IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL NO.3846 OF 2019 (GM-RES) BETWEEN:
1 . SUNITA MOTWANI 53 YEARS W/O. AMITABH SINHA PRESENTLY AT: D.702, NITESH HYDE PARK 341/1M1, 2ND CROSS ROAD, OFF B G ROAD BANGALORE-560076 2 . KARTICKEYA AGE 16, S/O. AMITABH SINHA PRESENTLY AT: D.702, NITESH HYDE PARK 341/1M1, 2ND CROSS ROAD, OFF B G ROAD BANGALORE-560076 (SINCE MINOR, SHALL BE REPRESENTED BY NATURAL GUARDIAN MOTHER IN PERSON) ... APPELLANTS (BY SMT. SUNITA MOTWANI, PARTY-IN-PERSON) AND:
1 . AMITABH SINHA (42 YEARS) S/O. LATE M.C. SINHA PRESENTLY AT 1253, R K PURAM SECTOR 2 NEW DELHI -110022. THRU ADVOCATE PRITHVIRAJ B.N.
F-113, 2ND FLOOR CENTRAL CHAMBERS 2ND MAIN GANDHI NAGAR BANGALORE-560001.
2 . JOINT SECRETARY (PSP AND CPO) CPV DIVISION MINISTRY OF EXTERNAL AFFAIRS ROOM NO.8,PATIALA HOUSE TILAK MARG, NEW DELHI-110001.
3 . UNION OF INDIA THRU THE HON'BLE FOREIGN SECRETARY MINISTRY OF EXTERNAL AFFAIRS SOUTH BLOCK NEW DELHI-110011.
4 . JOINT SECRETARY IS-II DIVISION, MINISTRY OF HOME AFFAIRS, FCRA WING, 1ST FLOOR MAJOR DHYAN CHAND NATIONAL STADIUM NEAR PRAGATI MAIDAN NEW DELHI-11001 5 . JOINT DIRECTOR INVESTIGATION ENFORCEMENT DIRECTORATE MINISTRY OF FINANCE 6TH FLOOR, LOKNAYAK BHAVAN KHAN MARKET NEW DELHI-110003.
6 . JOINT DIRECTOR CBI, INTERPOL AND COORDINATION WING PLOT NO.5-B, 6TH FLOOR, A-WING CGO COMPLEX NEW DELHI-110003.
... RESPONDENTS (BY SHRI C. SHASHIKANT, ASG FOR R3,R4 & R5) ---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO MODIFY THE ORDER DATED 11/07/2019 PASSED IN WP NO. 54568/2018 BY REVIEWING PARA 8, 9 IN ACCORDANCE WITH THE COUNTER AFFIDAVIT FILED BY THE MINISTRY OF HOME AFFAIRS LEGAL AFFAIRS (RESPONDENT No.4), DELETING THE PARA 10 AND GRANTING THE LIBERTY TO THE APPELLANTS TO FIND AN ALTERNATE REMEDY THRU TRIAL COURTS OR OTHERWISE IN ACCORDANCE WITH LAW AND ETC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the first appellant appearing in person for herself and as a natural guardian of the second appellant.
2. The first respondent is the husband of the first appellant. There were three prayers made in the writ petition filed by the appellants which read thus:
A) The Respondent No.2 & 3 and 5 & 6 thru Respondent 4 directing them to Procure the Authenticated ITR’s of i5Dynamics LLC and Bank Account Details Associated with i5Dynamics LLC and Other Authenticated Financial Documents of i5Dynamics LLC From Department Of Revenue North Carolina USA And From The Dept Of Secretary Of State North Carolina USA. [The Details Of These Dept Have Been Enclosed in Para 26] in the interest of justice and equity.
B) The Respondent No.2 & Respondent No.3 thru Respondent No.4 Directing them to procure/secure ITR’s of Amitabh Sinha (respondent no.1), filed in USA ie From Dept Of Revenue North Carolina USA From 2007 till date in the interest of justice and equity.
C) The Respondent no 5 and Respondent no. 6 directing them to get the details of the other/present company which is active against the social security no. and against the visa of Respondent no.1 which is being operated by Amitabh Sinha from India in the interest of justice and equity.”
3. The learned Single Judge declined to grant the said prayers and observed that it will be open for the appellants to file an application under Rule 12 of Order XI of the Code of Civil Procedure, 1908 before the Family Court.
4. The first appellant invited our attention to the counter affidavit filed on behalf of the fourth respondent (Joint Secretary, IS-II Division, Ministry of Home Affairs, Government of India) and in particular, what is stated in paragraphs 4 and 6. The submission of the first appellant is that even the fourth respondent has stated that a request can be made by the police authorities for seeking evidence from USA and such a request has not been made by the investigating agency. Her submission is that the impugned order prevents her from moving the police authorities to make a request in terms of the Mutual Legal Assistance Treaty for seeking evidence from USA. Her further submission is that in view of the observations made in the impugned order, her remedy under the said Treaty is taken away.
5. We have considered the submissions. As can be gathered from the submissions made by the first appellant, per se, she has no grievance about the rejection of the prayers (A) to (C). However, her submission is that in view of the findings recorded in paragraphs 8 to 10 of the impugned order, the appellants will be prevented from even approaching the police authorities to make a request as provided in the Treaty. The grievance of the first appellant is that the remedy of making an application under Rule 12 of Order XI of the Code of Civil Procedure, 1908, is not at all efficacious.
6. We have considered the submissions. The first appellant relied upon the counter affidavit filed on behalf of the fourth respondent. Paragraphs 3 to 6 of the said affidavit read thus:
“3. I state that, the Government of the Republic of India and the Government of the United States of America have entered into mutual Legal Assistance Treaty (MLAT) on Criminal matters 17.10.2001 for mutual assistance to each other, in accordance with the provisions of the said Treaty in connection with the investigation, prosecution, prevention and suppression of offences, and proceedings related to criminal matters. Under the said Treaty, the Ministry of Home Affairs is the Central Authority for the Government of India. Article 1 of the treaty provides for the scope of assistance. The comprehensive guidelines had been issued vide Ministry of Home Affairs letter no.25016/14/2007- Legal Cell dated 31st December 2007.
4. I state that, Article – 4 of the Treaty states that a request for assistance shall be made in writing alongwith the details of the request such as name of the authority conducting the Investigation, prosecution or proceedings to which the request relates; description of the evidence, information or other assistance sought, etc.
5. I state that as per the averment made in the present WP it appears that in FIR the investigation in the case for which the Petitioners have sought for the direction to obtain ITR’s of i5 Dynamics LLC and Bank Acount details associated with i5 Dynamics LLC from Department of Revenue North Carolina USA, is complete and the cases have reached the stage of Framing Charges.
6. The investigation agency in this matter i.e policy authorities of Karnataka have not made any request till date for seeking any evidence from the USA and the Investigating Agency has not made any such request to the Ministry of Home Affairs being the Central Authority of the Government of India, in the Treaty.”
7. In paragraph 7 of the counter affidavit, it is stated that Article–1 (4) of the Treaty does not confer a right on a private person to obtain evidence. However, as stated in paragraph 6, a request can be always made by the police authorities who are investigating into the First Information Report.
8. Coming back to paragraphs 8 and 9 of the impugned order, all that the learned Single Judge has observed is that under the Treaty, there is no right conferred on the appellants being private persons to obtain evidence. Paragraphs 8 and 9 do not prevent the police authorities from making a request in accordance with law. The impugned order does not prohibit the first appellant from making an application to the police authorities requesting them to make a request as provided in the Treaty. Whether the said request is acceded to or not is a different matter and at this stage we cannot make any adjudication on that issue. Therefore, the impugned order does not take away the opportunity available to the police authorities to make a request as stated in the affidavit filed by the fourth respondent. That is how the impugned order does not prevent the appellants to make an appropriate request through the police authorities. Paragraph 10 of the impugned order also does not take away any other remedy if available in accordance with law.
9. Subject to what is observed above, it is not necessary to interfere with the impugned order and the appeal is accordingly disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE SN