Preface
It is most significant to note that in a major development we noticed that the Supreme Court in exercise of its criminal appellate jurisdiction while quashing an FIR that was lodged by a husband against his wife accusing her of cheating him by forging his signature to obtain child’s passport in a most learned, laudable, landmark and latest judgment titled Mariam Fasihuddin & Anr vs State by Adugodi Police Station & Anr. in Criminal Appeal No.335/2024 (Arising out of Special Leave to Appeal (Crl.) No. 2877/2021) and cited in Neutral Citation No.: 2024 INSC 49 that was pronounced as recently as on January 22, 2024 has minced just no words to hold that every deceitful act is not unlawful, just as not every unlawful act is deceitful. It must be mentioned here that the Apex Court in this leading judgment was considering an appeal that had been filed against the judgment delivered by the Karnataka High Court by which a criminal revision petition challenging the order of the VI Additional Chief Metropolitan Magistrate was dismissed. It must be noted that the Apex Court after considering the facts of the case and persuing the matter quashed an FIR that had been lodged against a woman and her father by her husband after a marital dispute for allegedly fabricating his signature to obtain passport for their minor son.
We thus see that the top court very rightly allowed a plea that had been filed by Mariam Fasihuddin and her father against the Karnataka High Court’s order with Rs 1 lakh cost on husband as it found merit in it. The Apex Court held that the Trial Magistrate and the High Court unfortunately failed to appreciate that the genesis of the present controversy lies in a marital dispute. It was most commendably held by the top court that the elementary ingredients of ‘cheating’ and ‘forgery’ are conspicuously missing in the case so the continuation of the criminal proceedings before a Bengaluru court against the appellants is nothing but an abuse of the process of law.
Introduction
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Surya Kant for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Dipankar Datta sets the ball in motion by first and foremost putting forth in para 2 that:
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 with FIR No. 141/2010 under Sections 420, 468, 471 read with Section 34 of the Indian Penal Code, 1860 (hereinafter, ‘IPC’) registered at P.S. Adugodi, Bengaluru has been concurrently turned down.
Facts
To put things in perspective, the Bench envisages in para 3 that:
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 sister-in-law. 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 Appellant-wife sought to obtain a passport for the minor child based allegedly 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 brother-in-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 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.
Questions overlooked by the lower court
Do note, the Bench notes in para 25 that:
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.
Be it noted, the Bench notes in para 26 that:
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 was already available when the original chargesheet was filed. The term ‘further investigation’ stipulated in Section 173(8) CrPC obligates the officer-in-charge 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.
It is worth noting that the Bench notes in para 27 that:
The provision for submitting a supplementary report infers that fresh oral or documentary evidence should be obtained rather than reevaluating 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. (Vinay Tyagi v. Irshad Ali and others, (2013) 5 SCC 762, para 22). 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 rigour and fails to satisfy the requisites of Section 173(8) CrPC. What becomes apparent from the facts on records of this case is that the investigating agency acted mechanically in purported compliance with the Trial Magistrate’s order dated 24.06.2015.
While raising most critical and pertinent questions, the Bench stipulates in para 29 that:
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:
- Why does Respondent No.2 want to deprive his minor child of a passport?;
- Is it the case that he did not want his minor child to join his company in London?;
- How has Respondent No.2 secured the maintenance, education, and future prospects of the minor child?;
- Does the minor child have a civil right to hold a passport even if one of his parents does not accord consent?;
- Can the minor child be granted a passport with the consent of one parent under whose care and custody he is?;
- 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 faced by the Appellants could not at least be attributed to a judicial order.
Most forthrightly, the Bench observes in para 30 that:
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 absence of such supporting evidence is beyond our comprehension.
Most significantly, the Bench postulates in para 31 that:
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 Crime No.68/2010 against Respondent No.2 on 08.04.2010, invoking Sections 346, 498A, 506 and 34 IPC, the counter-complaint 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.
It cannot be glossed over that the Bench then points out in para 32 that:
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.
In addition, the Bench points out in para 33 that:
In light of these circumstances, the Trial Magistrate should have approached the complaint with due care and circumspection recognizing 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 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.
Most remarkably and as a corollary, the Bench then mandates in para 34 that, “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.
Conclusion And Directions
To be sure, the Bench directs in para 39 that:
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 Respondent No.2 against the Appellants and all the proceedings arising therefrom are hereby quashed.
Finally, the Bench concludes by directing in para 40 that:
Respondent No.2 is liable to pay the cost of Rs. 100,000/ 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.
In sum, we see that the Apex Court very rightly quashes FIR against wife accused of forging husband’s signature to procure child’s passport. The Apex Court has cited convincing reasons for quashing the same as elaborated hereinabove. Very rightly so! It is also made indubitably clear that every deceitful act is not unlawful and so the wife was rightly acquitted by quashing FIR against her! No denying!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
