The Karnataka High Court has held that a power of attorney holder of an accused cannot maintain a petition be it under Article 226 or 227 of the Constitution of India read with Section 482 of the Cr.P.C. or Criminal Petition under Section 482 Cr.P.C.
A single judge bench of Justice M Nagaprasanna made the observation while dismissing a petition filed by one Samantha Christina Delfina Willis and others who are residing in London and had filed a petition seeking to quash a complaint filed by her husband.
The bench said "I hold that the present petition filed by the power of attorney holder of the accused, without seeking any permission at the hands of this Court, and without even narrating in the petition that he is personally aware of the facts of the case, the writ petition filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C. is per se not maintainable, as the accused cannot be represented by a power of attorney holder and thus, maintain the subject petition."
The court also imposed a cost of Rs.1,00,000 on the petitioners, to be deposited with the High Court Legal Services Authority, within four weeks.
The petitioner 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 respondent barely five days after marriage. On July 11, 2021, the wife fled to her ancestral house at Kolkata. On July 17, 2021, the complainant and his parents travelled to Kolkata to persuade her to come back to Bangalore. Not acceding to the request, both the petitioners flew to London, United Kingdom. On November 14, 2021, the petitioners returned to Kolkata to seek annulment of marriage. By then, respondent/ husband had registered the complaint before the Police at Bangalore on November 11, 2021.
It was alleged in the complaint that wife after marriage had taken all the jewellery of his mother stating that she requires them for a photo shoot as she liked ethnic Indian jewels and had not returned the same. Further allegation is that an amount of Rs.7.5 crores was transferred to the account of the 1st petitioner as on deceit she has induced the 5th respondent to shell out with the money on the ground that a property is being purchased in their joint names. The complainant also alleges that the petitioners were not even Muslims and have posed themselves as Muslims but they were in fact Christians.
On the said complaint, the police registered a case under sections 406, 419, 420, 380, 384, 389, 506 read with Section 34 of the IPC.
Advocate Ajesh Kumar for the petitioners argued that a pure matrimonial dispute is sought to be given a colour of crime and also the dispute is purely civil in nature. The allegations made in the complaint, even if taken to be true, would not make out an offence against the petitioners. The allegation against petitioner that they have taken away the jewels belonging to the complainant and some money has been transferred from the account of the complainant to the account of the 1st petitioner. These are during subsistence of marriage and, therefore, no criminality can be attached to any of the allegations made in the complaint.
Further, there is no misappropriation of any funds as the property is registered in the names of both the 1st petitioner and the complainant. That none of the ingredients of Sections 406 and 420 of the IPC can even be made in the case at hand as there is no inducement for purchase of property by the 1st petitioner on the complainant and its dishonest misappropriation. He would further submit that there is no inducement inducing the complainant to part with any money with a dishonest intention and, therefore, seek annulment of proceedings.
Senior advocate Vivek Reddy representing the 5th respondent, refuted the submissions to contend that the writ petition so filed is not even maintainable. Though it is a writ petition invoking Articles 226 and 227 of the Constitution of India read with Section 482. of the Cr.P.C., it is not maintainable, as it is filed by a power of attorney holder and not by the petitioners. He would submit that if the petition itself is not maintainable, none of the grounds urged in the petition can be looked at, as it operates as a threshold bar upon the petitioners to urge any of the contentions.
Further, notwithstanding this, on merits of the matter, the learned senior counsel would further contend that the 1st petitioner lured or induced the complainant to part with all the jewels belonging to his mother on the pretext of a photo shoot and all the jewelry was handed over to the 1st petitioner who has admittedly not returned the same but carried to United Kingdom. In the same way, the 1st petitioner has induced the complainant to part with Rs.7.5 crores sitting in the United Kingdom allegedly towards the payment of the purchase of an apartment.
It was also said the petitioners were guilty of suppression of facts while seeking an interim order at the hands of this Court and sought dismissal of the petition on the aforesaid grounds.
On going through the records the bench observed, "The power of attorney appended to the petition is executed at Bangalore, but signed by the executants before the Notary at London. There is no averment in the entire petition that the said power of attorney holder is aware of the facts of the case. There being no averment to the effect that the power of attorney holder has full knowledge of what is being filed and the reason for presenting the petition by the said power of attorney holder. Notwithstanding the fact that it is filed invoking writ jurisdiction of this Court as an amalgam to Section 482 of the Cr.P.C., the writ petition would not become maintainable."
The bench then referred to the judgement of the Delhi High Court in the case of Amrinder Singh V. State Of Nct Of Delhi, where it was held that an accused cannot recourse to a third party, such as a Power of Attorney holder, to represent him in criminal proceedings.
It then observed, "On a coalesce of the judgments so rendered by the Constitutional Courts, what can be unmistakably gathered is that the power of attorney holder of an accused cannot maintain a petition be it under Article 226 or 227 of the Constitution of India read with Section 482 of the Cr.P.C. or Criminal Petition under Section 482 Cr.P.C."
As regards suppression of fact, the petitioner was arrested and then released on bail. The bench noted there is no whisper about the afore-narrated facts and events that have been suppressed by the petitioners while filing the present petition.
It said, "Therefore, there can be no doubt that the petitioners are guilty of approaching this Court with unclean hands and such petitions should be thrown to the winds by imposition of exemplary costs."
It added, "If there is no candid disclosure of relevant and material facts or the petitioners are guilty of misleading the Court, the petition is to be dismissed at the threshold without considering the merit of the claim."
Accordingly, it dismissed the petition.
Case title: SAMANTHA CHRISTINA DELFINA WILLIS & ANR v STATE OF KARNATAKA and others
Case No: WRIT PETITION No.24602 OF 2021
Citation: 2022 LiveLaw (Kar) 199.
Date of Order: 01ST DAY OF JUNE, 2022
Appearance: advocate AJESH KUMAR S for petitioners; HCGP.K.P.YASHODHA, FOR R1, R2 AND R3; Senior Advocate VIVEK REDDY, A/W Advocate K.G.KAMATH, for R5