Shailender Kumar JaIn Vs. Union of India (Uoi) and anr.

Shailender Kumar Jain vs Union of India (Uoi) and anr.

Type Court Judgment Court Delhi Decided Nov 24, 2003

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Citation: sooperkanoon.com/706114
Court: Delhi High Court
Judge: S.K. Mahajan, J.
Decided On: Nov 24, 2003
Case Number: C.W.P. No. 4536 of 2003
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

- DIVORCE BY MUTUAL CONSENT PERSONAL PRESENCE OF PARTIES EXEMPTED POWER OF ATTORNEY TO DISSOLVE THE MARRIAGE The special power of attorney in favour of one Mr. Lal Babu Tiwari was executed by the petitioner (husband) to appear before the Court and testify about the contents of the petition. The petitioner has ...

Key legal issue: Criminal
Acts & sections: Constitution of India - Article 226; Passport Act, 1957 - Sections 10(3); Indian Penal Code (IPC), 1860 - Sections 306 and 498A

Parties & Advocates

Appellant / Petitioner

Shailender Kumar Jain

Advocate V.K. Makhija, Sr. Adv.,; P.R. Thakur and; R.K. Saini, A

Respondent

Union of India (Uoi) and anr.

Advocate S.K. Mittal, Adv.

Legal References

Acts: Constitution of India - Article 226; Passport Act, 1957 - Sections 10(3); Indian Penal Code (IPC), 1860 - Sections 306 and 498A
Reported In: 110(2004)DLT510

Excerpt

.....they are married, and are able to produce proof of the marriage and that they have been living separately and have not been able to live together for the prescribed period, then there can be no reason as to why the court should not record its satisfaction as envisaged under section 13-b(2) of hindu marriage act, despite the fact that parties had not appeared in person and pass a decree for divorce.[para 6] where the parties are living far away from the jurisdiction of the court competent to dissolve the marriage, the parties after filing their affidavits can appoint attorneys to act on their behalf. attorney is competent to act on behalf of the principal on the basis of power of attorney executed by the principal. the courts have been allowing attorneys to file the petition, to withdraw the petition, to carry on proceedings in the court on behalf of their principal in all other cases. the attorney can also act in matrimonial cases as per instructions of their principle. the court can take necessary precautions to prevent frauds being perpetuated on it but unless the court smells some kind of fraud being played with it, the court should normally recognize the act of the attorneys. i therefore allow this petition. the order of the trial court insisting on the personal appearance of the parties is set aside.[para 8] - 1. the petitioner has filed this petition to challenge the show-cause notice dated 13.7.2003 issued by the consulate general of india, dubai calling upon the petitioner to show cause why his passport should not be revoked under section 10(3)(h) of the passport act, 1957. the only ground taken to challenge the notice is that on the date of issue of show-cause notice, the conditions precedent for revoking the passport under section 10(3)(h) of the act were not satisfied and consequently show cause could not be issued by the consulate general of india, dubai. though these pleas have been taken in the counter affidavit as well as the documents filed..........the documents filed subsequently by the respondents, however, for disposal of the present writ petition they are not relevant inasmuch the passport could be revoked or impounded on the grounds as contained in section 10(3)(h) or (e) of the passport act. under section 10(3)(e) of the act, if any proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before the criminal court in india or if it is brought to the notice of the passport authority that warrants or summons for the appearance; or a warrant for the arrest of the holder of the passport or travel documents has been issued by the court under any law for the time being in force or if an order prohibiting the departure from india of the holder of the passport or travel document has been made by any such court and the passport authority is satisfied that the warrant or summon has been so issued or an order has been made, it may impound or cause to be impounded or revoke the passport or travel document. nothing has been shown to the court that before 19.7.2003, either any notice or summons or warrant for the appearance of the petitioner were issued by a court of competent jurisdiction. it is no doubt true that a case under sections 498a/306 of the indian penal code is registered against the petitioner but cognisance of the same can at best be said to have been taken by the court when it issued the non-bailable warrant on 19.7.2003 and not prior thereto. prima facie it appears to the court that before 19.7.2003 neither cognisance was taken by the court of the offence alleged to have been committed by the petitioner nor any notice or warrant or summon for his appearance was issued by the court and, thereforee, there was no occasion for the passport authority to issue show cause notice on 13.7.2003. may be after issue of warrants on 19.7.2003 the respondents had a right to issue show-cause notice on which i do not want to make any comment, but.....

Full Judgment

ORDER

S.K. Mahajan, J.

CWP No. 4536/2003:

Rule.

1. The petitioner has filed this petition to challenge the show-cause notice dated 13.7.2003 issued by the Consulate General of India, Dubai calling upon the petitioner to show cause why his passport should not be revoked under Section 10(3)(h) of the Passport Act, 1957. The only ground taken to challenge the notice is that on the date of issue of show-cause notice, the conditions precedent for revoking the passport under Section 10(3)(h) of the Act were not satisfied and consequently show cause could not be issued by the Consulate General of India, Dubai.

2. The contention of learned Counsel for the respondent that not only that non-bailable warrants had been issued for the arrest of the petitioner in a case registered under Sections 498A/306 of the Indian Penal Code but the petitioner had also impersonated in Court to get stay of execution of the non-bailable warrants. Though these pleas have been taken in the counter affidavit as well as the documents filed subsequently by the respondents, however, for disposal of the present writ petition they are not relevant inasmuch the passport could be revoked or impounded on the grounds as contained in Section 10(3)(h) or (e) of the Passport Act. Under Section 10(3)(e) of the Act, if any proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before the criminal Court in India or if it is brought to the notice of the passport authority that warrants or summons for the appearance; or a warrant for the arrest of the holder of the passport or travel documents has been issued by the Court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or travel document has been made by any such Court and the passport authority is satisfied that the warrant or summon has been so issued or an order has been made, it may impound or cause to be impounded or revoke the passport or travel document. Nothing has been shown to the Court that before 19.7.2003, either any notice or summons or warrant for the appearance of the petitioner were issued by a Court of competent jurisdiction. It is no doubt true that a case under Sections 498A/306 of the Indian Penal Code is registered against the petitioner but cognisance of the same can at best be said to have been taken by the Court when it issued the non-bailable warrant on 19.7.2003 and not prior thereto. Prima facie it appears to the Court that before 19.7.2003 neither cognisance was taken by the Court of the offence alleged to have been committed by the petitioner nor any notice or warrant or summon for his appearance was issued by the Court and, thereforee, there was no occasion for the passport authority to issue show cause notice on 13.7.2003. May be after issue of warrants on 19.7.2003 the respondents had a right to issue show-cause notice on which I do not want to make any comment, but as on 13.7.2003, notice in question could not be issued by the respondents as no case was pending against the petitioner in Court as on that date.

3. I, accordingly, make the Rule absolute and quash the notice dated 13.7.2003 and consequential action, if any, taken by the respondents, however, the respondents will be at liberty to take action against the petitioner under the provisions of the Passport Act on the grounds as have been alleged by the respondents in their counter affidavit or on the ground that the petitioner had impersonated to get stay of the warrants or any other grounds, as may be permissible in law to the respondents.

Copy of the order be given dusty to learned Counsel for the parties.

Same Court & Year Delhi · 2003 Same Parties Shailender Kumar Jain vs Union of India (Uoi) and anr. Same Subject Criminal Same Judge S.K. Mahajan, J. Acts & Sections Constitution of India - Article 226; Passport Act, 1957 - Sec...

Criminal