IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.54568 OF 2018 (GM-RES) BETWEEN:
1. SUNITA MOTWANI W/O AMITABH SINHA AGE: 52 YEARS C 910 RAJA ARISTOS APTS DODDA KAMMANAHALLI MAIN ROAD OFF B.G.ROAD, BANGALORE – 560 076 2. KARTHICKEYA, AGE 15 YEARS S/O AMITABH SINHA AND SUNITA MOTWANI C 910 RAJA ARISTOS APTS DODDA KAMMANAHALLI MAIN ROAD OFF B.G.ROAD, BANGALORE – 560 076 … PETITIONERS (BY SMT. SUNITA MOTWANI, PARTY-IN-PERSON) AND:
1. AMITABH SINHA S/O LATE M.C.SINHA AGE: 41 YEARS 179, TIWARIPUR POST SEWANS TANNERY ADARSH NAGAR, KANPUR – 208010 UTTAR PRADESH THRU ADVOCATE PRITHVIRAJ B.N.
F-113, 2ND FLOOR CENTRAL CHAMBERS 2ND MAIN GANDHI NAGAR BANGALORE – 560 001 2. JOINT SECRETARY (PSP) AND CPO CPV DIVISION MINISTRY OF EXTERNAL AFFAIRS ROOM NO.8, PATIALA HOUSE TILAK MARG NEW DELHI – 110 001 3. UNION OF INDIA THRU THE HON’BLE FOREIGN SECRETARY MINISTRY OF EXTERNAL AFFAIRS SOUTH BLOCK, NEW DELHI – 110 011 4. JOINT SECRETARY IS-II DIVISION MINISTRY OF HOME AFFAIRS FCRA WING, 1ST FLOOR MAJOR DHYAN CHAND NATIONAL STADIUM NEAR PRAGATI MAIDAN NEW DELHI – 110 001 5. JOINT DIRECTOR INVESTIGATION ENFORCEMENT DIRECTORATE MINISTRY OF FINANCE 6TH FLOOR, LOK NAYAK BHAVAN KHAN MARKET, NEW DELHI – 110 003 6. JOINT DIRECTOR CBI, INTERPOL & COORDINATION WING PLOT NO.5-B, 6TH FLOOR A WING, CGO COMPLEX NEW DELHI – 110 003 (MR. PRITHVI RAJ B.N., ADV., FOR R1 (ABSENT) MR. C. SHASHIKANTH, ASG FOR R2 TO R4 MR. P. PRASANNA KUMAR, SPECIAL PUBLIC PROSECUTOR FOR R6) … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE TO R2 AND R3 AND 5 AND 6 THRU R4 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 DEPARTMENT OF SECRETARY OF STATE NORTH CAROLINA USA. [THE DETAILS OF THESE DEPARTMENT HAVE BEEN ENCLOSED IN PARA 26] IN THE INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION COMING ON FOR ARGUMENTS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Smt.Sunita Motwani, petitioner Party-in-Person. Mr.C.Shashikanth, learned Assistant Solicitor General of India for respondent Nos.2 to 4.
Mr.P.Prasanna Kumar, learned Special Public Prosecutor for respondent No.6.
2. The writ petition is admitted for hearing.
With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner inter alia has prayed for the following directions:
(a) The respondent Nos.2 and 3 and 5 & 6 through respondent No.4 directing them to procure the authenticated ITR’s of i5Dynamic 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 Department of Secretary of State North Carolina USA. [The details of these department have been enclosed in para 26] in the interest of justice and equity.
(b) The respondent No.2 and Respondent No.3 through respondent No.4 directing tehm to procure/secure ITR’s of Amitabh Sinha (respondent No.1) filed in USA i.e., from Department of Revenue North Carolina USA from 2007 till date in the interest of justice and equity.
(c) The respondent No.5 and rse 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.
(d) Pass any other order as deemed fit under present facts and circumstances.
4. Facts giving rise filing of the petition briefly stated are that the petitioner No.1 was married with respondent No.1 on 25.04.2001. Out of the wedlock, petitioner No.2 was born on 12.02.2003. On 07.03.2007, the petitioner along with respondent No.1 went to USA and thereafter on 23.09.2007, respondent No.1 was arrested for the acts of Domestic Violence and Atrocities on the petitioners. It is averred in the writ petition that petitioners were compelled to leave united States on 26.09.2007 and were rendered homeless and penniless. It is also averred that certain cases under the provisions of Domestic Violence were filed in Delhi in the year 2007. However, the respondent No.1 did not appear in the aforesaid case. It is further averred that on google search petitioner found that respondent No.1 owns a software company namely i5Dynamics LLC registered with Department Of Revenue, North Carolina, USA on 18.02.2009. The petitioners have also lodged a case against the respondent No.1 on the basis of which offence under Section 498A of Indian Penal Code, 1860 has been registered against the respondent No.1. It is also averred that a look out notice was issued against respondent No.1 and thereafter he was released on bail. Admittedly, the proceedings for dissolution of marriage are pending between the parties before the family court. In the aforesaid factual background, the petitioner has approached this court seeking the relieves as quoted supra.
5. Party-in-person submitted that a treaty has been executed between the Government of Republic of India and the Government of United States of America on mutual legal assistance in criminal matters under which respondent Nos.2 to 4 can be directed to issue letter rogatory to procure the authenticated Income Tax returns of the company of the respondent No.1 from 2007 till date. Party in person has further submitted that the aforesaid order is necessary for doing complete justice and enforcing the fundamental rights of the petitioners. It is further submitted that the petitioner has exhausted all the remedies and thereafter has approached this Court and this Court alone has power to direct the Ministry of External Affairs to issue letter rogatory. In support of aforesaid submissions, reliance has been placed on decision of Supreme Court in ‘STATE OF WEST BENGAL AND OTHERS VS. COMMITTEE FOR PROTECTION OF DOMESTIC RIGHTS WEST BENGAL AND OTHERS’, (2010) 3 SCC 571.
6. On the other hand, learned Assistant Solicitor General of India for respondent Nos.2 to 4 has invited the attention of this Court to the treaty in question and has submitted that action under the aforesaid treaty can be taken in relation to criminal matters. It is also submitted that the prayer made by the petitioners is outside the scope of the treaty and the police authorities of Karnataka have not made any request to Ministry of Home Affairs for seeking any evidence from the USA. Learned counsel for respondent No.6- Central Bureau of Investigation submitted that no matter is pending before respondent No.6 and therefore, central agencies cannot be directed to secure any documents of any private individual to a matrimonial litigation. It is further submitted that the petitioners cannot seek assistance of Central Bureau of Investigation in securing documents to prove or disprove a point in matrimonial litigation.
7. I have considered the submissions made by learned counsel for the parties and have perused the record. It is well settled in law that a writ of mandamus is available to secure performance of judicial, statutory and executive duties of a public nature which includes compelling for bearance as well as compelling action. A writ of mandamus is issued where legal public duty is clear, unqualified and specific and at the instance of a person who establishes that he has a legal right to enforce performance of a public duty. Such right or duty may not be constitutional and may founded on statute or common law but relief by way of mandamus will be available only when legal right or petitioner and legal duty of respondent is of public nature.
8. In the backdrop of aforesaid well settled legal position, the facts of the case on hand may be examined. The treaty which has been executed between the Government of Republic of India and the Government of USA on 17.10.2001 provides that this treaty shall be solely for mutual legal assistance between the contracting parties and the provisions of this treaty shall not give rise to a right on the part of any private person to obtain, suppress or exclude any evidence or to impede the execution of a request. Clause 4 of Article 1 reads as under:
This treaty is intended solely for mutual legal assistance between the contracting parties. The provisions of this treaty shall not give rise to a right on the part of any private person to obtain, suppress or exclude any evidence, or to impede the execution of a request.
9. Thus, from perusal of the aforesaid treaty, it is evident that the aforesaid treaty does not confer any right on any private person to obtain evidence. Thus, the relieves sought for by the petitioner is outside the purview of the treaty. Therefore, the relieves as prayed for by the petitioner contained in Clause (A) and (B), which is based on treaty cannot be granted. The petitioners have no legal right. Even otherwise the petitioners have failed to establish any legal right, corresponding legal right in their favour or corresponding legal obligation on the respondents. Therefore, the writ of mandamus as prayed for by the petitioners cannot be issued. So far as relief (C) is concerned, no matter is pending before Central Bureau of Investigation and no statutory duty is attached to central agency to help a private litigant in the matrimonial litigation. In the absence of any statutory obligation, the respondent No.6 cannot be compelled to get the details of the company of respondent No.1.
10. Admittedly, the dispute is a matrimonial dispute and the petitioner wants the aforesaid information in connection with her claim for maintenance. Admittedly, the proceedings for dissolution of marriage are pending before the family court. Therefore, it will be open for the petitioners to file an application under Order 11 Rule 12 of the Code of Civil Procedure, 1908 before the family court where the proceeding are pending. Needless to state that in case such an application is field, the family court shall decide the same expeditiously in accordance with law preferably within three weeks from the date of filing of such an application after affording an opportunity of hearing to the parties.
With the aforesaid directions, the petition is disposed of.
Sd/- JUDGE SS