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TMI Blog2022 (6) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... trimony the 1st petitioner and the 5th respondent got married on 06-06-2021. On 09-06-2021 the wife/1st petitioner travels to the matrimonial house at Hyderabad. It is alleged that from 12-06-2021 the wife was tortured by the husband/5th respondent barely five days after marriage. On 11-07-2021 the wife flies to her ancestral house at Kolkata. On 17-07-2021 the complainant and his parents appear to have travelled to Kolkata to persuade the 1st petitioner to come back to Bangalore. Not acceding to the request, both the petitioners flew to London, United Kingdom. On 14-11-2021 the petitioners returned to Kolkata for seeking annulment of marriage. By then, the 5th respondent/husband had registered the complaint before the Police at Bangalore on 11-11-2021. Based on the crime so registered in Crime No. 216 of 2021 for the aforesaid offences, the respondent/police sought to arrest the 1st petitioner. On 19-11-2021 a transit bail was sought and granted to the petitioners by the Court at Kolkata. After the grant of such transit bail, the petitioners come to the City of Bangalore and filed the subject petition on 23-12-2021 seeking annulment of proceedings in Crime No. 216 of 2021. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, would vehemently refute 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. 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 United Kingdom allegedly towards payment of purchase of apartment. The learned senior counsel would submit that the petitioners are guilty of suppression of facts while seeking an in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H v. STATE OF NCT OF DELHI Crl. M.C. 1571 of 2021 decided on 04-01-2022 addresses the very issue as it was argued therein that the petition filed under Article 227 read with Section 482 of the Cr.P.C. was not maintainable. The High Court of Delhi following the judgment of the Apex Court in the case of T.C. MATHAI AND ANOTHER v. THE DISTRICT & SESSIONS JUDGE, THIRUVANANTHAPURAM AIR 1999 SC 1385, has held as follows: "6. It is vehemently argued by the Ld. APP that the present petition under article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure is not maintainable as the same has been filed through S.P.A. holder and the present application and petition are liable to be dismissed. 7. In Amit Ahuja Vs. Gian Parkash Bhambri, MANU/PH/1159/2010 : 2010(3) R.C.R.(Criminal) 586; it has been observed as under:- "9. The plain reading of the ratio of law, laid down, in the aforesaid cases, clearly goes to reveal, that it is only the accused person, against whom, a criminal case, has been registered or a criminal complaint, has been filed, can file a petition, under Section 482 Cr.P.C., in the High Court, for quashing the complaint, the summo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r through counsel. Chapter XVI of the Code empowers the Magistrate to issue summons or warrant for the appearance of the accused. Section 205 of the Code empowers the Magistrate to dispense with "the personal attendance of the accused, and permit him to appear by his pleader" if he sees reasons to do so. Section 273 of the Code speaks of the powers of the court to record evidence in the presence of the pleader of the accused, in cases when personal attendance of the accused is dispensed with. But in no case can the appearance of the accused be made through a power-of-attorney holder. So the contention of the appellant based on the instrument of power of attorney is of no avail in this case." 9. In the instant case as well the petition has been filed through SPA holder which is per se not maintainable. Therefore no permission can be granted to the petitioner to file the present petition bearing No. CRL. M.C. 1571/2021 under article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure seeking quashing of FIR No. 258/2010 and the charge-sheet and all the proceedings arising therefrom including the proceedings initiated against the petitioner u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the trial Courts or any other Court, as required by law but would also put extra burden upon the Courts and it may further cause delay in conclusion of the criminal proceedings, thereby defeating the aim and object of the penal laws." (Emphasis supplied) The High Court of Punjab and Haryana answers the question whether the accused/respondent abroad can file a petition through the power of attorney holder. In the case before the said High Court, the power of attorney holder was the mother. It was argued that the petition was maintainable as the mother of the 1st petitioner was also an accused in the case and she was competent to represent the other accused as she was the power of attorney holder, wherein it is held that if such a practice is permitted, it would become easy for the accused to run away from the country and avoid appearance before the Court thereby resulting in gross delay in the proceedings. 12. The High Court of Kerala in a Judgment rendered in the case of NAVEED AKTHAR SAIT v. STATE OF KERALA 2016 SCC online KER 13587 observes that the power of attorney holder moved the case on behalf of the accused. There was no petition for permission to act on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney holder has not permitted to do so, he cannot cure the defect by appointing an advocate by him. Thus, what comes out is that, in this case, the petitioner has not obtained permission from the court to proceed with the proceeding." All the decisions afore-quoted follow the judgment of the Apex Court in the case of T.C. MATHAI (supra), wherein the Apex Court holds as follows: "15. Section 2 of the Power of Attorney Act cannot override the specific provision of a statute which requires that a particular act should be done by a party-in-person. When the Code requires the appearance of an accused in a court it is no compliance with it if a power-of-attorney holder appears for him. It is a different thing that a party can be permitted to appear through counsel. Chapter XVI of the Code empowers the Magistrate to issue summons or warrant for the appearance of the accused. Section 205 of the Code empowers the Magistrate to dispense with "the personal attendance of the accused, and permit him to appear by his pleader" if he sees reasons to do so. Section 273 of the Code speaks of the powers of the court to record evidence in the presence of the pleader of the accused, in cases when per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners filed the subject writ petition. All these events and happenings from 19-11-2021 until the filing of the present petition on 23-12-2021 have been completely suppressed by the petitioners. This suppression is not in dispute, as a rejoinder is filed by the petitioners to the statement of objections filed by the 5th respondent/complainant in which these facts so urged, are not rebutted. 15. On the other hand, in the said rejoinder the petitioners admit that the power of attorney was executed before a notary public in United Kingdom on 14-12-2021. It is also submitted that the petitioners had approved the draft on 11-12-2021. Therefore, the power of attorney being executed at Bangalore and notarized at United Kingdom is not in dispute. The petitioner No. 1 has filed an affidavit of declaration which is dated 29-03-2022 for the first time stating that in view of travel restrictions due to COVID-19 the power of attorney was handed over to a family friend Mr. Gautam Giri and has also sought to defend the allegations made in the complaint. But there is no whisper about the afore-narrated facts and events that have been suppressed by the petitioners while filing the present petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible." In the light of the facts so narrated hereinabove and the judgment of the Apex Court in the case of PRESTIGE LIGHTS (supra), the case at hand is to meet its dismissal with imposition of exemplary costs, as the petitioners have invoked the jurisdiction of this Court both under Articles 226 and 227 of the Constitution of India and Section 482 of the Cr.P.C. with unclean hands. 16. In the light of point Nos. (i) and (ii) having been answered in the negative against the petitioners, the other point with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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