Ashok Kumar Tyagi Vs. State and Another - Court Judgment

Excerpt:
penal code, 1860 - section 500--defamation--not named in fir--no prospect of conviction--no justification for charging petitioner--allowing criminal proceeding to continue--abuse of the process of law--revision allowed. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. orderm.s.a. siddiqui, j.1. after hearing learned counsel for the parties, i propose to dispose of the revision at the stage of admission itself. 2. briefly stated, the facts giving rise to this revision is that on 6.8.1995 the petitioner lodged a report at the police station nand nagri regarding theft of his gun on the basis of which fir no. 369/95 was registered at the said police station. during investigation of the case, the respondent was repeatedly called at the police station. he, thereforee, moved the court of sessions for grant of anticipatory bail. however, the bail petition was dismissed on the basis of the report of the investigating officer that the respondent was not wanted in any case registered at the police station nand nagri. thereafter, the respondent filed a complaint under section 500 i.p.c. against the petitioner alleging therein that in his report dated 6.8.1995, the petitioner had made a defamatory imputation charging the respondent with having committed theft of his gun and other household goods. on the complaint being filed, process was issued against the petitioner. on 11.1.1997, the learned magistrate framed the following charge against the petitioner under section 500 i.p.c. 'that you on or about 6.8.1995 an imputation to the police of p.s. nand nagri against raj kumar tyagi that he had stolen a gun and other articles from your house which imputation you knowingly or having reason to believe that said imputation would harm the imputation of said raj kumar tyagi thereby committed an offence punishable under section 500 ipc and within my cognizance'.3. learned counsel for the petitioner has strenuously urged that allegations made in the complaint filed by the respondent read along with the fir no. 369/95 lodged by the petitioner do not constitute any offence and the learned magistrate has committed an illegality in framing a charge under section 500 ipc against him. it is undisputed that the fir no. 369/95 is the foundation of the complaint. surprisingly, the said fir, is conspicuous by the absence of any imputation against the respondent. even his name does not find mention in the fir. that being so, there was absolutely no justification for charging the petitioner with the commission of the offence punishable under section 500 ipc. thus there is no prospect of the case ending in conviction and valuable time of the trial court would be wasted for holding the trial only for the purpose of formally completing the procedure to pronounce its conclusion on a future date. in that view of the matter, allowing the criminal proceedings to continue and thereby forcing the petitioner to face the ordeal of trial would be an abuse of the process of law. 4. for the foregoing reasons, the revision is allowed and the impugned charge and the proceedings emanating from the complaint filed by the respondent are quashed. the petitioner's bail bonds are discharged.

Judgment:
ORDER

M.S.A. Siddiqui, J.

1. After hearing learned counsel for the parties, I propose to dispose of the revision at the stage of admission itself.

2. Briefly stated, the facts giving rise to this revision is that on 6.8.1995 the petitioner lodged a report at the Police Station Nand Nagri regarding theft of his gun on the basis of which FIR No. 369/95 was registered at the said Police Station. During investigation of the case, the respondent was repeatedly called at the Police Station. He, thereforee, moved the Court of Sessions for grant of anticipatory bail. However, the bail petition was dismissed on the basis of the report of the Investigating Officer that the respondent was not wanted in any case registered at the Police Station Nand Nagri. Thereafter, the respondent filed a complaint under Section 500 I.P.C. against the petitioner alleging therein that in his report dated 6.8.1995, the petitioner had made a defamatory imputation charging the respondent with having committed theft of his gun and other household goods. On the complaint being filed, process was issued against the petitioner. On 11.1.1997, the learned Magistrate framed the following charge against the petitioner under Section 500 I.P.C.

'That you on or about 6.8.1995 an imputation to the Police of P.S. Nand Nagri against Raj Kumar Tyagi that he had stolen a Gun and other articles from your house which imputation you knowingly or having reason to believe that said imputation would harm the imputation of said Raj Kumar Tyagi thereby committed an offence punishable under Section 500 IPC and within my cognizance'.

3. Learned counsel for the petitioner has strenuously urged that allegations made in the complaint filed by the respondent read along with the FIR No. 369/95 lodged by the petitioner do not constitute any offence and the learned Magistrate has committed an illegality in framing a charge under Section 500 IPC against him. It is undisputed that the FIR No. 369/95 is the foundation of the complaint. Surprisingly, the said FIR, is conspicuous by the absence of any imputation against the respondent. Even his name does not find mention in the FIR. That being so, there was absolutely no justification for charging the petitioner with the commission of the offence punishable under Section 500 IPC. Thus there is no prospect of the case ending in conviction and valuable time of the trial court would be wasted for holding the trial only for the purpose of formally completing the procedure to pronounce its conclusion on a future date. In that view of the matter, allowing the criminal proceedings to continue and thereby forcing the petitioner to face the ordeal of trial would be an abuse of the process of law.

4. For the foregoing reasons, the revision is allowed and the impugned charge and the proceedings emanating from the complaint filed by the respondent are quashed. The petitioner's bail bonds are discharged.