impose such conditions as it thinks fit, but the object of putting conditions should be to avoid the possibility of the person hampering investigation. The discretion of the Court while putting conditions should be an exercise of judicial discretion. ?.

13. In ?Sandeep Jain v. State of Delhi? reported in (2000) 2 SCC 66, wherein, a direction of the Metropolitan Magistrate, to deposit Rs. 2 lacs apart from furnishing of a bond of Rs. 50,000 with two solvent sureties as a condition precedent for bail, was held to be unreasonable. In ?Sheikh Ayub v. State of M.P.? (2004) 13 SCC 457, wherein, the Supreme Court deleted the direction to deposit a sum of Rs. 2,50,000/-, which was the amount allegedly misappropriated by the accused.

14. In ?Shyam Singh v. State? reported in (2006) 9 SCC 169, wherein, the Hon?ble Supreme Court, has held in para 4 as under : ?4. We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs 2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law. Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police.?

15. In ?Keshab Narayan versus State of Bihar? reported in AIR 1985 SC 1666, the Hon?ble Supreme Court held that the condition to furnish cash security with sureties for the likesum appears to be excessively onerous and such conditions may virtually amount to denial of bail itself.

16. In ?Hussainara Khatoon (I) v. Home Secy., State of Bihar, reported in (1980) 2 SCC 81, the Hon?ble Supreme Court has held as under in para 3: ?3. Now, one reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pre-trial detention is our highly unsatisfactory bail system. It suffers from a property oriented approach which seems to proceed on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. The Code of Criminal Procedure, even after its re-enactment, continues to adopt the same antiquated approach as the earlier Code enacted towards the end of the last century and where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay up the amount of the bail in case the accused fails to appear to answer the charge. This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the courts is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented from contributing to the preparation of their defence, and (3) they lose their job, if they have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. It is here that the poor find our legal and judicial system oppressive and heavily weighted against them and a feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of inequality with the non-poor. The Legal Aid Committee appointed by the Government of Gujarat under the chairmanship of one of us, Mr Justice Bhagwati, emphasised this glaring inequality in the following words: ?The bail system, as we see it administered in the criminal courts today, is extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non-appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. The experience of enlightened Bail Projects in the United States such as Manhattan Bail Project and D.C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. Moreover, the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situate would be able to secure their freedom because they can afford to furnish bail. This discrimination arises even if the amount of the bail is fixed by the Magistrate is not high, for a large majority of those who are brought before the courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount.?

17. In ?Mahesh Chandra versus State of U.P.? reported in (2006) 6 SCC 196, wherein, while remitting the matter for fresh consideration, the Hon?ble Supreme Court set aside the order of the High Court of U.P., in and by which, as a condition for grant of anticipatory bail, the High Court has recorded the undertaking of the petitioners to pay to the victim daughter-in-law a sum of Rs. 2000 per month and failure to do so would result in vacation of the order granting bail. The Hon?ble Supreme Court observed that the parties cannot be made liable to deposit Rs.2000 per month for the maintenance for the victim and while deciding a bail application, it is not the jurisdiction of the High Court to decide civil disputes as between the parties.

18. Therefore, the practice of imposing condition for depositing of money for granting the bail has been deprecated by the High Courts and the Hon?ble Supreme Court. Of course, while granting the bail, the Court of law is entitled to put certain conditions at its discretion, however, it should not be ignored that such conditions must be reasonable and judicious and should not be arbitrary. In fact, no provision in Code of Criminal Procedure contemplates cash deposit as a condition precedent for grant of bail, but may permit the person to deposit a sum of money in lieu of executing a bond and giving surety of one or two persons. It is needless to state that granting or denying the bail depending upon the circumstances of each case, is within the exclusive discretion of the Court of law or authority, however, such discretion should not be exercised arbitrarily. Once the court comes to the conclusion on the facts and circumstances of the case that a person is entitled to the benefit of bail, then no condition other than those enumerated in Section 437(3) or 438(2) can be imposed. Imposition of such unreasonable condition is not only beyond the purview of the provisions of Code of Criminal Procedure but also beyond the powers of the court. Discretion does not mean that it has no arena or boundary. No Court having howsoever absolute power can traverse beyond the arena carved out for it. Even absolute discretion does not admit element of arbitrariness or whimsicality or capriciousness.

19. Having regard to the above, this Court is of the view that the condition imposed by the learned Principal Sessions Judge, Thanjavur in his order, dated 14.10.2014 in Crl.M.P.No.3779 and 3827 of 2014, while granting anticipatory bail to the petitioners, to deposit a sum of Rs.15,000/-, is onerous and unreasonable and hence, it is set aside.

Accordingly, these Criminal Original Petitions are allowed. Consequently, the connected Miscellaneous petition is closed.

Suk                            05-02-2015
Index: Yes/No
Internet:Yes/No
S.VAIDYANATHAN, J.

Suk

don’t file Habeas Corpus for child custody !! Madras HC

“…. Insofar as the custody/entitlement/right over the minor child is concerned, we are of the view that the said question cannot be gone into by this Court, hearing Habeas Corpus Petition. Admittedly, the petitioner has not approached the competent rt/Forum to vindicate his grievance…..”

===========================================================

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 25/01/2006

Coram

The Hon’ble Mr. Justice P.SATHASIVAM
and
The Hon’ble Mr. Justice N.PAUL VASANTHAKUMAR

Habeas Corpus Petition No.40 of 2006

R.Suresh Kumar             … Petitioner

-Vs-

1. K.A.Kalavathi

2. K.M.Arumugham

3. The Inspector of Police,
   Kolathur Police Station,
   Kolathur, Chennai-99.            … Respondent

Petition under Article 226 of the Constitution of India for the issuance of writ of habeas corpus to direct the first respondent to produce bodily the petitioner’s male child by name Siddarth, aged about 4 = years, in the court and hand over the said chi ld to the custody of the petitioner.

!For petitioner     : O.R.Abul Kalam.

For Respondents    : Mr.M.K.Subramanian, Government Advocate.

O R D E R

(Order of the Court was made by P.SATHASIVAM, J.) The petitioner by name R.Suresh Kumar has filed this petition seeking for a direction to the first respondent K.A.Kalavathi, who is none else than his wife, to produce his male child by name Siddarth, aged about 4 = years, in the Court and for furth irection to hand over the child to his custody.

1. In the affidavit filed in support of the above petition, the petitioner has stated that the first respondent is his wife and the second respondent is his father-in-law. The petitioner married the first respondent five years ago and he was blesse rough the first respondent with one male child by name Siddarth, now aged 4 = years, studying in Kinder Garden class, Don Bosco Matriculation School, Madras. They also have a female child by name Mathumitha, aged about 2 = years. According to the pet itioner, on 08.11.2005, the first respondent left the house of the petitioner along with the male child without any intimation. There is no dispute that the petitioner has not made any complaint against anyone including the third respondent.

Learned counsel for the petitioner, by drawing our attention to Section-6 of the Hindu Minority and Guardianship Act, 1956, vehemently contended that inasmuch the petitioner being father/natural guardian of the minor, he is entitled to the custod the child and that this Court can issue suitable direction to the first respondent for handing over the minor in favour of the petitioner. In support of the above contention, he relied on a decision of this Court reported in AIR 1984 Madras 186 (Suresh Babu v. Madhu) and also a decision of the Kerala High Court in Vasudevan vs. Viswalakshmi (AIR 1959 Kerala 403).

Insofar as the custody/entitlement/right over the minor child is concerned, we are of the view that the said question cannot be gone into by this Court, hearing Habeas Corpus Petition. Admittedly, the petitioner has not approached the competent rt/Forum to vindicate his grievance. Inasmuch as even according to the petitioner, the child, aged about 4 = years, is with the first respondent, who is none else than the mother of the child, we are of the view that the claim of the petitioner cannot be gone into by this court in this petition. It is made clear that the petitioner is free to approach the appropriate forum to vindicate his grievance.

With the above observation, the Habeas Corpus Petition is dismissed.

JI.

To The Inspector of Police, Kolathur Police Station, Kolathur, Chennai-99.