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Judgments of Supreme Court of India and High Courts

Sunita Motwani vs Amitabh Sinha on 11 July, 2019

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 11TH DAY OF JULY 2019

BEFORE
THE HON’BLE MR. JUSTICE ALOK ARADHE

WRIT PETITION NO.54568 OF 2018 (GM-RES)

BETWEEN:

1. SUNITA MOTWANI
W/O AMITABH SINHA
AGE: 52 YEARS
C 910 RAJA ARISTOS APTS
DODDA KAMMANAHALLI MAIN ROAD
OFF B.G.ROAD,
BANGALORE – 560 076

2. KARTHICKEYA, AGE 15 YEARS
S/O AMITABH SINHA AND
SUNITA MOTWANI
C 910 RAJA ARISTOS APTS
DODDA KAMMANAHALLI MAIN ROAD
OFF B.G.ROAD,
BANGALORE – 560 076
… PETITIONERS

(BY SMT. SUNITA MOTWANI, PARTY-IN-PERSON)

AND:

1. AMITABH SINHA
S/O LATE M.C.SINHA
AGE: 41 YEARS
179, TIWARIPUR
POST SEWANS TANNERY
ADARSH NAGAR, KANPUR – 208010
UTTAR PRADESH
2

THRU
ADVOCATE PRITHVIRAJ B.N.
F-113, 2ND FLOOR CENTRAL CHAMBERS
2ND MAIN GANDHI NAGAR
BANGALORE – 560 001

2. JOINT SECRETARY (PSP) AND CPO
CPV DIVISION
MINISTRY OF EXTERNAL AFFAIRS
ROOM NO.8, PATIALA HOUSE
TILAK MARG
NEW DELHI – 110 001

3. UNION OF INDIA
THRU THE HON’BLE FOREIGN SECRETARY
MINISTRY OF EXTERNAL AFFAIRS
SOUTH BLOCK,
NEW DELHI – 110 011

4. JOINT SECRETARY
IS-II DIVISION
MINISTRY OF HOME AFFAIRS
FCRA WING, 1ST FLOOR
MAJOR DHYAN CHAND NATIONAL STADIUM
NEAR PRAGATI MAIDAN
NEW DELHI – 110 001

5. JOINT DIRECTOR INVESTIGATION
ENFORCEMENT DIRECTORATE
MINISTRY OF FINANCE
6TH FLOOR, LOK NAYAK BHAVAN
KHAN MARKET,
NEW DELHI – 110 003

6. JOINT DIRECTOR
CBI, INTERPOL COORDINATION WING
PLOT NO.5-B, 6TH FLOOR
A WING, CGO COMPLEX
NEW DELHI – 110 003
… RESPONDENTS

(MR. PRITHVI RAJ B.N., ADV., FOR R1 (ABSENT)
MR. C. SHASHIKANTH, ASG FOR R2 TO R4
MR. P. PRASANNA KUMAR,
SPECIAL PUBLIC PROSECUTOR FOR R6)
—-
3

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE TO R2
AND R3 AND 5 AND 6 THRU R4 DIRECTING THEM TO PROCURE
THE AUTHENTICATED ITR’S OF i5DYNAMICS LLC AND BANK
ACCOUNT DETAILS ASSOCIATED WITH i5DYNAMICS LLC AND
OTHER AUTHENTICATED FINANCIAL DOCUMENTS OF i5DYNAMICS
LLC FROM DEPARTMENT OF REVENUE NORTH CAROLINA USA AND
FROM THE DEPARTMENT OF SECRETARY OF STATE NORTH
CAROLINA USA. [THE DETAILS OF THESE DEPARTMENT HAVE
BEEN ENCLOSED IN PARA 26] IN THE INTEREST OF JUSTICE AND
EQUITY.

THIS WRIT PETITION COMING ON FOR ARGUMENTS THIS
DAY, THE COURT MADE THE FOLLOWING:-

ORDER

Smt.Sunita Motwani, petitioner Party-in-Person.

Mr.C.Shashikanth, learned Assistant Solicitor

General of India for respondent Nos.2 to 4.

Mr.P.Prasanna Kumar, learned Special Public

Prosecutor for respondent No.6.

2. The writ petition is admitted for hearing.

With consent of the learned counsel for the parties, the

same is heard finally.

4

3. In this petition under Articles 226 and 227 of

the Constitution of India, the petitioner inter alia has

prayed for the following directions:

(a) The respondent Nos.2 and 3 and
5 6 through respondent No.4 directing
them to procure the authenticated ITR’s of
i5Dynamic LLC and Bank Account details
associated with i5Dynamics LLC and other
authenticated financial documents of
i5Dynamics LLC from Department of
Revenue North Carolina USA and from the
Department of Secretary of State North
Carolina USA. [The details of these
department have been enclosed in para 26]
in the interest of justice and equity.

(b) The respondent No.2 and
Respondent No.3 through respondent No.4
directing tehm to procure/secure ITR’s of
Amitabh Sinha (respondent No.1) filed in
USA i.e., from Department of Revenue
North Carolina USA from 2007 till date in
the interest of justice and equity.

5

(c) The respondent No.5 and rse
No.6 directing them to get the details of
the other/present company which is active
against the social security no. and against
the visa of respondent No.1 which is being
operated by Amitabh Sinha from India in
the interest of justice and equity.

(d) Pass any other order as deemed
fit under present facts and circumstances.

4. Facts giving rise filing of the petition briefly

stated are that the petitioner No.1 was married with

respondent No.1 on 25.04.2001. Out of the wedlock,

petitioner No.2 was born on 12.02.2003. On

07.03.2007, the petitioner along with respondent No.1

went to USA and thereafter on 23.09.2007, respondent

No.1 was arrested for the acts of Domestic Violence and

Atrocities on the petitioners. It is averred in the writ

petition that petitioners were compelled to leave united

States on 26.09.2007 and were rendered homeless and

penniless. It is also averred that certain cases under the

provisions of Domestic Violence were filed in Delhi in the
6

year 2007. However, the respondent No.1 did not

appear in the aforesaid case. It is further averred that

on google search petitioner found that respondent No.1

owns a software company namely i5Dynamics LLC

registered with Department Of Revenue, North Carolina,

USA on 18.02.2009. The petitioners have also lodged a

case against the respondent No.1 on the basis of which

offence under Section 498A of Indian Penal Code, 1860

has been registered against the respondent No.1. It is

also averred that a look out notice was issued against

respondent No.1 and thereafter he was released on bail.

Admittedly, the proceedings for dissolution of marriage

are pending between the parties before the family court.

In the aforesaid factual background, the petitioner has

approached this court seeking the relieves as quoted

supra.

5. Party-in-person submitted that a treaty has

been executed between the Government of Republic of

India and the Government of United States of America
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on mutual legal assistance in criminal matters under

which respondent Nos.2 to 4 can be directed to issue

letter rogatory to procure the authenticated Income Tax

returns of the company of the respondent No.1 from

2007 till date. Party in person has further submitted

that the aforesaid order is necessary for doing complete

justice and enforcing the fundamental rights of the

petitioners. It is further submitted that the petitioner

has exhausted all the remedies and thereafter has

approached this Court and this Court alone has power to

direct the Ministry of External Affairs to issue letter

rogatory. In support of aforesaid submissions, reliance

has been placed on decision of Supreme Court in

‘STATE OF WEST BENGAL AND OTHERS VS.

COMMITTEE FOR PROTECTION OF DOMESTIC

RIGHTS WEST BENGAL AND OTHERS’, (2010) 3

SCC 571.

6. On the other hand, learned Assistant Solicitor

General of India for respondent Nos.2 to 4 has invited
8

the attention of this Court to the treaty in question and

has submitted that action under the aforesaid treaty can

be taken in relation to criminal matters. It is also

submitted that the prayer made by the petitioners is

outside the scope of the treaty and the police authorities

of Karnataka have not made any request to Ministry of

Home Affairs for seeking any evidence from the USA.

Learned counsel for respondent No.6- Central Bureau of

Investigation submitted that no matter is pending before

respondent No.6 and therefore, central agencies cannot

be directed to secure any documents of any private

individual to a matrimonial litigation. It is further

submitted that the petitioners cannot seek assistance of

Central Bureau of Investigation in securing documents

to prove or disprove a point in matrimonial litigation.

7. I have considered the submissions made by

learned counsel for the parties and have perused the

record. It is well settled in law that a writ of mandamus

is available to secure performance of judicial, statutory
9

and executive duties of a public nature which includes

compelling for bearance as well as compelling action. A

writ of mandamus is issued where legal public duty is

clear, unqualified and specific and at the instance of a

person who establishes that he has a legal right to

enforce performance of a public duty. Such right or duty

may not be constitutional and may founded on statute

or common law but relief by way of mandamus will be

available only when legal right or petitioner and legal

duty of respondent is of public nature.

8. In the backdrop of aforesaid well settled legal

position, the facts of the case on hand may be

examined. The treaty which has been executed

between the Government of Republic of India and the

Government of USA on 17.10.2001 provides that this

treaty shall be solely for mutual legal assistance

between the contracting parties and the provisions of

this treaty shall not give rise to a right on the part of

any private person to obtain, suppress or exclude any
10

evidence or to impede the execution of a request.

Clause 4 of Article 1 reads as under:

This treaty is intended solely for
mutual legal assistance between the
contracting parties. The provisions of this
treaty shall not give rise to a right on the
part of any private person to obtain,
suppress or exclude any evidence, or to
impede the execution of a request.

9. Thus, from perusal of the aforesaid treaty, it

is evident that the aforesaid treaty does not confer any

right on any private person to obtain evidence. Thus,

the relieves sought for by the petitioner is outside the

purview of the treaty. Therefore, the relieves as prayed

for by the petitioner contained in Clause (A) and (B),

which is based on treaty cannot be granted. The

petitioners have no legal right. Even otherwise the

petitioners have failed to establish any legal right,

corresponding legal right in their favour or

corresponding legal obligation on the respondents.

Therefore, the writ of mandamus as prayed for by the
11

petitioners cannot be issued. So far as relief (C) is

concerned, no matter is pending before Central Bureau

of Investigation and no statutory duty is attached to

central agency to help a private litigant in the

matrimonial litigation. In the absence of any statutory

obligation, the respondent No.6 cannot be compelled to

get the details of the company of respondent No.1.

10. Admittedly, the dispute is a matrimonial

dispute and the petitioner wants the aforesaid

information in connection with her claim for

maintenance. Admittedly, the proceedings for

dissolution of marriage are pending before the family

court. Therefore, it will be open for the petitioners to

file an application under Order 11 Rule 12 of the Code of

Civil Procedure, 1908 before the family court where the

proceeding are pending. Needless to state that in case

such an application is field, the family court shall decide

the same expeditiously in accordance with law

preferably within three weeks from the date of filing of
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such an application after affording an opportunity of

hearing to the parties.

With the aforesaid directions, the petition is

disposed of.

Sd/-

JUDGE

SS

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