The Karnataka High Court has ruled that an agent of a defendant cannot sustain a petition, whether under Section 226 or 227 of the Constitution of India, read together with Section 482 of the Cr .PC or Criminal Petition under Section 482 Cr.PC
A single bench of judges of Justice M Nagaprasanna made the observation while dismissing a motion filed by a certain Samantha Christina Delfina Willis and others residing in London and had filed a motion to quash a complaint filed by her husband.
The bench said “I find that the present motion filed by the accused’s agent, without seeking any leave of this Court, and without even saying in the motion that he is personally acquainted with the facts of the case, the motion in brief filed under Sections 226 and 227 of the Constitution of India read with Section 482 of the Cr.PC is per se not admissible, as the accused cannot be represented by an attorney and hence maintain the query in question.”
The court also imposed a cost of Rs 100,000 on the claimants, to be filed with the High Court Legal Services Authority, within four weeks.
The Applicant got married to the Complainant Husband Syed Ali Hindustani through a website on June 6, 2021. It is alleged that from June 12, 2021, the Wife was tortured by the Husband/5th Defendant just five days after marriage. On July 11, 2021, the wife fled to her ancestral home in Kolkata. On July 17, 2021, the Complainant and her parents traveled to Kolkata to persuade her to return to Bangalore. Not acceding to the request, the two petitioners flew to London, United Kingdom. On November 14, 2021, the petitioners returned to Calcutta to seek the annulment of the marriage. By then, the respondent/husband had registered the complaint with Bangalore Police on 11 November 2021.
It was alleged in the complaint that after the wedding, the wife took all of her mother’s jewelry stating that she needed it for a photo shoot as she liked ethnic Indian jewelry and did not return it. Another allegation is that an amount of Rs 7.5 crore was transferred to the 1st Claimant’s account as she tricked the 5th Defendant into disbursing the money on the grounds that a property is purchased in their common names. The plaintiff also alleges that the applicants were not even Muslims and pretended to be Muslims when in fact they were Christians.
On the said complaint, the police registered a file under articles 406, 419, 420, 380, 384, 389, 506 read with article 34 of the CPI.
Arguments of the applicants.
Lawyer Ajesh Kumar for the plaintiffs argued that a pure matrimonial dispute is sought to color a crime and that the dispute is purely civil in nature. The allegations made in the complaint, even if believed to be true, would not constitute an offense against the petitioners. The allegation against the Petitioner that they took away the jewelry belonging to the Complainant and money was transferred from the Complainant’s account to the 1st Petitioner’s account. These are for the duration of the marriage and therefore no criminality can be attached to any of the allegations made in the complaint.
Moreover, there is no embezzlement because the property is registered in the names of the 1st petitioner and the plaintiff. That none of the ingredients of Sections 406 and 420 of the IPC can even be done in the present case because there is no incentive for the purchase of property by the 1st petitioner on the plaintiff and his dishonest misappropriation . He further submits that there is no incentive for the applicant to part with any sum of money with dishonest intent and, therefore, to seek the annulment of the proceedings.
Lead Counsel Vivek Reddy, representing the 5th Defendant, rebutted the submissions to assert that the motion for writ thus filed is not even maintainable. Although this is a written petition invoking Sections 226 and 227 of the Constitution of India read together with Section 482. of the Cr.PC, it is not admissible as it is filed by a agent and not by the applicants. He would submit that if the petition itself is inadmissible, none of the grounds given in the petition can be considered, as it acts as a threshold preventing petitioners from making any of the claims.
Furthermore, notwithstanding this, on the merits of the case, the learned lawyer further submits that the 1st applicant enticed or incited the plaintiff to part with all the jewelery belonging to his mother under the pretext of a photo shoot and that all the jewels were given to the 1st petitioner who certainly did not return the same but transported it to the United Kingdom. Similarly, the 1st petitioner instigated the plaintiff to part with Rs.7.5 crores sitting in UK allegedly for payment of buying an apartment.
The petitioners were also found guilty of suppression of facts while seeking an interim order from the Court and requested the dismissal of the petition on the above grounds.
Findings of the Court
Going through the records, the bench observed, “The power of attorney attached to the petition is executed in Bangalore, but signed by the executors before the notary in London. There is no claim in the entire motion that said Power of Attorney Holder is aware of the facts of the case. There is no claim to the effect that the proxy holder has full knowledge of what is deposited and of the reason for the presentation of the request by the said proxy holder. Notwithstanding the fact that it is filed invoking the jurisdiction by writ of this Court as an amalgam with section 482 of the Cr.PC, the motion in writ would not become admissible.”
The bench then referred to the judgment of the Delhi High Court in Amrinder Singh V. State Of Nct Of Delhi, where it was held that a defendant cannot resort to a third party, such as a agent, to represent him in criminal proceedings.
He then observed, “On a merger of the judgments thus rendered by the Constitutional Courts, what can be unquestionably concluded is that the holder of a power of attorney of an accused cannot maintain a request whether under Article 226 or 227 of the Constitution of India read with Section 482 Cr.PC or Penal Petition under Section 482 Cr.PC“
In terms of de facto suppression, the applicant was arrested and then released on bail. The bench noted that there was no murmuring about the facts and events reported above which were suppressed by the petitioners when filing this motion.
It said, “Therefore, there is no doubt that the petitioners are guilty of approaching this Court with unclean hands and such petitions should be dismissed by the imposition of exemplary costs.”
He added “If there is no candid disclosure of relevant and material facts or if the petitioners are guilty of misleading the Court, the petition must be dismissed at the threshold without regard to the merits of the claim.”
Accordingly, he dismissed the motion.
Case Title: SAMANTHA CHRISTINA DELFINA WILLIS & ANR v KARNATAKA STATE et al
Case No: APPLICATION NO 24602 OF 2021
Reference: 2022 LiveLaw (Kar) 199.
Order date: 01ST DAY OF JUNE 2022
Appearance: lawyer AJESH KUMAR S for the petitioners; HCGP.KPYASHODHA, FOR R1, R2 AND R3; Senior Counsel VIVEK REDDY, Counsel A/W KGKAMATH, for R5