Supreme Court: In an appeal against Karnataka High Court’s decision whereby, the Trial Court’s order dismissing the accused persons’ application under Section 239 of the Code of Criminal Procedure, 1973 (‘CrPC’), seeking discharge from the case under Sections 468, 471, 420, 120-B and 201 read with Section 34 of the IPC and Section 12(b) of the Passports Act, 1967, was upheld, the Division Bench of Surya Kant and Dipankar Datta, JJ. quashed the impugned First Information Report and set aside the Trial Court and High Court’s decision.
Background
The husband (Respondent) and wife (Accused 1) got married in 2007. The Husband was living in United Kingdom and assured his wife that they would live together in London. The wife’s case was that the husband had abandoned her and their son. The wife registered a First Information Report (FIR) against the husband and his family members for offences under Section 346, 498-A and 506, read with Section 34 of the Penal Code, 1860 (‘IPC’). She also alleged that the husband had taken away the minor child’s passport and jewellery items on the pretext of arranging their travel to the UK.
The husband had also lodged an FIR against the wife, alleging that she had forged his signature on the child’s passport application and submitted it to the Regional Passport Office, Bengaluru, at the time when he was in UK. Thus, an FIR was registered under Sections 420, 468 and 471 read with Section 34 of the IPC against the wife and her father.
During the completion of the investigation, the investigation agency filed a chargesheet against the wife, her father and a travel agent for offence under Section 420 read with Section 34 of the IPC.
The Trial Court had dismissed the wife’s application under Section 239 of the CrPC seeking discharge from the case. However, the Trial Court allowed the husband’s prayer for further investigation of the offences under Section 468 and 471 of the IPC. A supplementary chargesheet was filed adding offences under Sections 468, 471, 420, 120-B and 201 read with Section 34 of the IPC and Section 12(b) of the Passports Act, 1967. The report from a private lab found that the signature in question did not match the specimen signature of the husband. The High Court also dismissed the wife and other accused persons’ challenge to the Trial Court’s order, forming the impugned Order.
Decision
(i) Whether the wife’s actions prima facie constitute the offence of cheating under Section 420 of the IPC?
“Every deceitful act is not unlawful, just as not every unlawful act is deceitful.”
The Court said that to attract the provision of Section 420 of the IPC, the prosecution must not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property. The Court culled out three components of the offence of cheating:
-
the deception of any person;
-
fraudulently or dishonestly inducing that person to deliver any property to any person, and;
-
mens rea or dishonest intention of the accused at the time of making the inducement.
The Court noted that the grant of passport to the minor child did not confer any benefit upon the wife or her father, nor did it result in any loss or damage to the husband. The Court also said that the act of forging the signatures on the passport application did not amount to any inducement leading to the parting of any property by the husband. Thus, the Court said that the biological father and natural guardian of the minor child, is positioned in relation to the grant of passport to his son. The Court held that since the gain of the property in terms of passport by the minor child is not at the cost of any loss, damage or injury to the husband, both the elements of ‘deceit’ and ‘damage or injury’, essential for constituting the offence of cheating are absent in the present case.
Whether the wife, being the mother and natural guardian, be accused of acting ‘dishonestly’ when applying for the passport of her minor child?
The Court said that the grant of passport to the minor child is nothing but a right conferred upon him by statute, which was meant to facilitate his travel to London along with his mother, to stay with his father, and it was on his instructions that the passport was obtained. The Court also noted that there was not even a whisper of allegation that the passport was obtained as a detriment to the child’s wellbeing. Thus, the Court said that the husband failed to establish the elements of ‘cheating’ and thus, the accusation against the wife for offence under Section 420 of the IPC fell flat.
(ii) Whether there has been a prima facie case made out for forgery under Sections 468 and 471 IPC?
The Court said that the offences of ‘forgery’ and ‘cheating’ intersect and converge, as the act of forgery is committed with the intent to deceive or cheat an individual. The Court also said that it has been held that the wife had no dishonest intention in applying the child’s passport. Regarding the question of ‘preparation of a false document’, the Court said that since, the primary ingredient of dishonest intention could not be established, the offence of forgery too can’t stand.
Procedural irregularities overlooked by the Trial Court
The Court said that the term ‘further investigation’ under Section 173(8) of the CrPC obligates the officer-in-charge of the police station to ‘obtain further evidence, oral or documentary’, and only then forward a supplementary report regarding such evidence, in the prescribed form. The Court noted that in the present case, no new material was unearthed by the investigating agency during the ‘further investigation’, instead the lab report dated 15-07-2013 was relief upon to add the subsequent charges, which was already available when the original chargesheet was filed.
Further, the Court said that 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) of the CrPC.
Further, the Court opined that a paid report obtained from a private laboratory was an unreliable, unsafe and imprudent form of evidence, unless supported by some other corroborative proof. The Court also said that the Trial Court and the High Court unfortunately failed to note that the genesis of the matter lied in a marital dispute. On noting the circumstances of the matter, the Court said that 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 was both fallible and atrocious.
Conclusion
Hence, the Court held that the continuation of the criminal proceedings against the wife and other accused persons would be an abuse of the process of law, since the elementary ingredients of ‘cheating’ and ‘forgery’ were missing. Therefore, the Court set aside the impugned Judgment of the High Court and the Trial Court. The Court also quashed the impugned FIR against the wife and other accused persons. The Court directed the husband to pay 1 Lakh costs to the wife within a period of six weeks.
[Mariam Fasihuddin v. State, 2024 SCC OnLine SC 58, Decided on 22-01-2024]
Judgment Authored by: Justice Surya Kant
Buy Code of Criminal Procedure, 1973 HERE
Buy Penal Code, 1860 HERE
