High Court Kerala High Court

Mrs.Geetha Gladston vs The Director General Of Police on 4 June, 2009

Kerala High Court
Mrs.Geetha Gladston vs The Director General Of Police on 4 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 27006 of 2004(M)


1. MRS.GEETHA GLADSTON,
                      ...  Petitioner

                        Vs



1. THE DIRECTOR GENERAL OF POLICE,
                       ...       Respondent

2. THE RESIDENT COMMISSIONER,

3. R.K.VERMA,

4. LONGTON JOSEPH,

5. STATE OF KERALA,

6. UNION OF INDIA,

7. THE SUPERINTENDENT OF POLICE,

                For Petitioner  :SRI.K.RAMAKUMAR (SR.)

                For Respondent  :SRI.S.SREEKUMAR, SC FOR CBI

The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.BHAVADASAN

 Dated :04/06/2009

 O R D E R
              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 Attachi (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
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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