The Supreme Court of India.
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New Delhi: The Supreme Court has said every deceitful act is not unlawful, just as not every unlawful act is deceitful and some acts may be termed both as unlawful as well as deceitful, and such acts alone will fall within the purview of Section 420 IPC.
The top court on Monday quashed an FIR lodged against a woman and her father by her husband after a martial dispute for allegedly fabricating his signature to obtain passport for their minor son.
A bench of Justices Surya Kant Dipankar Datta allowed a plea filed by Mariam Fasihuddin and her father against the Karnataka High Court's order with Rs one lakh cost on husband. It said the Trial Magistrate and the High Court unfortunately failed to appreciate that the genesis of the present controversy lies in a marital dispute.
It said the elementary ingredients of ‘cheating’ and ‘forgery’ are conspicuously missing in the case, so the continuation of the criminal proceedings before a Bengaluru court against the appellants is nothing but an abuse of the process of law.
"This court, therefore, will exercise caution before invoking such severe offences and penalties solely on the basis of conjectures and surmises," the bench said.
The bench also found the conduct of complainant husband in the case infringed upon the right of the minor child to travel and seek care and company of the father.
"The Trial Magistrate should have exercised prudence, making at least a cursory effort to discern the actual ‘victim’ or ‘victimiser’. The failure to do so is both fallible and atrocious," the bench said.
It also noted "glaring procedural irregularities", overlooked by the Trial Magistrate, and other "improprieties" as the supplementary charge sheet filed by the investigating authority included the offence of ‘forgery’ under Sections 468 and 471 IPC, on a forensic report obtained by the husband through a private lab.
"A paid report obtained from a private laboratory seems to be a frail, unreliable, unsafe, untrustworthy and imprudent form of evidence, unless supported by some other corroborative proof. It is painful to mention that husband has not produced any other substantive proof, nor has the investigating agency obtained any such material for further investigation. The basis on which the Trial Magistrate formed a prima facie opinion is beyond our comprehension," the bench said.
The bench also said the timeline is noteworthy since immediately after the appellant wife filed an FIR against the husband on April 8, 2010, invoking Sections 346, 498A, 506, and 34 IPC, the counter complaint by the husband followed on May 13, 2010.
The marriage between the parties was solemnised in 2007. After a lot of persuasion, he agreed to take wife to London. However, soon after, he confined her to the residence of her sister-in-law. She, somehow, managed to return to India. Husband during his visit in 2009 threatened the wife, and took away the minor child's passport to arrange the travel.
Having noted the facts, the court also wondered the passport was issued sometime in 2009 and the question was whether it is a mere coincidence that the husband chose to make his complaint only after an FIR had been lodged against him.
Though the law imposes an obligation upon the husband to provide adequate maintenance to his wife and the minor child, the complaint lodged by the husband on May 13, 2010, while unleashing accusations of forgery and fabrication, is conveniently silent on what measures he has undertaken for his minor child’s welfare, the bench said.
Under Section 12(b) of the Passports Act, 1967, the bench said the cognisance of such like offence can be taken only at the instance of the Prescribed Authority and no complaint to that effect has been disclosed against the appellants.
"The appellants were unnecessarily implicated and dragged into criminal proceedings, thereby causing undue hardship to them," the bench said.
The court also noted the issue at hand has adversely impacted the rights and interests of the minor child.
"The right to travel abroad is a fundamental right of an individual, albeit not absolute, and subject to established legal procedures. The conduct exhibited by the husband infringes upon the best interests of the minor child, which necessitates the child’s travel abroad for the realisation of opportunities and intrinsic value, aligning with the child’s dignity, as enshrined by the Constitution," the bench said.