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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CRM-M-9090 of 2015 -3-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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CRM-M-9090 of 2015 -4-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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CRM-M-9090 of 2015 -6-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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CRM-M-9090 of 2015 -7-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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CRM-M-9090 of 2015 -8-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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CRM-M-9090 of 2015 -9-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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CRM-M-9090 of 2015 -11-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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CRM-M-9090 of 2015 -19-
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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CRM-M-9090 of 2015 -20-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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CRM-M-9090 of 2015 -21-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 by22 of 25
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CRM-M-9090 of 2015 -23-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 it23 of 25
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CRM-M-9090 of 2015 -24-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 a24 of 25
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CRM-M-9090 of 2015 -25-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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