IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 WP(C).No. 27006 of 2004(M) -------------------------- PETITIONER(S): --------------- MRS.GEETHA GLADSTON, W/O. DAVID ENOSE GLADSTON, THOPPIL HOUSE, T.C.NO.1/1374, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT(S): -------------- 1. THE DIRECTOR GENERAL OF POLICE, KERALA STATE, TRIVANDRUM. 2. THE RESIDENT COMMISSIONER, GOVERNMENT OF KERALA, MORKA CELL, KERALA HOUSE, 3-JANTAR MANTAR ROAD, NEW DELHI. 3. R.K.VERMA, ATTACHE (CONSULAR), EMBASSY OF INDIA, TRIPOLIE, LIBYA. 4. LONGTON JOSEPH, ALATHUR HOUSE, KARITHURA, PUTHENTHURA P.O., CHAVARA, KOLLAM. 5. STATE OF KERALA, REPRESENTED BY THE HOME SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 6. UNION OF INDIA, REPRESENTED BY THE HOME SECRETARY, CENTRAL SECRETARIAT, NEW DELHI. 7. THE SUPERINTENDENT OF POLICE, SPE/CBI, KATHRUKADAVU, KALOOR, COCHIN-17. GOVERNMENT PLEADER FOR R1 - SRI.NOBLE MATHEW. SRI.P.PARAMESWARAN NAIR (ASST.S.G.) FOR R6 SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2009, ALONG WITH CRMC NO. 1518 OF 2005, WPCR NO. 122 OF 2009 THE COURT ON 04/06/2009 DELIVERED THE FOLLOWING: APPENDIX EXT.P1: TRUE COPY OF MARRIAGE CERTIFICATE. EXT.P2: TRUE COPY OF DECREE DT. 18/12/1996. EXT.P3: TRUE COPY OF F.I.R. EXT.P4: TRUE COPY OF REPRESENTATION DT. 15/12/2001. EXT.P5: TRUE COPY OF ORDER OF APPOINTMENT DT. 5/12/2000. EXT.P6: TRUE COPY OF LEAVE APPLICATION OF DR.GLADSTON. EXT.P7: TRUE COPY OF INTIMATION DT. 15/12/2003. EXT.P8: TRUE COPOY OF LETTER DT. 15/10/2003. EXT.P9: TRUE COPY OF F.I. STATEMENT GIVEN BY PETR. EXT.P10: TRUE COPY OF FILE REPORT DT. 25/9/2003. EXT.P10(a): TRUE COPY OF D.G.P'S LETTER DT. 4/3/2003. EXT.P11: TRUE COPY OF DISMISSAL ORDER DT. 12/11/2003. EXT.P12: TRUE COPY FO LIFE CERTIFICATE DT. 19/3/2002. EXT.P13: TRUE COPY OF LETTER DT. 27/9/2003 TO LIBIYA EMBASSY. EXT.P14: TRUE COPY OF LETTER FROM PETR. TO MINISTER FOR EXTERNAL AFFAIRS. EXT.P15 TRUE COPY OF LETTER FROM NORKA DT. 2/12/2003. EXT.P16: TRUE COPY OF LETTER FROM R.R.VARMA. EXT.P17: TRUE COPY OF LETTER DT. 14/6/2004. EXT.P18: TRUE COPY OF LETTER NO.743 OF INDIAN EMBASSY, TRIPOLY. EXT.P19: TRUE COPY OF LETTER FROM R4 TO PETR. EXT.P19(A): TRUE COPY OF LETTER FROM R4 TO PETR. EXT.P20: TRUE COPY FO MARRIAGE CERTIFICATE OF R4 respondents' exhibits: EXT.R1(A) LIFE CERTIFICATE ISSUED FORM INDIAN EMBASSY. EXT.R2(B): FAX MESSAGE TO INDIAN EMBASSY DT. 24/12/2003. EXT.R1(C): FAX MESSAGE DT. 28/12/2003.FROM DO. EXTS.R1(a) TO R1(f): PHOTOCOPIES OF DOCUMES. EXT.R2: COPY OF CONFIRMATION LETTER. EXT.R3 & R3(a)): COPIES OF LETTER AND REPLY. EXT.R4 & R4(a): COPIES OF LETTERS FROM SECRETARY TO HONLE CHIEF MINISTER AND SECRETARY NORKA. EXT.R5(a) TO ©: COPIES OF LETTERS RECEIVED BY NORKA. EXTS.R6(a) & B COPY OF LETTER NO.A 4120782 DT.1/12/97. A.K. BASHEER & P. BHAVADASAN, JJ. --------------------------------------------- W.P.(C) No.27006 OF 2004, CRL.M.C.NO.1518 OF 2005& W.P.(CRL.)NO.122 OF 2009 ------------------------------------------- Dated this the 4th day of June, 2009 J U D G M E N T Basheer, J. These three cases are being disposed of by this common judgment since the petitioner is common, and issues involved in them are closely interrelated. 2. Petitioner is the wife of Dr. David Enos Gladston. They got married in the year 1982. They have a daughter named Gypsy Gladston, who is aged about 24 years. 3. The grievance of the petitioner in W.P.(C)No.27006/2004 is that her husband had been missing from his residence at Chavara in Alappuzha District since December, 2000 and his whereabouts were not known. Petitioner, therefore, prayed for issue of a writ of mandamus commanding the Central Bureau of Investigation to take over the investigation into the disappearance of her husband and file a report before the competent court expeditiously. WPC.27006/04& Con.Cases :: 2 :: 4. The above writ petition was filed in September, 2004. But admittedly, in 2001 Chavara police had registered Crime No.506/2001 and conducted investigation on the basis of the complaint filed by the petitioner. The police, after investigation, found that petitioner's husband who had been serving in the Health Service had joined a hospital in Libya as a Surgeon, after obtaining leave without allowance from the Government. She had also filed an original petition before this court (O.P.No.35742/2001) praying for issue of a writ of habeas corpus. But during the pendency of the original petition she came to know that her husband was in Libya. It appears that the original petition was disposed of with liberty to the petitioner to pursue the matter appropriately. It is also on record that she had filed yet another writ petition as O.P.No.3249/2002 impugning the refer report filed by the Chavara police in the “man missing” crime, (crime No.506/2001) referred to above. This Court had directed the Director General of Police to consider the representation submitted by the petitioner in this regard and take an appropriate decision. The Director General, after considering the representation, had found that the investigation conducted by the police was proper WPC.27006/04& Con.Cases :: 3 :: and no further investigation was called for. 5. Petitioner had thereafter filed Crl.M.C.No.4532/2003 before this Court praying for issue of a direction to the police to conduct further investigation in the “man missing” crime. The said petition was also dismissed by this Court by order dated November 12, 2003 as could be seen from Ext.P11. 6. Petitioner has filed this writ petition in the above backdrop praying for a further investigation by the C.B.I in the “man missing” crime alleging that Exts.P16 to P18 allegedly received by her from the Embassy of India in Libya would indicate that her husband had never been to Libya as alleged by the Embassy Officials and that Ext.P12 “Life Certificate” issued by the Attache (Consular) Embassy of India in Libya could not therefore be relied on. 7. In the counter affidavit filed by the then Director General of Police, it is stated that the husband of the petitioner had not been “missing” since December, 2000 as alleged. In fact, he had been living in Libya as confirmed by the Indian Embassy in that country. It is further stated by the Director General that the petitioner had been misleading the court and in WPC.27006/04& Con.Cases :: 4 :: that process, she had produced Exts.P16 to P18 documents which were apparently forged and fabricated by her. The forgery committed by the petitioner was more or less confirmed by the Attache (Consular) in the Embassy of India in Libya and also by the Secretary to Government, Non-Resident Keralites' Affairs Department (NORKA) under the Government of Kerala. In Ext.R1 (d) communication dated October 21, 2004, the Secretary to Chief Minister, Government of Kerala had addressed the Director General of Police, Trivandrum informing him that the Chief Minister had directed to take prompt action on the complaint received from the NORKA Department about the alleged forgery committed by the petitioner. The letter further informed the Director General that the office of the Chief Minister had requested the NORKA Department to provide all details available with them to the police for further necessary action. Pursuant to the above, Contonment Police Station, Trivandrum had registered Crime No.85/CB/10/05 under Section 468 IPC against the petitioner on March 16, 2005. The Director General stated that the investigation in the case was in progress. We will refer to the other contentions raised by the WPC.27006/04& Con.Cases :: 5 :: Director General in his counter affidavit, a little later. 8. It is evident from the averments in the writ petition that the marital relationship between the petitioner and her husband had not been smooth or cordial at all for the last several years. Petitioner’s husband had been working in the Health Service under the Government of Kerala. But, petitioner alleged that her husband abstained from duty during September 2000. Initially petitioner was not aware of his absence from duty, since she had been receiving money orders every month from her husband towards maintenance as ordered by the court. But, according to her, when she came to know that her husband had not been attending to his official duty, she had filed the original petition (O.P.No.35742/2001) for issue of a writ of habeas corpus. But, during the pendency of that original petition, she came to know that her husband had got an appointment in Libya as General Surgeon in Al-Siraaj International Hospital. He had gone to Libya after obtaining leave without allowance for five years from the Government. Exts.P5 and P6 are respectively the order of appointment of her husband in the hospital in Libya and the application for leave without allowance submitted by him before WPC.27006/04& Con.Cases :: 6 :: the Government. Ext.P7 is stated to be the copy of communication dated December 15, 2003 received by the petitioner from the Government informing her that her husband had taken up an assignment in a hospital in Libya (as informed by him through the first Secretary of the Indian Embassy). 9. Thus, it is evident that the petitioner was aware where her husband was. But, curiously, petitioner had preferred this writ petition in September 2004 alleging that her husband had been missing and his whereabouts were not known. She further alleged that she had received Ext.P16 communication from the Attaché (Consular), Embassy of India, Libya informing that her husband had never been called for an interview from the Secretary nor had he been appointed in the hospital. It was further stated in Ext.P16 communication that a person in the name of Dr. David Gladston Enos had not even arrived in Libya. Ext.P17 is yet another communication allegedly issued by the Attache (Consular), Embassy of India in Libya informing the petitioner that no communication had been received from the Indian Embassy about the whereabouts of her husband in Libya. It was relying on these three documents the petitioner alleged WPC.27006/04& Con.Cases :: 7 :: that the whereabouts of her husband were not known and therefore, the C.B.I had to be directed to conduct further investigation. She asserted that Exts.P16 to P18 would show that her husband was not in Libya. 10. As mentioned earlier, it is admitted by the petitioner in the writ petition itself that she had received a communication from the Government of Kerala (Ext.P7) on December 15, 2003 informing her that her husband had gone to Libya and taken up an assignment there. She had also stated that she came to know from the Government that her husband had availed of leave without allowance for five years to take up the above assignment in Libya. She had produced Ext.P5 order of appointment issued by the Hospital in Libya to her husband. Ext.P6 is the copy of the leave application submitted by her husband before the Government of Kerala. It may also be noticed that the petitioner had produced Ext.P12 life certificate issued by the Embassy of India in Libya certifying that petitioner’s husband had appeared before R.K. Verma, Attache (Consular), Embassy of India in Libya. WPC.27006/04& Con.Cases :: 8 :: 11. In spite of all these documents produced by her along with the writ petition she alleged, relying entirely on Exts.P16 to P18 that her husband's whereabouts were not known. 12. The Director General of Police, in his counter affidavit, asserted that Exts.P16 to P18 documents were forged. This assertion was made after getting clarification and authentic information from the Embassy of India, NORKA etc. 13. It may also be noticed that in the year 2001, petitioner had filed a complaint before Chavara police alleging that her husband had been missing since December, 2000. The police had registered Crime No.56/2001 and conducted investigation. The case was closed since it was revealed from the investigation that there was no substance in the allegation made by the petitioner and her husband had gone to Libya after obtaining leave without allowance from the Government. 14. Petitioner nevertheless filed a writ petition before this Court seeking further investigation. On a direction issued by this Court, the Director General of Police had addressed the grievance of the petitioner in this regard, and informed her that the investigation conducted by the police in Crime No.506/2001 was WPC.27006/04& Con.Cases :: 9 :: proper and sufficient. 15. Dissatisfied with the above stand taken by the police, petitioner had filed Crl.M.C.No.4532/2003 before this Court seeking for a further investigation of the case. The above petition was dismissed by this Court as could be seen from Ext.P11 order. This Court noticed that the investigation in the case had revealed that petitioner’s husband had gone to Libya after availing leave from the Government of Kerala. 16. We have referred to the above aspects in detail only to show that petitioner was all along aware of the fact that her husband had gone to Libya to take up an assignment in that country and that too, after obtaining leave without allowance from the Government of Kerala, his employer. The police prima facie found that Exts.P16 to P18 documents produced by the petitioner, not only before them but before this Court were forged and fabricated. Crime No.85/CB/10/05 registered by the Cantonment Police, Trivandrum, in this connection on the basis of the letter received from the Secretary, NORKA is now pending investigation. 17. When this writ petition had come up before one of us WPC.27006/04& Con.Cases :: 10 :: (Basheer, J.) on August 8, 2005, respondent No.1 was directed to produce the original documents referred to by him in the counter affidavit, before this Court in a sealed cover. The above direction was complied with and the documents are now available in a sealed cover. These documents are the subject matter of investigation in the crime referred to above, registered by the Cantonment police against the petitioner. 18. In the statement filed by the Director General of Police along with the sealed cover, it is reiterated that petitioner’s husband holding Indian Passport No.B 0638170 had been living in Libya at the relevant point of time. But, according to the petitioner, Exts.P16 to P18 would show that not only Ext.P12 Life Certificate, but also the contents of the communications issued by the Indian Embassy were not correct or reliable. She further alleged that Exts.P16 to P18 would further indicate that her husband had never been to Libya. 19. The fate of the present writ petition will, therefore, depend entirely on these three communications allegedly received by the petitioner from the Indian Embassy in Libya. However, as has been noticed already, the communications WPC.27006/04& Con.Cases :: 11 :: received by the Director General of Police from the Indian Embassy and NORKA did reveal that the genuineness of Exts.P16 to P18 is suspect. A bare perusal of these documents with naked eye will show that there is considerable force in the stand taken by the police. However, we do not propose to make any further comment on this aspect since the case is stated to be under investigation by the police. 20. In this context, it may also be noticed that the Criminal Miscellaneous Case filed by the petitioner (Ext.P11) was dismissed by this Court in November 2003 by which the prayer for further investigation in the crime was turned down by this Court. The above petition was dismissed by this Court on November 12, 2003. Exts.P16 and P18 are dated December 13, 2003 whereas Ext.P17 is dated June 14, 2004. The order in Crl.M.C was never challenged by the petitioner before the superior forum. But, the present writ petition was filed seeking a further investigation by the C.B.I relying on these three documents viz., Exts.P16 to P18. 21. Having considered all the materials available on record and having perused the original records produced by the WPC.27006/04& Con.Cases :: 12 :: Director General of Police in a sealed cover, we are satisfied that petitioner has abused the process of this Court. She has to necessarily face the consequences. The writ petition is liable to be dismissed with costs. 22. Interestingly, when this writ petition came up for consideration in July 2005, petitioner filed an additional affidavit dated July 10, 2005 stating that she did not intend to pursue the matter any further since her husband had “surfaced” and was living in Saudi Arabia. Crl.M.C.No.1518/2005: 23. This petition under Section 482 of the Code of Criminal Procedure has been filed by the petitioner seeking to quash the First Information Report in Crime No.85/CB/10/05 registered by the Cantonment Police against the petitioner under Section 468 I.P.C. We have already referred to the circumstances under which the above crime has been registered by the police. For the reasons stated by us already, we do not find any justification to allow the prayer in this case and therefore, the Crl.M.C is liable to be dismissed. In our view, the police has to be allowed to proceed with the investigation in the crime. WPC.27006/04& Con.Cases :: 13 :: 24. The sealed cover shall be returned to respondent No.1, the Director General of Police, through the office of the Director General of Prosecutions. W.P.(Crl.)No.122/2009: 25. In this writ petition, grievance of the petitioner is that her husband, Dr.David Gladston Enos is under illegal detention of respondent Nos.5 and 6. Petitioner alleges that respondent No.5 along with Sri. Longton, (respondent No.4 in W.P.(C) No.27006/2004) had forcibly taken away her husband to Chathannur and thereafter he was not seen. Curiously, Sri. Longton is not impleaded in this writ petition. It is the case of the petitioner that Respondent No.5 and his wife (respondent No.6 herein) had been detaining her husband either in India or somewhere else. It is not stated in the writ petition since when her husband had been missing. According to the petitioner, her husband had come back from Libya/Saudi Arabia about two years back and stayed with her. But, he was forcibly taken away by respondent No.6 and Mr.Longton. 26. Curiously, petitioner has stated in the writ petition that she is “in no manner desirous of staying” with her husband as he WPC.27006/04& Con.Cases :: 14 :: “appears to be keen on living with a woman in illicit relationship. She is agreeable for a divorce. Her only concern is her daughter, who is aged now 23 years.” 27. Petitioner goes on to allege that she had borrowed huge amounts of money from a bank in order to look after their daughter. But, the whereabouts of her husband are not known and it is only known to respondents 5 and 6, the allegations go on. 28. When this writ petition came up for consideration before us, it was brought to our notice that the other two cases, which we have dealt with already, were also pending. It was therefore that we had called for those cases and taken up for hearing as agreed by the learned senior counsel for the petitioner. All the three cases were heard thereafter. 29. As directed by us, learned Government Pleader has obtained instruction from the Sub Inspector of Police, Chathannur police station. The Sub Inspector reports that so far no complaint has been received from the petitioner regarding the disappearance of her husband. However, the Sub Inspector further states that a crime will be registered after WPC.27006/04& Con.Cases :: 15 :: questioning the petitioner and recording her statement. 30. For the reasons stated by us in the preceding paragraphs, W.P.(C)No.27006/2004 shall stand dismissed with a cost of Rs.10,000/=. The cost shall be paid by the petitioner to the Kerala Mediation Centre attached to the High Court within one month from the date of receipt of a copy of this judgment, failing which it shall be recovered in accordance with law. Crl.M.C.No.1518/2005 and W.P.(Crl) No.122/2009 are also dismissed. However, there will be no order as to costs in these two cases. A.K. BASHEER, JUDGE P. BHAVADASAN, JUDGE cl