IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN ITS CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION No. of 2007
In the matter of Article 227 of the Constitution of India
In the matter of Sec. 482 of the Code of Criminal Procedure, 1973
In the matter bearing No. Regular Cr. CC No. 317 of 2000 pending before the Honourable Court of Jt. Civil Judge JD & Jmfc Vasai, Thane Dt.
1 Mr. Rudolph J Dsouza,
Indian Passport Holder No. Petitioner
1. Mrs. R Dsouza
2 State of Maharashtra Respondents
(Respondent No. 1 Original Complainant)
HUMBLE PETITION OF THE PETIONERS ABOVE NAMED
MOST RESPECTFULLY SHEWETH:
1. The Petitioner is a non resident Indian, the husband of Respondent No. 1 holding Indian Passport presently at kuwait having permanent place of address mentioned in the cause title. The Respondent No. 1 is the estranged wife of this petitioner who had filed a false criminal complaint against the petitioner under sections 498(A), 323, 504, and 506 IPC. Respondent No. 2 is State, which is formal and necessary party for the adjudication of the present Petition (Hereafter Respondent No. 1 be referred as Respondent and Respondent No. 2 as State for clarity and convenience)
2. The Petitioner got married to the Respondent No.1, as per Christian Rites and Ceremonies lived as husband and wife within the jurisdiction of this Honourable Court The Respondent had filed a Criminal Complaint bearing No. Regular Cr. CC No. 317 of 2000 U/s 498(A), 323, 504, and 506 IPC before the Honourable Court of Jt. Civil Judge JD & Jmfc Vasai, Thane Dt., which is being challenged by this Petition. Hereto Annexed and Marked Ex “A??? is the Charge sheet of the said case, received by the Petitioner.
3. The Honourable Magistrate at Vasai Court at, Mumbai was pleased to frame the Charge against the Petitioner calling upon him to answer the charges. The Petitioner despite being out of India due to exigencies of employment remained present/attended the Honourable Trial Court on many a occasion but the prosecution for reasons best known to them did not proceed or shown any seriousness in pursuing the prosecution against this Petitioner. The petitioner submits that the case as old as 7 years and being dragged on due to the non-cooperation of the complainant and the prosecution witness. This petitioner crave to refer to and rely upon Ex. 30 of the proceedings of the trial court and the Roznama dated 27/1/05 wherein the Honourable Court was pleased issue bailable warrant in the sum of Rs. 1000 against witnesses No. 2 & 4 and the matter was adjourned to 3/3/05.
4. The petitioner further submits that till date non of the witnesses remained present and the prosecution made no efforts worth its name to and the Honourable Court was further pleased to observe and direct the prosecution through the learned APP, to take steps for conducting of the trial on 27/9/2005 and the matter was adjourned to 7/10/2005. It is further submitted on behalf of the petitioner that this order/direction has also not been carried out for reasons which are best known to the prosecution and not known to the petitioner accused. The Petitioner craves leave to refer to and rely upon the Roznama of the trial Court when produced.
5. The Petitioners submit that the complaint of the estranged wife which is under challenge is woven in a Tissue of Lies and material facts are suppressed. And the same is manifested by the fact that neither the original complainant nor any of her family members who are the material witnesses in the present complaint has never ever appeared/attended the trial Court despite being aware of the trial dates before the Honourable trial court at Vasai.
6. The Petitioners is gainfully employed overseas and it is at the risk of his job that he avails leave and it is and is attending the Honourable trial Court. The petitioner cannot frequently take leave and risk his employment to satiate the mischievous and evil designs of the Respondent and the Honourable Court cannot be used for the purpose settlement of private disputes at the cost of the public exchequer and the valuable judicial time should not be wasted. The Respondent has no respect for the institution of law and she therefore ought not deserve any further indulgence either at the trial Court or by this Honourable Court and the pending trial before the Honourable Trial Court at Vasai be quashed and set aside and that this Petitioner be set at liberty to arrange his affairs within the confines of law.
7. The Petitioners has no antecedence and is a law abiding citizen and his unwarranted and unjustified attendance on the to answer the charge sheet issued on the basis of half baked and concocted stories would cause irreparable loss and damage to him as his right to livelihood is being deprived due to the frequent visits to India for attending the Trial Court at Vasai. The Petitioner further submits that the whole and sole purpose of filing this false and frivolous complaint is to cause avoidable hardships and maximum inconvenience to the Petitioners. The Petitioners therefore approached this Honourable Court under the Extraordinary Jurisdiction u/s. 482 of Cr. P C. for protection of his Honour and personal Liberty as enshrined under Article 21 of the Constitution of India.
8. The Petitioner therefore submits that the Respondent have misused and abused the process of law. Respondent also played fraud on the Honourable Court and deserves to be dealt with the firm hand of law.
9. Being aggrieved by the framing of Charges/Procrastinating Trial at Honourable Court of Jt. Civil Judge JD & Jmfc Vasai, Thane Dt., this Petitioner approaches this Honourable Court challenging the said non prosecution/inordinate delay of more than 6 years u/s 498(A), 323, 504, and 506 IPC on the following amongst other grounds which are in the alternative and which are without prejudice to one another.
i) The Honourable trial Court in pursuing the matter is perverse and illegal ex-facie.
ii) The Honourable trial Court suffers from infirmity to the facts of the case and the law of the land, as it failed to discharge the accused despite he remaining present and co-operating with the prosecution.
iii) The Respondent having suppressed the material fact the Honourable Court could have persuaded itself to acquit the accused, of the false and trumped up charges against him.
iv) The Honourable Trial Court after waiting for so long a period for the presence of the complainant and her witnesses ought to have held that they are not interested in pursuing the matter. u/s 498(A), 323, 504, and 506 IPC would not have insisted on the personal attendance of the petitioner accused. The Honourable Trial Court could have acquitted the accused petitioner much earlier in time looking at the facts and circumstances of the present case
v) The Honourable Trial Court ought to have applied its mind while adjourning the matter from time to time without any progress made in the trial and the accused is constrained to attend the Honourable Court only for seeking adjournments at the cost of his job and career .
vi) The Honourable Trial Court miserably failed to appreciate the peculiar situation in which the petition is placed and that the present case is settling of a private family dispute at the cost of the valuable time of the public exchequer.
vii) The Honourable Trial Court ought to have used its rights and powers with which it is vested with and could not have compelled the petitioner to the approach this Honourable Court in its extraordinary jurisdiction.
viii) The Honourable Trial Court ought to have appreciated that pursuing with the prosecution is only persecution on this innocent petitioner.
viii) The Honourable Trial Court ought to have appreciated that Sec 498(A), 323, 504, and 506 IPC, is an instance of misuse by revengeful vengeance wife, against the innocent husband. And the same could not have been the intention of the legislature to perpetrate offences on innocent husband at the hands of the crooked/spiteful wife who happened to misuse and abuse the provisions intended for devout wife
ix) The continuance of the prosecution initiated by the Respondent would result paying premium on dishonesty and would result in putting premium on dishonest and encouraging malicious prosecution and/or persecution
x) Even otherwise the order suffers from equity and Principles of natural justice i.e., denying reasonable opportunity to the Petitioner and ineffective and object surrender of the Public Prosecutor.
10. The Petitioner is a non resident Indian, native of Karnataka State presently at has committed no offence and there being no prima facie Case against him, he ought not be visited with uncalled and unwarranted punishment of shunting to Mumbai to satiate the evil desires of Respondents. The Petitioners are a law abiding peace loving citizens, respectable law abiding citizens, with no adverse antecedents. The impugned complaint is pending before the Trial Court in Vasai. Hence this Honourable Court has Jurisdiction to entertain, try and dispose of present Petition.
11. The Petitioner further submits that they have no other effective and efficacious remedy available to them except the present one. The Petitioner has not filed any other Petition, application or other proceedings either in this Honourable Court or in the Honourable Court Supreme Court.
12. The Petitioner craves leave to, add, alter, amend, substitute and/or delete any of the averments and/or grounds herein before cited.
The Petitioners therefore prays that
a) this Honourable Court be graciously pleased to issue a Writ of Certiorari or any other appropriate Writ, direction or order quashing the proceedings pending before the Court of Jt. Civil judge JD & Jmfc Vasai, Thane Dt.
b) pending the hearing and final disposal of the present Petition, this Honourable Court be pleased to stay the operation and/or keep in abeyance the proceedings pending before the Trial Court i.e., Court of Jt. Civil Judge JD & Jmfc Vasa,i Thane Dt.
c) for any other or further relief as the facts and circumstances of the case may require;
d) for the cost of the Petition
Dated this ________ day of ______ 2007