—
Supreme Court of India
Mariam Fasihuddin vs State By Adugodi Police Station on 22 January, 2024
Author: Surya Kant
Bench: Dipankar Datta, Surya Kant
2024 INSC 49 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.335/ 2024
(Arising out of Special Leave to Appeal (Crl.) No. 2877/2021)
Mariam Fasihuddin Anr. ….Appellant(s)
versus
State by Adugodi Police Station Anr. ….Respondent(s)
JUDGEMENT
SURYA KANT, J.
Leave granted.
2. The Appellants assail the judgment dated 18.02.2021, passed by
the High Court of Karnataka, at Bengaluru (hereinafter, ‘High
Court’), whereby their Criminal Revision Petition challenging the order
dated 15.03.2018 of the VI Additional Chief Metropolitan Magistrate,
Bengaluru (hereinafter, ‘Trial Magistrate’) has been dismissed.
Consequently, the Appellants’ prayer to discharge them in connection
Signature Not Verified
with FIR No. 141/2010 under Sections 420, 468, 471 read with
Digitally signed by
satish kumar yadav
Date: 2024.01.22
16:57:51 IST
Reason:
Section 34 of the Indian Penal Code, 1860 (hereinafter, ‘IPC’)
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registered at P.S. Adugodi, Bengaluru has been concurrently turned
down.
A. FACTS
3. The brief facts that are relevant to the present proceedings are
set out as follows:
3.1. The Appellant No. 1 – wife, and Respondent No. 2 – husband, got
married in Bengaluru on 02.08.2007. At the time of their marriage,
Respondent No. 2 was engaged in a software business, located in New
Castle Upon Tyne, the United Kingdom. During this period,
Respondent No. 2 statedly assured the Appellant – wife that post
marriage they would reside together in London. It is the Appellants’
case that Respondent No. 2 initially refused to take the Appellant –
wife with him, but after considerable persuasion, she managed to
accompany Respondent No. 2 to London. However, soon after,
Respondent No. 2 allegedly abandoned her and forcefully confined her
to the residence of her sisterinlaw. At the same time, Respondent No.
2 returned to India.
3.2. Appellant No. 2, who is the father of the Appellant – wife, had to
intervene in the aforesaid circumstances and facilitate the latter’s
return to India. Subsequently, on 02.06.2008, the Appellant – wife
gave birth to a male child. The Appellants allege that Respondent No.
2 and his family members did not provide any financial assistance to
the Appellant – wife and the minor child. In January, 2009, the
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Appellant – wife sought to obtain a passport for the minor child basedallegedly upon Respondent No. 2’s instructions. Respondent No. 2 also
assured them that he had arranged their stay in the United Kingdom.
Shortly thereafter, the minor child’s passport was issued, and
Respondent No. 2 obtained a sponsorship letter from his brotherin
law, Dr. M.K. Shariff, which was duly forwarded to the United
Kingdom High Commission. The sponsorship letter stated that Dr.
M.K. Shariff would accommodate the Appellant – wife and the minor
child during their visit to the United Kingdom and specifically
mentioned the minor child’s passport number.
3.3. However, as per the allegations of the Appellants, the duration of
marriage with Respondent No. 2 was fraught with physical and mental
torture solely on account of Respondent No. 2’s relentless financial
demands. More pertinently, Respondent No. 2, during his visit to India
towards the end of 2009, subjected the Appellant – wife to coercion
and torture. These acts of intimidation prompted the Appellant – wife
to file a complaint against Respondent No. 2 and his family members
on 07.04.2010 before the Basavangudi Women Police Station,
Bengaluru. The complaint was registered as Crime No. 68 / 2010,
under Sections 346, 498A and 506, read with Section 34 IPC.
Additionally, the complaint alleges that Respondent No. 2, on the
pretext of arranging for their travel to the United Kingdom, took away
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the minor child’s passport and jewellery items belonging to the
Appellant – wife.
3.4. Having learnt of the complaint filed by his wife, Respondent No.
2 also lodged a complaint of his own on 13.05.2010 before the
Adugodi Police Station, alleging that the Appellants had forged his
signatures on the minor child’s passport application and submitted
the same to the Regional Passport Office, Bengaluru, at the time when
Respondent No. 2 was in the United Kingdom. This complaint was
registered as FIR No. 141/2010 under Sections 420, 468 and 471 read
with Section 34 IPC (hereinafter, ‘Concerned FIR’).
3.5. Following the investigation conducted in the Concerned FIR, the
investigating agency proceeded to file a chargesheet, implicating the
Appellants and one Mr. Aksar Ahmed Sheriff, who is a travel agent, for
procuring the minor child’s passport using forged documents. Notably,
the charges for offences under Sections 468 and 471 IPC were
dropped. Consequently, a case numbered CC No. 23545 / 2011
commenced before the Trial Magistrate only for the offences
punishable under Section 420 read with Section 34 IPC.
3.6. The Appellants sought quashing of the aforementioned
chargesheet vide Criminal Petition No. 3600 / 2012, invoking the
powers of the High Court under Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter, ‘CrPC’), but their petition was
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dismissed vide order dated 22.04.2014. However, liberty was granted
to the Appellants to approach the Trial Magistrate and seek their
discharge from the case CC No. 23545/2011.
3.7. The Appellants consequently moved an application under
Section 239 CrPC, seeking discharge in CC No. 23545 / 2011. In the
meantime, Respondent No. 2 also invoked Section 173(8) CrPC and
sought further investigation of the offences under Sections 468 and
471 IPC in the Concerned FIR. The Trial Magistrate on 24.06.2015,
vide separate orders, allowed Respondent No. 2’s prayer for further
investigation and directed him, being the de facto complainant, to
furnish necessary evidence before the investigating officer, if so
required. On the other hand, the Trial Magistrate dismissed the
Appellants’ discharge application on the ground that the question as
to whether an offence under Section 420 IPC was made out or not
would be decided during the course of trial.
3.8. Pursuant to the abovementioned order of the Trial Magistrate,
the investigating agency filed a supplementary chargesheet against the
Appellants on 25.07.2017, adding offences under Sections 468, 471,
420, 120B and 201 read with Section 34 IPC and Section 12(b) of the
Passports Act, 1967. At this juncture, it is imperative to highlight that
the concerned Passport Officer was also implicated as Accused No. 4,
for allegedly providing false information regarding the availability of
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the original passport of the minor child and being complicit with the
Appellants in its destruction. The supplementary chargesheet also
referred to a report provided by the State Forensic Laboratory,
Madiwala, Bengaluru, dated 27.02.2016 (hereinafter, ‘State FSL’),
which categorically states as follows:
“Opinion on questioned photocopied signatures
marked as Q1 to Q4 is not expressed since, the
questioned photocopied signatures are showing
bad line quality of strokes.”3.9. In addition to the State FSL Report, the supplementary
chargesheet also mentioned a report dated 15.07.2013 purportedly
obtained by Respondent No. 2 from a private agency, known as, ‘Truth
Lab’. This report opined that the signatures on the passport
application did not signify a close resemblance with the specimens of
Respondent No. 2’s signatures.
3.10. Subsequent to these developments, when the case CC No.
23545 / 2011 was taken up for hearing before charge, it was urged on
behalf of the Appellants that there were no grounds to frame charges.
However, the Trial Magistrate repelled this contention by order dated
15.03.2018 and declined to discharge them.
3.11. The Appellants preferred to challenge the Trial Magistrate’s
order vide Criminal Revision Petition No. 692 / 2018, but as noticed at
the outset, the High Court dismissed the same via the impugned order
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dated 18.02.2021, primarily on the ground that there were specific
allegations against the Appellants which required a fullfledged trial.
3.12. The aggrieved Appellants are now before this Court.
B. CONTENTIONS OF THE PARTIES
4. Mr. Ranbir Singh Yadav, Learned Counsel appearing for the
Appellants, argued that Respondent No. 2’s complaint pertaining to
the forgery of the passport application was merely a counterblast to
the Appellant – wife’s complaint alleging cruelty against him. He
contended that Respondent No. 2 had expressly consented to
obtaining the minor child’s passport and after the issuance of
passport, had even sent the sponsorship letter authored by his
brotherinlaw, Dr. M.K. Shariff, for the relocation of the Appellant –
wife and the minor child to London. It was argued that this
sponsorship letter is vital since it had been obtained at the instance of
Respondent No. 2 and it specifically mentioned the passport number
of the minor child, thereby implying consent of Respondent No. 2.
5. Mr. Yadav further contended that the opinion rendered by the
State FSL was inconclusive as to the alleged forgery, and no additional
material whatsoever had been recovered by the investigating agency
between filing the original chargesheet and the supplementary
chargesheet. Mr. Yadav also highlighted the reliance placed by both
the High Court and the Trial Magistrate on the opinion of a
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handwriting expert obtained by Respondent No. 2 through a private
agency – known as the Truth Lab. He vehemently urged that the State
FSL Report should have been given utmost weightage in comparison to
a paid opinion so as to uphold the fairness and impartiality of the
investigation. Mr. Yadav contended that no prima facie case had been
made out against the Appellants. Citing the decision of this Court in
Krishna Chawla v. State of UP,1 he emphasised upon the duty of the
Trial Magistrate to nip frivolous prosecution in the bud before it
reaches the trial stage by discharging the accused in fit cases.
6. Contrarily, Mr. Narender Hooda, Learned Senior Counsel
representing Respondent No. 2, strongly refuted the allegations
levelled by the Appellants. He strenuously urged that Respondent No.
2 was not present in India during the period from 13.07.2008 to
17.11.2009, when the alleged passport application with his forged
signatures was submitted, to procure the minor child’s passport. He
further argued that the Trial Magistrate has unequivocally observed
that the Passport Officer (Accused No. 4), who deliberately withheld
the original passport application, was an accomplice in the offence of
the destruction of evidence. Additionally, Mr. Hooda objected to
discarding the Truth Lab report at the stage of deciding the discharge
application on the premise that the report of the State FSL was
1 (2021) 5 SCC 435, para 23.
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ambiguous and that the veracity of the private lab report could be
ascertained only at the time of trial.
7. In addition to the full insight of the controversy, as highlighted
by the learned counsel for the parties, we have also meticulously
perused the chargesheets and other documents brought on record by
them.
C. ISSUES FOR CONSIDERATION
8. The foremost question that falls for consideration before us is
whether a prima facie case, to subject the Appellants to the agony of
trial, has been made out. In furtherance of this question, the following
issues emerge for our further consideration:
(i) Whether the actions of the Appellants prima facie constitute the
offence of cheating under Section 420 IPC?
(ii) Whether there has been a prima facie case made out for forgery
under Sections 468 and 471 IPC?
(iii) Whether there has been a violation of Section 12(b) of the
Passports Act, 1967?
D. ANALYSIS
9. In the present case, charges have been brought against the
Appellants for offences punishable under Sections 420, 468, 471, 120
B, 201, read with Section 34 IPC, and Section 12(b) of the Passports
Act, 1967. In this context, it is paramount to delve into the ingredients
of ‘forgery’ and ‘cheating’ required to be prima facie established against
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the Appellants, at the very threshold. We are conscious of the fact thatsuch an evaluation would have to proceed on the premise that the
material gathered by the investigating agency is not to be discarded or
disbelieved at this stage.
The offence of cheating under Section 420 IPC:
10. Section 420 IPC provides that whoever cheats and thereby
dishonestly induces the person deceived to deliver any property to any
person, or to make, alter or destroy, the whole or any part of valuable
security, or anything, which is signed or sealed, and which is capable
of being converted into a valuable security, shall be liable to be
punished for a term which may extend to seven years and shall also
be liable to fine. Further, Section 415 IPC distinctly defines the term
‘cheating’. The provision elucidates that an act marked by fraudulent
or dishonest intentions will be categorised as ‘cheating’ if it is
intended to induce the person so deceived to deliver any property to
any person, or to consent that any person shall retain any property,
causing damage or harm to that person.
11. It is thus paramount that in order to attract the provisions of
Section 420 IPC, the prosecution has to not only prove that the
accused has cheated someone but also that by doing so, he has
dishonestly induced the person who is cheated to deliver property.
There are, thus, three components of this offence, i.e., (i) the deception
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of any person, (ii) fraudulently or dishonestly inducing that person to
deliver any property to any person, and (iii) mens rea or dishonest
intention of the accused at the time of making the inducement. There
is no gainsaid that for the offence of cheating, fraudulent and
dishonest intention must exist from the inception when the promise or
representation was made.
12. It is well known that every deceitful act is not unlawful, just as
not every unlawful act is deceitful. 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. It must also be understood that a
statement of fact is deemed ‘deceitful’ when it is false, and is
knowingly or recklessly made with the intent that it shall be acted
upon by another person, resulting in damage or loss. 2 ‘Cheating’
therefore, generally involves a preceding deceitful act that dishonestly
induces a person to deliver any property or any part of a valuable
security, prompting the induced person to undertake the said act,
which they would not have done but for the inducement.
13. The term ‘property’ employed in Section 420 IPC has a well
defined connotation. Every species of valuable right or interest that is
subject to ownership and has an exchangeable value – is ordinarily
understood as ‘property’. It also describes one’s exclusive right to
possess, use and dispose of a thing. The IPC itself defines the term
2 P. Ramanatha Aiyar, Advanced Law Lexicon, 6th Edition, Vol. 1, pg. 903.
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‘moveable property’ as, “intended to include corporeal property of
every description, except land and things attached to the earth
or permanently fastened to anything which is attached to the
earth.” Whereas immoveable property is generally understood to
mean land, benefits arising out of land and things attached or
permanently fastened to the earth.
14. Having fully addressed the contours of the offence of ‘cheating’,
let us now advert to the facts of the instant case to appreciate whether
the allegations made by Respondent No. 2, are sufficient to prima facie
establish that: (i) the Appellants have deceived Respondent No. 2; (ii)
Respondent No. 2 was induced with dishonest intentions; (iii) such
inducement was for the delivery of any property or valuable security;
and (iv) as a result of such an act, Respondent No. 2 has suffered
some damage or injury.
15. Each of these ingredients need to be analysed to ascertain
whether Respondent No. 2 has made allegations in his complaint to
substantiate points (i) to (iv) above. Additionally, it would also aid in
determining whether the original or supplementary chargesheet
addresses any of these ingredients.
16. The crux of Respondent No. 2’s allegations is that the Appellants
purportedly forged his signature on the passport application
submitted to obtain the minor child’s passport. Assuming the
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allegation to be accurate, it would undoubtedly constitute an unlawful
act. However, as set out earlier, it is crucial to underscore that not
every unlawful act automatically qualifies as ‘deceitful’. In the peculiar
facts and circumstances of this case, the Appellant – wife seems to
have breached the notion of mutual marital trust and unauthorizedly
projected Respondent No. 2’s consent in obtaining the passport for
their minor child. It, however, remains a question as to how such an
act can be labelled as ‘deceitful’. The motivations prompting either of
the Appellants to procure a passport for the minor child were not
rooted in deceit. Furthermore, the grant of passport to the minor child
did not confer any benefit upon the Appellantwife, nor did it result in
any loss or damage to Respondent No. 2. In the same vein, Appellant
No. 2, being the father of the Appellant – wife and assisting in securing
the passport for the chid, derived no direct or indirect benefit from this
action.
17. In this context, the critical inquiry arises: how does the act of
forging signatures on the passport application, aimed at obtaining the
minor child’s passport, amount to inducing Respondent No. 2 to
relinquish any property or valuable security? Examining the situation,
it becomes apparent that the aforementioned act does not entail
inducement leading to the parting of any property by Respondent No.
2. The nature of the property which can be claimed to have been
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relinquished or the tangible loss, damage, or injury, if any, suffered by
Respondent No. 2 are not visible at all. The unequivocal response to
these queries is clearly in the negative.
18. Respondent No. 2, the biological father and natural guardian of
the minor child, is positioned as such in relation to the grant of a
passport to his son. This grant can be best characterised as the minor
child’s acquisition of property. Since the gain by the minor child is not
at the cost of any loss, damage or injury to Respondent No. 2, both the
fundamental elements of ‘deceit’ and ‘damage or injury’, requisite for
constituting the offence of cheating are conspicuously absent in this
factual scenario.
19. Conversely, can the Appellant – wife, being the natural mother of
the child and a natural guardian, be accused of acting `dishonestly’
when applying for the passport of her minor child? A passport, is an
authorised instrument which enables a person to travel outside the
country of his origin. In this case, the passport was admittedly issued
in favour of the minor child. Whether it was stolen by Respondent No.
2 or misplaced, is wholly immaterial to the present discussion. The
grant of passport to the minor child is nothing but a right conferred
upon him by statute. The passport is meant to facilitate him to
accompany his mother to London and stay with his father. However,
there is not even a whisper of allegation or suggestion that the
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passport was obtained to the detriment of the child’s wellbeing. The
underlying intent of obtaining the passport was, ironically, essential
for the Appellant – wife and minor child to live together with
Respondent No. 2, on whose instructions the passport was statedly
obtained. Conversely, it is the actions of Respondent No. 2 that have
seemingly deprived the minor child of his right to seek the care and
company of his father, as the passport was allegedly taken away by
Respondent No. 2 in a clandestine manner.
20. The background of this case and the chronology of events
squarely indicate that it is the touchstone of a marital dispute. The
insinuations made by Respondent No. 2, even if they possess an iota
of truth, have miserably failed to prima facie establish the elements of
‘cheating’ and thus, the accusation made against the Appellants under
Section 420 IPC must fall flat.
The offence of forgery under Sections 468 and 471 IPC:
21. The offence of ‘forgery’ under Section 468 IPC postulates that
whoever commits forgery, intending that the document or electronic
document forged, shall be used for the purpose of cheating, shall be
punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine. Whereas
Section 471 IPC states that whoever fraudulently or dishonestly uses
as genuine any documents which he knows or has reason to believe it
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to be a forged document, shall be punished in the same manner as if
he had forged such document.
22. There are two primary components that need to be fulfilled in
order to establish the offence of ‘forgery’, namely: (i) that the accused
has fabricated an instrument; and (ii) it was done with the intention
that the forged document would be used for the purpose of cheating.
Simply put, the offence of forgery requires the preparation of a false
document with the dishonest intention of causing damage or injury. 3
23. The offences of ‘forgery’ and ‘cheating’ intersect and converge, as
the act of forgery is committed with the intent to deceive or cheat an
individual. Having extensively addressed the aspect of dishonest intent
in the context of ‘cheating’ under Section 420 IPC, it stands
established that no dishonest intent can be made out against the
Appellants. Our focus therefore will now be confined, for the sake of
brevity, to the first element, i.e., the preparation of a false document.
The determination of whether the Appellants prepared a false
document, by forging Respondent No. 2’s signature, however, cannot
be even prima facie ascertained at this juncture. Considering the
primary ingredient of dishonest intention itself could not be
established against the Appellants, the offence of forgery too, has no
legs to stand. It is also significant to highlight that the proceedings as
against the concerned Passport Officer, who was implicated as
3 Sushil Suri v. Central Bureau of Investigation, (2011) 5 SCC 708, para 26.
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Accused No. 4, already stand quashed. In such like situation and
coupled with the nature of allegations, we are unable to appreciate as
to why the Appellants be subjected to the ordeal of trial.
24. That apart, there are glaring procedural irregularities that have
been overlooked by the Trial Magistrate, which warrants examination.
It is extremely important to delve into these improprieties since the
supplementary chargesheet filed by the investigating authority
included the offence of ‘forgery’ under Sections 468 and 471 IPC.
Questions overlooked by the lower courts:
25. As previously noted, the Appellants stand accused of forging the
signatures of Respondent No. 2 on the passport application of the
minor child. The investigating agency initially found insufficient
evidence to support charges under Sections 468 and 471 IPC.
Accordingly, no chargesheet was filed under these provisions.
However, in compliance with the Trial Magistrate’s order dated
24.06.2015, a supplementary chargesheet was submitted under
Sections 468, 471 and 201 IPC and Section 12(b) of the Passports Act,
1967.
26. It is a matter of record that in the course of ‘further
investigation’, no new material was unearthed by the investigating
agency. Instead, the supplementary chargesheet relies upon the Truth
Lab report dated 15.07.2013, obtained by Respondent No. 2, which
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was already available when the original chargesheet was filed. The
term ‘further investigation’ stipulated in Section 173(8) CrPC obligates
the officerincharge of the concerned police station to ‘obtain further
evidence, oral or documentary’, and only then forward a
supplementary report regarding such evidence, in the prescribed form.
27. The provision for submitting a supplementary report infers that
fresh oral or documentary evidence should be obtained rather than re
evaluating or reassessing the material already collected and
considered by the investigating agency while submitting the initial
police report, known as the chargesheet under Section 173(2) CrPC. 4
In the absence of any new evidence found to substantiate the
conclusions drawn by the investigating officer in the supplementary
report, a Judicial Magistrate is not compelled to take cognizance, as
such a report lacks investigative rigour and fails to satisfy the
requisites of Section 173(8) CrPC. What becomes apparent from the
facts on record of this case is that the investigating agency acted
mechanically, in purported compliance with the Trial Magistrate’s
order dated 24.06.2015.
28. Regrettably, the Trial Magistrate, while directing further
investigation, overlooked the significant aspect that the offences
imputed upon the Appellants fall within the ambit of Chapter XVII,
‘Of Offences Against Property’, and Chapter XVIII, ‘Of Offences
4 Vinay Tyagi v. Irshad Ali and others, (2013) 5 SCC 762, para 22.
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Relating to Documents and to Property Marks’ of the IPC. All the
offences delineated or illustrated under these two chapters
predominantly pertain to commercial or property disputes arising from
dishonest, deceitful and fraudulent transactions, wherein an
individual is induced to part with their property or valuable security,
leading to subsequent injury or damage. These offences typically
diverge from the customary realm of matrimonial disputes, which
constitute the underlying cause in this instance.
29. The Trial Magistrate, prior to entertaining the application filed by
Respondent No. 2, should have applied his mind and posed certain
queries in order to find out as to: (i) Why does Respondent No. 2 want
to deprive his minor child of a passport?; (ii) Is it the case that he did
not want his minor child to join his company in London?; (iii) How has
Respondent No. 2 secured the maintenance, education and future
prospects of the minor child?; (iv) Does the minor child have a civil
right to hold a passport even if one of his parents does not accord
consent?; (v) Can the minor child be granted a passport with the
consent of one parent under whose care and custody he is?; (vi) What
is the tangible loss, injury or damage suffered by Respondent No. 2
due to procurement of a passport by his minor son? Had the Trial
Magistrate taken the pains to confront Respondent No. 2 with these
questions, we have no reason to doubt that the vexatious persecution
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faced by the Appellants, could not at least be attributed to a judicial
order.
30. We also fail to understand the reliability of the material based on
which the investigating agency or the Trial Magistrate could form a
prima facie opinion concerning the allegation of forgery of signatures of
Respondent No. 2. As observed earlier, the State FSL report does not
substantiate these allegations. In our opinion, 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
Respondent No. 2 has not produced any other substantive proof, nor
has the investigating agency obtained any such material in compliance
with the Trial Magistrate’s order for further investigation. The basis on
which the Trial Magistrate formed a prima facie opinion, in the
absence of such supporting evidence is, therefore, beyond our
comprehension.
31. The Trial Magistrate and the High Court unfortunately failed to
appreciate that the genesis of the present controversy lies in a marital
dispute. Respondent No. 2 is alleged to have abandoned the Appellant
– wife and the minor child, even during the period when the Appellant
– wife was temporarily residing with him in London. The timeline in
this case is noteworthy: immediately after the Appellant – wife filed
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Crime No. 68 / 2010 against Respondent No. 2 on 08.04.2010,
invoking Sections 346, 498A, 506, and 34 IPC, the countercomplaint
by Respondent No. 2 followed on 13.05.2010. Further, the passport for
the minor child was issued sometime in 2009. The question that
naturally arises is whether it is a mere coincidence that Respondent
No. 2 chose to make his complaint only after an FIR had been lodged
against him.
32. On the one hand, there is no indication whatsoever that
Appellant No. 1 ever endeavoured to deceive or induce Respondent No.
2 into parting with his movable or immovable property or valuable
security, either for her benefit or that of the minor child. While on the
other hand, the law imposes an obligation upon Respondent No. 2 to
provide adequate maintenance to his wife and the minor child. The
complaint lodged by Respondent No. 2 on 13.05.2010, while
unleashing accusations of forgery and fabrication, is conveniently
silent on what measures he has undertaken for his minor child’s
welfare.
33. In light of these circumstances, the Trial Magistrate should have
approached the complaint with due care and circumspection,
recognising that the allegations do not pertain to offences against
property or documents related to property marks. Instead of wielding
judicial authority against the Appellants, the Trial Magistrate should
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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.
34. The sum and substance of the above discussion is that the
elementary ingredients of ‘cheating’ and ‘forgery’ are conspicuously
missing. Thus, the continuation of the criminal proceedings against
the Appellants is nothing but an abuse of the process of law.
In the context of Section 12(b) of the Passports Act, 1967:
35. In addition to the abovementioned provisions of the IPC, the
Appellants have also been accused of committing an offence under
Section 12(b) of the Passports Act, 1967. Section 12(b) categorically
states that, whoever knowingly furnishes any false information or
suppresses any material information, with a view to obtaining a
passport or travel document under this Act or without lawful
authority, alters or attempts to alter or causes to alter the entries
made in a passport or travel document, shall be punishable with
imprisonment for a term which may extend to two years or with fine
which may extend to five thousand rupees or with both.
36. As discernible from the language of the provision, what must be
established is that the accused knowingly furnished false information
or suppressed material information with the intent of obtaining a
passport or travel document. In the present case, it is crucial to
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consider that the State FSL report explicitly stated that the alleged
forgery of Respondent No. 2’s signatures on the passport application
was inconclusive. Moreover, the cognizance of such like offence can be
taken only at the instance of the Prescribed Authority. No complaint to
that effect has been disclosed against the Appellants. This Court,
therefore, will exercise caution before invoking such severe offences
and penalties solely on the basis of conjectures and surmises.
The conduct exhibited by Respondent No. 2:
37. Having scrutinised the elements of cheating and forgery, it is
also imperative to consider the conduct of Respondent No. 2 since the
inception. Firstly, following the solemnisation of the marriage between
the concerned parties, the Appellant – wife purportedly endured both
physical and mental torture and was further not extended any support
by Respondent No. 2 and his family members even after the birth of
the minor child. Secondly, the original passport of the minor child was
presumed to have been issued with the consent and support of
Respondent No. 2. He allegedly even sponsored the travel of his wife
and minor son through his brotherinlaw for visa purposes, who in
his sponsorship letter explicitly cited the passport number of the
minor child. Thirdly, Respondent No. 2 chose to lodge the Concerned
FIR as a counterblast to the complaint filed by the Appellant – wife in
Crime No. 68/2010 in spite of being fully aware of the issuance of the
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minor child’s passport. Thus, the Appellants were unnecessarily
implicated and dragged into criminal proceedings, thereby causing
undue hardship to them. These instances shed light on Respondent
No. 2’s conduct preceding the initiation of the present proceedings and
provide insight into his motivations for instigating the same.
38. It is undeniable that despite the evident discord between the
Appellants and Respondent No. 2, resulting in numerous complaints
and legal proceedings, 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.5 The conduct exhibited by Respondent
No. 2 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.6
E. CONCLUSION AND DIRECTIONS
39. Consequently, the appeal is allowed; the impugned judgment of
the High Court dated 18.02.2021, and that of the Trial Magistrate
dated 15.03.2018, are hereby set aside. As a sequel thereto, the FIR
No. 141 / 2010 registered at Police Station Adugodi, Bengaluru under
Sections 420, 468, 471 read with Section 34 IPC, lodged by
5 Maneka Gandhi v. Union of India and another (1978) 1 SCC 248, paras 76, 8085.
6 K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1, paras 376379.
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Respondent No. 2 against the Appellants and all the proceedings
arising therefrom are hereby quashed.
40. Respondent No. 2 is liable to pay the cost of Rs. 1,00,000/ to
Appellant No. 1. Ordered accordingly, Respondent No. 2 shall pay the
costs within six weeks, failing which the Trial Magistrate is directed to
initiate coercive measures for recovery thereof.
….…………………….., J.
[SURYA KANT]
…………………………., J.
[DIPANKAR DATTA]
NEW DELHI;
DATED: 22012024
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