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Judgments of Supreme Court of India and High Courts

Rajesh Kapoor vs Central Bureau Of Investigation on 1 February, 2018

CRM-M-9090 of 2015 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRM-M-9090 of 2015 (OM)
Date of Decision: 01.02.2018

Rajesh Kapoor …Petitioner

VERSUS

Central Bureau of Investigation …Respondent

CORAM:- HON’BLE MR. JUSTICE SURINDER GUPTA

Present: Ms. Tanu Bedi, Advocate
for the petitioner.

Mr. S.S. Sandhu, Advocate
for respondent-CBI.

Mr. Ivan Singh Khosa, Advocate
for respondent no. 2.

*******

SURINDER GUPTA, J.

A dispute over the custody of Aishley daughter of Deepak

Kapoor-respondent no. 2 with his sister, namely, Seema and her husband

Surinder Kumar led to registration of FIR No. 119 dated 30.11.2008 at

Police Station Dasuya against petitioner on complaint of his brother Deepak

Kapoor.

2. While going in the background, it is worth noting that a dispute

arose between Deepak Kapoor and his sister Seema Kapoor over the

custody of his daughter Aishley, who at the relevant time was living with

Seema Kapoor. In order to have custody of the child Deepak Kapoor filed

suit under Section 8 of the Guardian and Wards Act, in which learned

Additional Civil Judge (Sr. Division), Dasuya allowed the application filed

by Deepak Kapoor and his wife, for custody of their daughter and directed

Seema Kapoor and her husband, namely, Surinder Kumar to produce minor

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child in Court on 18.11.2006 for handing over her custody to her biological

parents. Seema Kapoor filed CR No. 6449 of 2006 in this Court and vide

order dated 23.12.2006, operation of the order passed by Additional Civil

Judge (Sr. Division), Dasuya was stayed. On 19.11.2007, this Court

directed petitioners i.e. Seema Kapoor and her husband to produce Aishley

Kapoor in Court but due to non-compliance of that order, a show cause

notice for contempt of Court was issued to Seema Kapoor and Surinder

Kumar. A report was called from Senior Superintendent of Police,

Hoshiarpur, who was asked to confirm if Seema and Aishley were residing

with Mr. K. Attwal, 23, Ashford Avenue Hayer Middlesex. Vide order dated

14.07.2008, directions were issued for registration of FIR against Seema

and FIR No. 86 dated 12.08.2008 was registered at Police Station Dasuya,

District Hoshiarpur. Vide order dated 10.12.2008, interim order granted in

favour of revision petitioners was vacated and custody of the child was

ordered to be restored to jurisdiction of this Court.

3. The above background shows that the dispute regarding

custody of Aishley was between Deepak Kapoor and his sister Seema and

the name of petitioner nowhere cropped up in the entire episode. Deepak

Kapoor lodged a compliant against his brother Rajesh Kapoor (petitioner)

on 30.11.2008 at Police Station Dasuya, which led to registration of FIR

No. 119 dated 30.11.2008 at Police Station Dasuya District Hoshiarpur.

The complaint reads as follows:-

“………..I am resident of above mentioned address and

employed as Sub Inspector in the CISF at New Delhi. I have

two children. Elder is daughter Aishely Kapoor and younger

is son Karan Kapoor aged about 7 years. Daughter Aishley

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Kapoor was born on 14.08.1999 in Basra Hospital, Dasuya.

Birth certificate received from Basra Hospital is lying with me.

At present I was posted in U.P. and my wife Jyoti Kapoor was

residing with my parents at Dasuya. When my daughter

Aishley Kapoor was 1½ years old, I had gone to Dasuya to

bring my wife and my daughter. At the instance of my mother,

I left my daughter Aishley to remain with them and taking my

wife alone, I came to U.P. When death of my mother took place

on 28.12.2001, I went to my house. When I was about to take

my daughter alongwith me, my sister Seema Kapoor and

brother Rajesh Kapoor said, “brother, let the baby remain

with us.” Rajesh Kapoor said, “you may take her after my

marriage.” At the instance of my family members, I left my

daughter to remain with them so that they could remain happy.

Thereafter, my brother Rajesh Kapoor without informing us

went to England and similarly my sister Seema Kapoor without

informing us, performed love marriage with Surinder Kumar

s/o Diwan Chand r/o Ward No. 5, Kasba Mohalla, Dasuya. I

went to bring my daughter several times, but my sister Seema

Kapoor and brother Rajesh Kapoor kept on blackmailing me.

Thereafter, my sister Seema Kapoor and brother Rajesh

Kapoor and Surinder Kumar in collusion with each other got

two fake certificates of different dates of my daughter Aishley

Kapoor prepared from the Municipal Committee Office,

prepared photocopies whereof are possessed by me. The

aforesaid three persons, having colluded also got and

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prepared other fake documents of my daughter and got her

false passport issued and took her alongwith them to England

without our consent. Whereas we are her real parents. The

aforesaid three persons by committing forgery, have got bogus

passport of Aishley prepared. Necessary action may please be

taken against them……”

4. After registration of FIR, Rajesh Kapoor and Seema Kapoor

appeared before the Court and were taken into custody in U.K. (United

Kingdom). On 05.12.2008, Rajesh Kapoor was released but Seema Kapoor

remained in custody till 19.12.2008 as she was found overstaying after

expiry of her Visa for United Kingdom (later referred to as U.K.). The

matter regarding custody of Aishley was raised before U.K. Courts, where

petitioner and Seema were again arrested and released on bail vide order

dated 02.06.2009. Metropolitan Police, U.K. observed that no further action

against petitioner was required and charges of abduction of Aishley Kapoor

against him were dropped vide order (Annexure P-18). Vide order dated

17.12.2009, this Court handed over investigation of both the FIRs to CBI,

which registered two separate FIRs and after investigation presented final

report before the Court.

5. It requires to be noted here that CBI in two separate FIRs, in

which investigation was entrusted to it, presented a joint challan (Annexure

P-2). In first FIR RC No. 9(S) 2009/SCB/CHG dated 29.12.2009 registered

by the CBI, petitioner-Rajesh Kapoor was not named and no allegation was

levelled against him. Second FIR RC No. 10(S)/SCB-CHG dated

29.12.2009 was registered on the statement of respondent no. 2-Deepak

Kapoor (complainant). As per allegations in second FIR, respondent no. 2-

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Deepak Kapoor had left his daughter in his house at Dasuya, firstly on

asking of his mother and then on asking of his sister-Seema Kapoor and

brother-Rajesh Kapoor. Thereafter, petitioner-Rajesh Kapoor left for

England and his sister-Seema Kapoor performed love marriage with

Surinder Kumar. Respondent no. 2-Deepak Kapoor tried to bring his

daughter back but his sister Seema Kapoor and brother Rajesh Kapoor kept

on blackmailing him. Allegations against the petitioner is that he in

connivance with his sister-Seema Kapoor got two fake certificates of

different dates of Aishley Kapoor, daughter of respondent no. 2-Deepak

Kapoor, prepared from Municipal Committee office and on the basis of

these documents got her false passport issued and took her to England.

Allegations of fabricating document for Aishley by petitioner were not

proved during investigation by CBI, as is clear from the final report

submitted by CBI, wherein allegations regarding fabrication of documents

relating to date of birth and parentage of Aishley were levelled against

accused Seema Kapoor and Surinder Kumar, which are as follows:-

(i) Investigation has also established that Seema Kapoor

(A-1) in connivance with Surinder Kumar (A-2) had got

entered fake date of birth of Aishley in the records of

Municipal Council, Dasuya and got prepared false birth

certificate of Aishley Kapoor showing her date of birth

as 15.09.2000 and 15.12.2000 by substituting the names

of parents as Surinder Kumar and Seema Kapoor.

(ii) Investigation further established that Surinder Kumar

(A-2) had submitted an application on 24.12.2003 to

Executive Officer, Municipal Council, Dasuya typed in

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Gurumukhi requesting for entering the birth of his

daughter Aishley in the records as 15.09.2000. He has

mentioned in the application that the birth of Aishley has

not been entered in any Govt./Semi Govt. Office. This

application contains forged signatures of Rajni Sharma,

Municipal Councilor, Dasuya. Accused Seema Kapoor

and Surinder Kumar also got prepared two affidavits

sworn in good faith by Parvinder Kumar, President

Municipal Council, Dasuya and purportedly sworn by

Rajni Sharma, Councilor, Municipal Council, Dasuya

wherein both of them have mentioned that they knew the

family of Sh. Surinder Kumar r/o Ward no. 3, Dasuya

personally and Ms. Aishali Gamgotra is real daughter of

Surinder Kumar and Seema Gamgotra born on

15.09.2000 at Dasuya and the entry of birth of Aishli

Gamgotra could not be made in the records at the time of

her birth. The affidavit of Rajni Sharma has been

verified by Sh. Parvinder Kumar whereas affidavit of

Parvinder Kumar has been purportedly verified by Smt.

Rajni Sharma and both the affidavits have been attested

by Executive Magistrate, Dasuya. In his affidavit,

Surinder Kumar has been identified by Parvinder Kumar

in which he has given the date of birth of Aishley as

15.09.2000. The application of Surinder Kumar (A-2)

alongwith above affidavits was sent to SDM, Dasuya

from Municipal Council Office, Dasuya as per procedure

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for obtaining order of SDM for making late entry of

Aishley as on 15.09.2000. These papers (were)

processed by Krishana Kumari (A-4), Clerk of

Municipal Council, Dasuya.

(iii) Investigation has also established that on 27.01.2004,

Naib Tehsildar Dasuya recorded statements of Surinder

Kumar (A-1) who have stated that Aishley was born on

15.09.2000, Naib Tehsildar, Dasuya sent a report vide

no. 119/MC dated 27.01.2000 to SDM, Dasuya. On the

basis of the aforesaid records, SDM, Dasuya vide order

no. 123-25/BIG dated 10.02.2004 ordered for making

necessary entry about the birth of Aishli Gamgotra d/o

Surinder Kumar in the records as on 15.09.2000. The

S.D.M., Dasuya has directed to enter the date of birth in

the name of Asihalee Gamgotra, whereas in the records

of Municipal Council, Dasuya, the name has been

entered as Aishley only by Smt. Krishana Kumari.

(iv) Investigation further established that the original record

regarding issuance of Passport to Seema Kapoor and

Aishley Kapoor has been weeded out by the Passport

Office, Jalandhar as per circular of Ministry of External

Affairs, Govt. of India. However, the scanned files

relating to the said passports were collected from

Passport Officer, Jalandhar which revealed that vide

passport application file of Aishley d/o Surinder Kumar

and Seema Kapoor, Passport No. G-2339146 was issued

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to her on 05.04.2007 valid upto 04.04.2012. Smt.Seema

Kapoor had filed a fake birth certificate of Aishley

issued by Municipal Council, Dasuya showing her date

of birth as 15.09.2000.

(v) During investigation, Parvinder Kumar, Ex-President,

Municipal Council, Dasuya has admitted that he has

signed the affidavits/certificate regarding date of birth

and parentage of Aishley in good faith put before him by

Seema Kapoor (A-1) and Surinder Kumar (A-2). He had

no malafide intention and he is not beneficiary in any

manner. Similarly, Smt. Rajni Sharma stated that she

has never sworn an affidavit regarding date of birth of

Ms. Aishley Gamgotra as 15.09.2000 born to Smt.

Seema Kapoor and Surinder Kapoor. Her signatures

have been forged by someone. The document expert has

also proved that questioned signatures of Smt. Rajni

Sharma do not match with her specimen admitted

signatures.

(vi) During investigation original certificate of date of birth

of Aishley showing as 15.09.2000 used by Seema

Kapoor (A-1) and Surinder Kumar (A-2) for preparation

of her passport could not be seized as the same has been

weeded out by Passport Office, Jalandhar but the

scanned copy is there. However, fake original record

prepared by A-1 and A-2 regarding registration of date

of birth of Aishley as 15.09.2009 in Municipal Council,

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Dasuya have been seized.

(vii) Investigation has established that Deepak Kapoor and

Jyoti Kapoor are the real parents of Ms. Aishley Kapoor,

who was born on 14.08.1999 at Basra Nursing Home,

Dasuya. Surinder Kumar (A-2) and Seema Kapoor (A-1)

got prepared fake birth certificates of Aishley Kapoor

showing her date of birth as 15.09.2000 and 15.12.2000

and substituted their own name as parents of Aishley

Kapoor. The marriage of Surinder Kumar and Seema

Kapoor was solemnized in April, 2003 whereas Aishley

Kapoor was born much earlier i.e. On 14.08.1999. On

the basis of fake birth certificate passport no. G-2331946

was got issued on 05.07.2007 in favour of Aishley

Kapoor. Seema Kapoor has misused the process of

Hon’ble High Court and taken Aishley Kapoor minor

daughter of Deepak Kapoor from the jurisdiction of

Hon’ble High Court by taking undue advantage of the

order dated 23.12.2006. Evidence has also come on

record through the testimony of Deepak Kapoor, Jyoti

Kapoor, Rajni Kohli and Veenu Nanda, sisters of

Deepak and Seema Kapoor that Aishley Kapoor was

never given in adoption by the actual parents and no

adoption deed was ever executed.

6. The above investigation shows that it was Seema Kapoor and

Surinder Kumar, who got prepared birth certificate of Aishley Kapoor and

got incorporated their names in place of her parents. In the entire

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investigation nothing came out that petitioner-Rajesh Kapoor was a party to

fabrication of any of above documents. Even this fact was found that the

passport of Aishley Kapoor was also got issued by Seema Kapoor and

Surinder Kapoor. Allegations against petitioner-Rajesh Kapoor in the final

report are as follows:-

(i) During investigation it is established that Rajesh Kapoor

(A-3) facilitated Seema Kapoor (A-1) and Surinder

Kumar (A-2) in procuring passport of Aishley Kapoor on

the basis of her fake birth certificate and he has filled the

passport application form of Aishley Kapoor knowing

fully well that Aishley Kapoor was the daughter of his

brother Deepak Kapoor and Jyoti Kapoor and she was

born on 14.08.1999 whereas in the passport form of

Aishley Kapoor has been shown born on 15.09.2000 and

the names of parents have been shown as Seema Kapoor

and Surinder Kapoor.

(ii) Investigation has further established that Seema Kapoor

(A-1), Surinder Kumar (A-2) and Rajesh Kapoor (A-3)

conspired and got prepared a passport of Aishley from

Passport Office, Jalandhar on the basis of fake birth

certificate showing her date of birth as 15.09.2000 and

parentage as Surinder Kumar and Seema Kapoor and

finally took her away without the consent of her parents

(Deepak Kapoor and Jyoti Kapoor) to London on

22.12.2007 by misusing order dated 23.12.2006 of the

Hon’ble High Court of Punjab and Haryana, Chandigarh.

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The departure card of Seema Kapoor (A-1) and Ms.

Aishley Kapoor is on record showing their departure

from Amritsar Airport to London on 22.12.2006 by flight

no. HY-448.

(iii) Rajesh Kapoor (A-3) had filled up passport application

form of Aishley showing her date of birth as 15.09.2000

and her parents as Seema Kapoor and Surinder Kumar,

whereas he was fully aware that Ms. Aishley was the

daughter of his brother Deepak Kapoor born on

14.08.1999.

7. It is not disputed that petitioner is living in England and has not

joined investigation. CBI took his specimen signatures from school record

and produced evidence during trial in which Surinder Kumar was convicted

but failed to prove that passport form of Aishley Kapoor was filled in by

petitioner-Rajesh Kapoor. Investigation by CBI has revealed that original

record regarding issuance of passport to Seema Kapoor and Aishley Kapoor

has been weeded out by the Passport Office, Jalandhar.

8. There is another aspect of this case, which attracts attention of

this Court. Complainant-Deepak Kapoor and petitioner-Rajesh Kapoor have

amicably resolved the dispute which led to registration of FIR by Deepak

Kapoor against petitioner. On perusal of reply on affidavit filed by Deepak

Kapoor-complainant, it is evident that he (brother of petitioner) has settled

the dispute with petitioner. Firstly, he (Deepak Kapoor) moved application

for his impleadment in this petition, narrating the factum of compromise,

wherein he has stated that due to deep love and affection and the fact that

petitioner was not seriously involved in the plan of co-accused, namely,

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Seema Kapoor (sister of complainant-respondent no. 2 and petitioner) in

removing his biological daughter, namely, Aishley Kapoor from India and

with the intervention of friends and relatives, he has settled the dispute with

petitioner-Rajesh Kapoor. Though, he has levelled allegations in the second

FIR that petitioner had facilitated Seema Kapoor and Aishley Kapoor to

leave the country and come to England, yet on enquiry, he came to know

that petitioner was having limited work visa at that time and was not in a

position to arrange sponsorship for Seema Kapoor and Aishley Kapoor. He

had also disclosed this fact in his statement to CBI and apprised the

investigating agency that petitioner-Rajesh Kapoor had left India in January,

2007 after birth of his first child and was not seen in India thereafter. Some

of relatives had told him that petitioner-Rajesh Kapoor had come to India

for few days in October, 2007, but on verification from the passport of

petitioner and after having telephonic conversation with him, came to know

that petitioner was not in India from January to October, 2007, as such,

could not play any role in filling up the passport application form of Aishley

in April, 2007. While explaining the reasons for his naming petitioner-

Rajesh Kapoor as a facilitator for Seema Kapoor and his daughter Aishley

Kapoor, complainant-respondent no. 2 has clarified in his reply that he grew

suspicious against the petitioner when in the last week of November, 2008

his sister Seema Kapoor and daughter-Aishley Kapoor were found at the

house of petitioner-Rajesh Kapoor. Before this complainant-respondent no.

2 never suspected the involvement of his brother (petitioner) or filed any

complaint against him. He was not a party in the dispute between

complainant and his sister-Seema Kapoor. Complainant-respondent no. 2

felt annoyed and stopped talking to petitioner after his sister and daughter

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were found at his house. During last year, when health of petitioner-Rajesh

Kapoor deteriorated, he spoke to him and communication between both

clarified all the misgivings/misconceptions and these facts got clarified that

Seema Kapoor had not stayed at the house of petitioner-Rajesh Kapoor

during entire period of her stay in United Kingdom (U.K.). Even U.K.

police had given clean chit to petitioner-Rajesh Kapoor. It was on the

information given by some relative he now suspect that family of Mr.

Atwal, husband of sister of petitioner, had probably arranged sponsorship

for Seema Kapoor and Aishley Kapoor and facilitated their going to U.K.

The enquiry by complainant revealed that petitioner-Rajesh Kapoor had no

personal or any other knowledge about whereabouts of Seema Kapoor and

Aishley Kapoor. CBI has filed challan against the petitioner terming him as

accomplice in abduction of his daughter. Complainant does not want to

press his allegations against the petitioner. Though CBI has levelled

allegation against petitioner that application form for passport of Aishley

Kapoor was filled in by him but it did not find any evidence of forging and

fabricating any other document, relied upon by Seema Kapoor to obtain

passport of Aishley Kapoor. Complainant-respondent no. 2 has stated in

reply on affidavit that in the background of these facts, identification of the

handwriting of petitioner Rajesh Kapoor by him in the scanned copy of

passport application form, filled up in the capital letters in the square blocks

meant for the same, is a bona fide mistake on the part of the deponent. There

is normally some similarity in the handwriting of family members and the

application form could have been filled up by Seema Kapoor herself, who

had also procured the forged ration card, birth certificate, verification report

etc. alongwith her husband Surinder Kumar. The deponent has seen the

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documents attached with the petition and the same show the inability of

even a forensic expert to give any opinion conclusively on the matching of

handwriting of passport application with specimen writing of petitioner.

9. While requesting this Court to quash proceedings against the

petitioner, complainant-respondent no.2 has stated in para 5 of the reply as

follows:-

“5. That the deponent’s family has suffered a lot on account

of this unfortunate litigation between the siblings

resulting in deprivation of love and affection to and

from his own daughter in the life of deponent. The

deponent once again requests the Hon’ble Court for the

sake of peace, love and care in the family to permit him

to compromise the matter with his real brother who is

not in good health and has to take care of three children

alongwith his ailing wife. In view of the stand of the

deponent not to press allegations against his brother,

forcing the petitioner to come to face the trial as an

empty formality would cause a lot of hardship to the two

families i.e. the petitioner’s as well as the deponent’s.

Once again for the long lasting peace amongst the other

siblings in the family, who have already lost both the

parents and one sibling who has gone missing alongwith

the deponent’s child, the deponent requests the Hon’ble

Court to quash the criminal proceedings against the

petitioner.”

10. Learned counsel for the petitioner has argued that this case is

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an example of an unfortunate litigation, which has not only adversely

affected the relations of petitioner with complainant-respondent no. 2 but

both the families have also suffered. It is an unfortunate case where

complainant initially left his daughter with his sister and when she

developed attachment with her, he sought her custody back which sister of

complainant, namely, Seema Kapoor could not bear and took the extreme

step of taking Aishley daughter of complainant-respondent no. 2 to England

and now whereabouts of Seema Kapoor and Aishley Kapoor are not known

to the police and even to complainant. After reaching England, Seema

Kapoor and Aishley Kapoor had gone to the house of petitioner. There is no

allegation that petitioner had in any manner sponsored their visit to England

as he was not in a position to do so at the relevant time. If Seema Kapoor

and Aishley Kapoor had gone to the house of petitioner, it does not make

out the offence of his connivance with Seema Kapoor. Till Seema Kapoor

left India and FIR was registered against her under the order of this Court,

not even a whisper of connivance of petitioner in the matter was there. The

report of U.K. Police that Seema Kapoor and Aishley Kapoor were found at

the house of petitioner in England fueled suspicion of complainant-

respondent no. 2, who was perturbed as his daughter had been taken away

from his custody against his wishes and he, in such moments of annoyance,

anger, agony and desperation, named petitioner as conspirator and lodged

FIR against him. In order to term the petitioner as facilitator in taking away

Seema Kapoor and Aishley Kapoor from India, CBI without any cogent,

convincing and corroborating evidence has levelled allegation that passport

application form of Aishley was filled in by the petitioner. However, this

fact could not be proved as the Government Forensic Expert, who appeared

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as PW-9 during trial, has stated that scanned documents could not be

examined for comparison of handwriting. The investigating agency i.e. CBI

had also commented in support of the report of forensic expert, endorsing

opinion of forensic expert, copy of which has been placed on file as

Annexure P-37. CBI tried to prove handwriting of petitioner by leading

evidence during trial but failed. If this part of evidence is excluded, there is

no evidence on record to show that petitioner was in India when passport

form of Aishley was submitted before the Passport Authorities or he had

filled in that passport form. Even complainant-respondent no. 2 in his reply

has stated that he was under some misconception regarding handwriting of

petitioner in the passport form.

11. The other aspect of the case is that the dispute revolves around

custody of Aishley Kapoor, daughter of complainant-respondent no. 2,

which is admittedly with Seema Kapoor. Complainant-respondent no. 2 has

settled the dispute with petitioner and has filed reply on affidavit to this

effect. He has categorically stated in reply that allegations were levelled

against the petitioner under a wrong feedback given by his relatives. He has

sought quashing of FIR against the petitioner as all the disputes have been

settled with him. In view of settlement between petitioner and complainant-

respondent no. 2, there is no purpose of keeping this litigation alive. Long

drawn family dispute resolved amicably by the parties, will give an

opportunity to them to lead remaining part of their life in a cordial, amicable

and peaceful manner.

12. Learned counsel for complainant-respondent no. 2 has argued

that the family dispute between complainant and petitioner has since been

resolved and he endorses submissions of learned counsel for petitioner and

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requests that instant FIR registered against the petitioner may be quashed.

13. Learned counsel representing CBI has vehemently opposed the

submissions of learned counsel for the petitioner and learned counsel for

complainant-respondent no. 2 seeking quashing of the FIR. He has argued

that complainant-respondent no. 2 while appearing as PW-1 before the trial

Court has stated that application form for issuance of passport of Aishley

was filled in by petitioner-Rajesh Kapoor and he has identified his

handwriting. Amrik Singh (PW-18) had given the sample handwriting of

Rajesh Kapoor. Though, forensic expert has opined that no report on the

basis of scanned copy of application produced in this case could be given,

still facts and circumstances of the case show that petitioner was a

conspirator with Seema Kapoor in taking away Aishley Kapoor, daughter of

complainant-respondent no.2 from this country. Seema Kapoor and Aishley

Kapoor were found living at the house of petitioner-Rajesh Kapoor in

England. Though, complainant has now reconciled and compromised the

matter with petitioner but FIR cannot be allowed to be quashed as earlier the

request was made to U.K. Courts for extradition of Rajesh Kapoor in this

case.

14. On giving a careful thought to respective submissions of

learned counsel for petitioner, learned counsel for complainant-respondent

no. 2 and learned counsel appearing for CBI, I find that it is a very hard case

where complainant, who was aggrieved and annoyed as he could not get

custody of his daughter from his sister, filed a petition against her and made

all out efforts to get custody of his daughter back but failed as his daughter

was taken to U.K. by his sister. The dispute started between complainant

and his sister in the year 2006 and vide order dated 03.11.2006, Seema

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Kapoor was directed to produce the child in Court. She filed revision in this

Court and obtained ex parte interim stay vide order dated 23.12.2006.

Thereafter, she did not produce the child in this Court despite directions and

ultimately left for U.K. with child on 22.12.2007. This Court vide order

dated 14.07.2008 directed registration of FIR against Seema Kapoor and her

husband Surinder Kumar and Dasuya police registered FIR No. 86 dated

12.08.2008. Till filing of the petition seeking custody of the child and

registration of FIR under orders of this Court, there was no whisper about

involvement of petitioner in the dispute between complainant-respondent

no. 2 and his sister-Seema Kapoor. The matter got flared up when Seema

Kapoor was located by U.K. police alongwith Aishley Kapoor at the house

of petitioner-Rajesh Kapoor. Another FIR bearing no. 119 dated 30.11.2008

was registered at Police Station Dasuya on the complaint of complainant-

respondent no. 2 (Deepak Kapoor).

15. Deepak Kapoor was aggrieved as his daughter, Aishley Kapoor,

had been taken away by his sister. Report that Seema Kapoor and Aishley

Kapoor, daughter of complainant-respondent no. 2, had been found at the

house of petitioner-Rajesh Kapoor in England, appears to have fueled the

matter leading to levelling of allegations against the petitioner as well. It is

not disputed that during investigation no tangible evidence could be found

to this effect that petitioner-Rajesh Kapoor had facilitated travel of daughter

of complainant-respondent no. 2 from India to England or had sponsored

her visit alongwith Seema Kapoor to England. It appears that he was not in

a position to sponsor visit of Seema Kapoor and Aishley Kapoor to

England. The only allegation on which CBI has based its case against the

petitioner is that he facilitated taking out of Seema Kapoor from this country

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by filling up passport form of Aishley Kapoor. However, this plea could

not be substantiated by any report of handwriting expert or visit and stay of

petitioner in India, when the application form was filled up. Attempt was

made to obtain report of handwriting expert, who gave opinion that line

quality of strokes in the writing in scanned copy could not be studied and no

final report about handwriting could be given. In report, copy of which has

been placed on file as Annexure P-37, it was commented by the

investigating agency about report of handwriting expert as follows:-

“3. During investigation itself, the scanned copies of

Passport Application files of Aishley Kapoor and Rajesh

Kapoor were sent to Government Examiner of

Questioned Documents, Directorate of Forensic

Science, Ministry of Home Affairs, Govt. of India,

Shimla alongwith the admitted hand writing of Rajesh

Kapoor for seeking expert opinion with regard to his

hand writing on the said documents. The scanned

copies of Passport Application files of Aishley Kapoor

and Rajesh Kapoor were marked as Q-35 to Q-50 and

Q-83 to Q-92 respectively. The admitted hand writing

of Rajesh Kapoor were marked as A-1 to A-6. The letter

no. 988 dated 26.03.2010 of CBI, SCB, Chandigarh

addressed to Government Examiner of Questioned

Documents, Shimla is enclosed as Annexure-A.

4. With regard to the above queries i.e. Q-35 to Q-50 and

Q-83 to Q-92, the Government Examiner of Questioned

Documents, Directorate of Forensic Science, Ministry

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of Home Affairs, Govt. of India, Shimla vide its report

no. CX-67, 68/10-177 dated 21.05.2010 Annexure-B has

opined as below:-

“Further it is observed that the documents

marked Q35 to Q92 are reproduction copies

probably prepared through process of scanning.

The line quality of the strokes occurring in the

writings in the aforesaid documents could not be

studied.”

5. CBI had sought the opinion of Government Examiner of

Questioned Documents, Shimla on the collected scanned

copies of the above documents, but the expert denied to

give the opinion as the line quality of the strokes in the

writings could not be studied. Whereas, Dr. Jassy

Anand, Forensic Expert, Chandigarh has given a

definite opinion on the basis of photocopies of the said

collected scanned documents which were supplied to the

accused persons by CBI. The Government Examiner,

who has given his opinion is an unbiased,

uninterested/neutral party as far as this case is

concerned and on the other hand Dr. Jassy Anand is a

Private Practitioner, who gives opinion by charging

money and the chances of giving a correct/unbiased

opinion diminishes upto a great extent. The Government

Examiner by declining to give opinion has exercised the

precise degree of caution which is required to be

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exercised by a true professional. Hence, the decision

taken by Government Examiner is more trust worthy.”

16. It is not disputed that before the trial Court prosecution could

not prove that passport form is proved to have been filled up by the

petitioner. It is nowhere the case of prosecution that petitioner was party to

forging of any document regarding date of birth and parentage of Aishley

Kapoor, which were made part of application for issuance of her passport.

The contention that passport form was filled in by the petitioner appears to

be a mere suspicion in the absence of any convincing and cogent evidence

in this regard. The complainant has now come up with a categorical plea

that he has stated to CBI that petitioner-Rajesh Kapoor has left the country

in January, 2007 and was not in India from January to October, 2007. He

had not seen petitioner in India after January, 2007. He suspected the

involvement of petitioner only for the reason that his sister Seema Kapoor

and daughter-Aishley Kapoor were found at his house in England. He had

made enquiries and is now satisfied that petitioner was nowhere involved in

entire matter and seeks quashing of the FIR.

17. So far as contention of learned counsel for CBI that

complainant-respondent no. 1 had supported the prosecution case during

trial, nowhere makes out that he cannot settle the family dispute with

petitioner at any later stage. The case relates to custody of daughter of

complainant and his entire grievance was initially against his sister-Seema

Kapoor. Though, CBI in order to get extradition of petitioner had moved to

U.K. Courts but this fact in itself does not bar two brothers to settle their

dispute, misconception, misgivings and misunderstanding. Now

complainant is satisfied that petitioner had no role either in filling up

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passport application form of Aishley Kapoor or in facilitating her elopement

from the country with Seema Kapoor. Complainant on enquiry has now

come to know that travel of his sister with Aishley Kapoor was perhaps

facilitated by his other sister and her husband and not by the petitioner.

18. Keeping in view above facts, I find no reason to keep the

prosecution of petitioner pending. While explaining the scope of powers

vested in this Court under Section 482 Cr.P.C., Full Bench of this Court in

case of Kulwinder Singh vs. State of Punjab, 2007 (3) RCR (Crl.) 1052,

has observed as follows:-

“25. The power under Section 482 of the Cr.P.C. cannot be a
hostage to one class or category of cases. That would be
a complete mis construction of the intent of the
Legislature, who placed its utmost faith in the inherent
power of the High Court to break free the shackle of
other provisions of the Code. to give effect to any order
under it or to prevent the abuse of the process of any
Court or otherwise to secure the ends of justice.

26. The wide amplitude of this provision of law cannot be
diminished by any myopic interpretation and any
straightjacket prescription.

27. Shri R.S. Cheema, learned Senior Advocate, who
assisted the Bench as Amicus Curiae, highlighted the
inadequacies of the criminal justice system in order to
propound and promote the principle that under Section
482 of the Cr.P.C., the High Court can effectively
exercise its power in an appropriate case and intervene
to quash an F.I.R. even when the case discloses a non-
compoundable offence and where the parties have
voluntarily entered into a compromise. To illustrate, he
submitted that the Legislature, in its wisdom, is seeking
to introduce a pre-bargaining in the country and in this
scenario, to curtail the power under Section 482 by

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reading into the provisions of law the non-existing lines
would , indeed, be a travesty of justice, especially in
view of the fact that there is a wide spread tendency in
the society now to use the arm of criminal law to settle
civil disputes………..

28. To conclude, it can safely be said that there can never
be any hard and fast category which can be prescribed
to enable the Court to exercise its power under Section
482 of the Cr.P.C. The only principle that can be laid
down is the one which has been incorporated in the
Section itself, i.e., “to prevent abuse of the process of
any Court” or “to secure the ends of justice”.

29. In Mrs. Shakuntala Sawhney v. Mrs. Kaushalya
Sawhney and Ors. , Hon’ble Krishna Iyer, J. aptly
summoned up the essence of compromise in the
following words:-

“The finest hour of justice arrives propitiously when
parties, despite falling apart, bury the hatchet and
weave a sense of fellowship of reunion.”

30. The power to do complete justice is the very essence of
every judicial justice dispensation system. It cannot be
diluted by distorted perceptions and is not a slave to
anything, except to the caution and circumspection, the
standards of which the Court sets before it, in exercise
of such plenary and unfettered power inherently vested
in it while donning the cloak of compassion to achieve
the ends of justice.

31. No embargo, be in the shape of Section 320(9) of the
Cr.P.C., or any other such curtailment, can whittle down
the power under Section 482 of the Cr.P.C.

32. The compromise, in a modern society, is the sine qua
non of harmony and orderly behaviour. It is the soul of
justice and if the power under Section 482 of the Cr.P.C.
is used to enhance such a compromise which, in turn,
enhances the social amity and reduces friction, then it

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truly is “finest hour of justice”. Disputes which have
their genesis in a matrimonial discord, landlord-tenant
matters, commercial transactions and other such
matters can safely be dealt with by the Court by
exercising its powers under Section 482 of the Cr.P.C.
in the event of a compromise, but this is not to say that
the power is limited to such cases. There can never be
any such rigid rule to prescribe the exercise of such
power, especially in the absence of any premonitions to
forecast and predict eventualities which the cause of
justice may throw up during the course of a litigation.

33. The only inevitable conclusion from the above
discussion is that there is no statutory bar under the
Cr.P.C. which can affect the inherent power of this
Court under Section 482. Further, the same cannot be
limited to matrimonial cases alone and the Court has
the wide power to quash the proceedings even in non-
compoundable offences notwithstanding the bar under
Section 320 of the Cr.P.C., in order to prevent the abuse
of law and to secure the ends of justice.

34. The power under Section 482 of the Cr.P.C. is to be
exercised Ex-Debitia Justitia to prevent an abuse of
process of Court. There can neither be an exhaustive list
nor the defined para-meters to enable a High Court to
invoke or exercise its inherent powers. It will always
depend upon the facts and circumstances of each case.
The power under Section 482 of the Cr.P.C. has no
limits. However, the High Court will exercise it
sparingly and with utmost care and caution. The
exercise of power has to be with circumspection and
restraint. The Court is a vital and an extra-ordinary
effective instrument to maintain and control social
order. The Courts play role of paramount importance in
achieving peace, harmony and ever-lasting congeniality
in society. Resolution of a dispute by way of a

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compromise between two warring groups, therefore,
should attract the immediate and prompt attention of a
Court which should endeavour to give full effect to the
same unless such compromise is abhorrent to lawful
composition of the society or would promote savagery.”

19. In view of facts and circumstances of this case, as discussed

above and observations of Full Bench of this Court in Kulwinder Singh

(supra), I am of the considered opinion that it is a fit case in which the

impugned FIR should be quashed. Keeping the case pending will not serve

the ends of justice. The quashing of the FIR will provide the parties to this

petition an opportunity to live in an amicable, peaceful and harmonious

atmosphere which is not only in the interest of the parties but also for their

families and ultimately the society at large.

20. Keeping in view above facts and the reply of complainant, this

petition is accepted and FIR No. RC-10(S)/SCB/CHG dated 29.12.2009

arising out of FIR No. 119 dated 30.11.2008, registered at Police Station

Dasuya, District Hoshiarpur, against the petitioner and challan filed against

him by CBI is ordered to be quashed with all other consequential

proceedings.

21. The above order will also result in quashing of allegations

levelled against the petitioner in common final report filed by CBI before

the Court in FIR Nos. RC-9(S)/2009/SCB/CHG and RC-10(S)/

2009/SCB/CHG dated 29.12.2009.

( SURINDER GUPTA )
February 01, 2018 JUDGE
jk

Whether speaking/reasoned: Yes/No

Whether Reportable: Yes/No

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