Jeeva Santhosh v. The State of Kerala & Others (WP(Crl.) No.1137 of 2022)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944`** ## **`WP(CRL.) NO. 1137 OF 2022`** ## **`PETITIONER:`** ``` JEEVA SANTHOSH AGED 34 YEARS D/O SANTHOSH D'SOUZA, 7/20 NOBLE STREET, NOBLE PARK, VICTORIA-3174, MELBOURNE, AUSTRALIA. TEMPORARY ADDRESS: C/O SANTHOSH D'SOUZA, SATHY BHAVAN, KAZHAKOOTTAM, P.O, TRIVANDRUM- 695582. ``` ``` BY ADV JEEVA SANTHOSH (PARTY- in-PERSON) ``` ## **`RESPONDENTS:`** - `1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, HOME DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN -695001.` - `2 DIRECTOR GENERAL OF POLICE & STATE POLICE CHIEF, VAZHUTHACAUD, THIRUVANANTHAPURAM, KERALA STATE, PIN- 695010.` - `3 THE STATION HOUSE OFFICER, ERNAKULAM TOWN SOUTH POLICE STATION, M.G ROAD, THEVARA JUNCTION, KOCHI CITY, ERNAKULAM DISTRICT, KERALA STATE, KERALA, PIN -682015` - `4 THE STATION HOUSE OFFICER, KOTTARAKKARA-KOLLAM ROAD, CHANDAMUKKU, KOTTARAKKARA, KOLLAM DISTRICT, KERALA STATE, PIN-691506 .` ``` 5NOMY JOPPAN, AGES 38 YEARS, S/O JOPPAN GEORGE, NJAVAROOR HOUSE, PULAMON P.O, KOTTARAKKARA, KOLLAM DISTRICT, NOW RESIDING AT FLAT NO. 802, IIDL AERIE APARTMENT, ``` ``` PANAMPILLY NAGAR, ERNAKULAM CITY, ERNAKULAM DISTRICT, KERALA STATE, KERALA, PIN - 682015. ``` ``` 6JOPPAN GEORGE, AGED 74 YEARS S/O GEORGE, NJAVAROOR HOUSE, PULAMON P.O, KOTTARAKKARA, KOLLAM, NOW RESIDING AT FLAT NO. 802, IIDL AERIE APARTMENT, PANAMPILLY NAGAR, ERNAKULAM CITY, ERNAKULAM DISTRICT, KERALA STATE, KERALA, PIN -682015. ``` ``` 7SOBHI GEORGE, AGED 63 YEARS W/O JOPPAN GEORGE, NJAVAROOR HOUSE, PULAMON P.O, KOTTARAKKARA, KOLLAM, NOW RESIDING AT FLAT NO. 802, IIDL AERIE APARTMENT, PANAMPILLY NAGAR, ERNAKULAM CITY, ERNAKULAM DISTRICT, KERALA STATE, KERALA, PIN -682015 ``` ``` 8UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF EXTERNAL AFFAIRS, SOUTH BLOCK, NEW DELHI - 110001. IS SUO MOTO IMPLEADED AS ADDL. R8 VIDE ORDER DATED 6/12/2022 IN WP(CRL) 1137/22(S) ``` ``` 9THE COMMISSIONER OF POLICE, KOCHI CITY, ERNAKULAM, KERALA. ``` - `10 THE STATION HOUSE OFFICER ERNAKULAM CENTRAL POLICE STATION, ERNAKULAM.` ``` 11THE CENTRAL BUREAU OF INVESTIGATION (CBI) REPRESENTED BY ITS DIRECTOR, CBI HEADQUARTERS, LODHI ROAD, PLOT NO.5-B, JAWAHARLAL NEHRU STADIUM MARG, CGO COMPLEX, NEW DELHI-110 003 ``` ``` 12THE HEAD OF BRANCH ANTI-CORRUPTION BUREAU, CENTRAL BUREAU OF INVESTIGATION (CBI), CBI ROAD, KATHRIKADAVU, KALOOR, ERNAKULAM- 682 017. ADDL. R9 TO R12 ARE SUO MOTU IMPLEADED VIDE ORDER DATED 14/02/2023 IN WP(CRL). 1137/2022(S). ``` ``` BY ADVS. SHRI.P.NARAYANAN, SENIOR G.P. DIRECTOR GENERAL OF PROSECUTION Alexander George ``` ``` SRI.SUVIN R.MENON, CGC MANU S., DSG OF INDIA ADVOCATE GENERAL OFFICE KERALA P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC PROSECUTOR() ``` ## **`OTHER PRESENT:`** ``` SRI. SAIGI JACOB PALATTY-SR.GP ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **ALEXANDER THOMAS & SOPHY THOMAS, JJ.** **-----------------------------------------------------------------------** W.P.(Crl.) No.1137 of 2022 **------------------------------------------------------------------** Dated this the 17[th] day of March, 2023 ## **JUDGMENT** ## **Alexander Thomas, J.** The brief of the core and relevant facts, leading to the instant writ proceedings, is broadly as follows: The case of the petitioner herein, aged 34 years, is that she is a person of Indian origin and now, an Australian citizen, who was initially brought up in Bahrain and that, currently holding Australian Passport bearing No.PB 3664332, issued by the Australian Government on 06.02.2022, which is current and valid upto 06.10.2032, etc. Further that, she is now working as a regional Human Resource (HR) Manager at Tech Mahindra, Melbourne, Australia, and that, she has enough financial resources to look after her daughter, born in her erstwhile marital relationship with contesting respondent No.5. That, earlier, her marriage was solemnised with contesting respondent No.5, in Kerala, on 17.01.2011. At the time of marriage, contesting respondent No.5 was residing in Australia on a student visa and 2 W.P.(Crl.) No.1137 of 2022 after the marriage, the petitioner also migrated to Australia on a student visa and later, Ms. Bethsheba Meriam Nomy, now aged 10 years, was born on 15.09.2012 in Australia, in the said wedlock. That, the marital relationship between the petitioner and contesting respondent No. 5 faced rough weathers and that, the petitioner was constrained to initiate criminal proceedings against contesting respondent No. 5 before the competent Magistrate Court at Australia. Further that, contesting respondent No.5 had, allegedly, initiated proceedings bearing No. PAC 4725 of 2017, seeking for permanent custody of the detenue before the Federal Circuit & Family Court of Australia (Division 2). That, contesting respondent No.5 herein and the petitioner herein both entered appearance in the abovesaid case in Australia and contested the matter. That, in the criminal proceedings, the Magistrate court had issued protection order in favour of the petitioner herein and the minor alleged detenue (daughter), against contesting respondent No.5. Further that, in the Federal Circuit & Family Court of Australia (Division 2), after full fledged trial, the said court has rendered Ext. P2 order dated 26.01.2018 granting permanent custody of the alleged detenue 3 W.P.(Crl.) No.1137 of 2022 to the petitioner herein, who is stated to be the respondent in Ext.P2 proceedings, making observations regarding the alleged coercive nature and criminal character of contesting respondent No. 5 herein and after considering the welfare, safety and best interest of the alleged detenue. The petitioner would aver that para Nos. 329, 330 & 341 of Ext. P2 order, issued by the above Australian Court, read as follows:- ## _**Paragraph: 329**_ _“The criminal history of the father and his parents was tendered during the course of the hearing. It shows criminal history including:_ - _i. driving on-road whilst license suspended;_ - _ii. possessing goods suspected to be stolen;_ - _iii. contravening a prohibition or restriction in an apprehended violence order;_ - _iv. resisting officer in execution of duty;_ - _v. behaving in an offensive manner in or near a public place or school;_ - _vì. intimidating police officer in execution of duty; and_ - _vii. owner not disclose identity of driver/passenger._ - _viii. knowingly deal with proceeds of crime intent to conceal;_ - _ix. use false document to influence the exercise of public duty;_ - _x. recklessly deal with proceeds of crime less than $5,000;_ - _xi. stalk intimidate intend fear physical et cetera harm._ - _xii. Driving fines of $72,025. xiii. custody of a knife in a public place;_ - _xiv. common assault;_ - _xv. resisting an officer in the execution of duty;_ - _xvi. goods impersonal custody suspected of being stolen; xvii. driver fails or refuses to disclose his identity; xviii. possession/attempt to prescribed restricted substance;_ - _xix. failure to appear in records of bail acknowledgement;_ _xx. I am satisfied having regard to the mother’s concessions as to the physical assault occassioned upon her by the father’s parents, that it is in the child’s best interest that she may be protected from these two people (Joppen George and Sobhi Joppen). The question then is what level of protection is necessary. The mother seeks an order that the child not come into contact at all with the brothers. The Independent Children’s Lawyer agree that the child is adequately protected if an_ 4 W.P.(Crl.) No.1137 of 2022 _order is made that the child is not to be left alone with the parents of the Father”_ ## _**Paragraph 330:**_ _"I am satisfied having regard to the criminal history of the father and his parents together with the assault upon the mother that it is in the child's best interests that she not come into contact with the parents of the father and accordingly orders will be made restraining the mother from allowing Bethsheba to come into contact at all with Mr Joppen George and Ms Sobhi Joppen."_ ## _**Paragraph 341:**_ _"I am satisfied that the child would be at an unacceptable risk of harm if she was to spend time with the father grounded upon the findings I have made as to the father's perpetration of family violence and drug use. I am satisfied that such risk, and the consequent negative impact on the mother were time to be ordered, could not be ameliorated in any way. "_ ## 2. Further, the petitioner would aver that the said ## Australian Court, in Ext. P2 verdict, has specifically ordered as ## hereunder:- - _“1. The Mother have sole parental responsibility for Bethsheba Meriam Nomy born on 15 September 2012 (“the child”)._ _2. The child lives with the Mother._ _3. The child spends no time with the Father._ _4. Pursuant to section 68B of the Family Law Act 1975 (Cth) the Father is restrained from:_ - _a) Approaching or contacting the Mother or child by any means including electronic communication;_ _b) Causing or threatening to cause bodily harm to the Mother; c) Harassing or stalking the Mother, and d) Coming within 100 meters of: i. The Mother’s home; and ii. The child’s schools(s), before/after school care or any extracurricular program at which the child may attend.”_ 3. Further, the petitioner would allege that, in violation of Ext.P2 verdict of the Australian Court, contesting respondent No.5 5 W.P.(Crl.) No.1137 of 2022 herein had broken open to the house of the petitioner herein and had stolen the passport of the alleged detenue and by showing fake permission message, had abducted the detenue from her kindergarten school and had fled to India with the child, without the consent of the petitioner herein as well as the competent authorities of Australia. That, the petitioner has made various complaints to the Australian police, who intimated their inability, as contesting respondent No.5 and the detenue are out of the territorial jurisdiction of Australia. That, the petitioner was advised that she has to approach the Indian authorities and Indian Courts to secure the custody of the child back. 4. That, the petitioner had, thereafter, filed Ext. P6 original petition, O.P. (Guardian & Wards) No. 1072/2018, before the Family Court, Kottarakkara, Kollam District, Kerala State, India, on 06.08.2018, in which the contesting respondent No. 5 herein has been arrayed as respondent therein, with the prayer that custody of the above minor daughter shall be granted to her. 5. Further that, contesting respondent No. 5 herein had preferred Original Petition (Divorce), O.P.(Div) No. 465/2018, before 6 W.P.(Crl.) No.1137 of 2022 the abovesaid family court, Kottarakkara, Kerala, India, in which the petitioner herein has been arrayed as the respondent, seeking that the Family Court may give a decree dissolving the marriage between the petitioner therein (contesting respondent No.5 herein) and the respondent therein (petitioner herein). 6. It is common ground that the details of the abovesaid litigations need not detain our consideration, in view of the subsequent developments, inasmuch as the core of the case is that, later, the aforesaid Ext. P6 O.P.(G&W) No. 1072/2018, filed by the petitioner herein, seeking custody of the above minor child, was dismissed by the Family Court, Kottarakkara, Kollam District, as per order dated 05.02.2020, stating that the respondent therein (R-5 herein-father of the child) was present and that the petitioner therein (petitioner herein-mother of the child) was absent but was represented through counsel. Further, it was recorded by the Family Court therein that, the counsel for the petitioner therein (petitioner herein) has endorsed in the above petition, viz., O.P.(G&W) No.1072/2018, that, the petition is not pressed and hence, the petition was dismissed by the Family Court but no cost has been 7 ## W.P.(Crl.) No.1137 of 2022 awarded and that the abovesaid order has been pronounced by the Family Court, Kottarakkara, in open court on the 05[th] day of February, 2020. 7. The abovesaid order dated 05.02.2020, rendered by the Family Court, Kottarakkara, dismissing O.P.(G&W) No. 1072/2018, reads as follows:- ## **“O R D E R** _Respondent present. Petitioner absent. Represented. The counsel for the petitioner endorsed in the petition that the petition is not pressed. Hence the petition is dismissed. No cost._ _Pronounced in the open court, on this the 5[th] day of February, 2020.”_ 8. It is also common ground that, later, the Family Court, Kottarakkara, has rendered order dated 28.02.2020 in O.P.(Div.) No.465/2018 (filed by R-5 herein), in which the petitioner herein has been arrayed as the sole respondent therein, whereby it has been decreed that the Divorce petition is allowed, declaring the marriage solemnised between the petitioner therein (R-5 herein) and the respondent therein (petitioner herein) on 17.01.2011, is dissolved by a decree of divorce under Sec. 10(1)(ix) and (x) of the Divorce Act, 1869, with effect from the date of decree. It is also common ground 8 W.P.(Crl.) No.1137 of 2022 that, subsequently, both the petitioner and R-5 have re-married. It appears from a reading of the abovesaid verdict of the Family Court, Kottarakkara, in O.P.(Div.) No.465/2018, that both sides were represented through counsel, etc. 9. The case set up by the petitioner herein in the writ petition (criminal) is to the effect that, as a matter of fact, she had indeed fully briefed her counsel, who appeared on her behalf in Ext.P2 O.P. (G & W) No. 1072/2018 (custody petition) filed before the Family court, Kottarakkara, that she had already secured Ext. P2 verdict of the afore Australian Court, as early as on 26.01.2018, whereby the permanent custody of the child was given in her favour and that too in a custody petition, said to have been filed by the father (R-5 herein) and that this aspect of the matter was not apprised by her counsel before the Family Court, Kottarakkara in Ext. P6 O.P. (G & W) No. 1072/2018, before the rendering of the dismissal verdict by the said court on 05.02.2020. So, the main case projected by the petitioner herein is that a vital document, fully in favour of the petitioner herein, and that too, a judicial verdict by a competent Australian Court, as per Ext. P2, rendered as early as on 9 W.P.(Crl.) No.1137 of 2022 26.01.2018, could not be made available for the consideration of the Family court in Ext. P6 custody petition and that therefore, this Court may examine her plea for writ of habeas corpus and direct that the alleged detenue be produced in the Court and that the custody of the child, now allegedly taken away by R-5 herein, be given to the petitioner herein, etc. 10. It is in the light of these aspects that the petitioner has preferred the instant writ petition (criminal) No. 1137/2022 on 21.11.2022, with the following prayers: - _“i) Issue a writ of habeas corpus, to be issued against the respondents no.1 to 4 to produce the body of the daughter of the petitioner, by name ‘Bethsheba’ who is in the illegal detention of the respondent no.5 to 7, before this Hon’ble Court for setting her free with the petitioner, in the interest of justice._ - _ii) Issue an appropriate writ order of direction commanding the respondents no.1 to 4 to ensure the personal safety and protection of the petitioner and the detenue against the illegal act of the respondent no.5 to 7 and their henchmen, in the interest of justice._ ## _AND_ - _iii) Too pass any such or further orders as the petitioner may seek and this Hon’ble Court deem fit to grant._ - _iv) Dispense with filing of the translation of vernacular documents.”_ 11. When the above case had come up for consideration on 23.11.2020, this Court had passed an order directing the Family Court concerned to give details of the litigative proceedings initiated 10 W.P.(Crl.) No.1137 of 2022 by the above parties in regard to custody issues and matrimonial issues. In that regard, presumably, it may also be noted that the petitioner herein has also got a case that her parents, who were then residing in Thiruvananthapuram, Kerala State, India, had preferred Ext.P8 original petition, O.P.(G&W) No. 437/2021, before the Family Court, Ernakulam District, Kerala State, India, on 17.02.2021, in which R-5 herein has been arrayed as the respondent therein, with the prayer that the custody of the aforesaid minor daughter should be given to the parents of the petitioner, as the petitioner was then said to be abroad. It is also alleged in Ext. P8 proceedings that R-5 herein and the minor daughter were then residing in Ernakulam, Kerala State, India, etc. Ext. P8 was said to be pending as on the date of filing of the present writ petition (criminal) and we need not get into the details of that case, in view of the subsequent developments. 12. Later, this Court admitted the instant writ petition (criminal) on 29.11.2022 and had directed that notices on behalf of official respondents 1 to 4 has been taken by the learned Public Prosecutor and that notices shall be issued to contesting respondents 5 to 7 by special messenger, returnable within three days and it was 11 W.P.(Crl.) No.1137 of 2022 also directed therein that R-3 SHO will ensure the production of the minor alleged detenue (Ms. Bethsheba Meriam Nomy, aged 10 years, D/o the petitioner and R-5), before this Court on 06.12.2022 and should also make available the original passport of the minor child, etc. It was also directed therein that the petitioner herein and R-5 herein should also be present before this Court on the above day. 13. The case was later taken up for consideration on 06.12.2022 and the minor alleged detenue was produced before this Court. Sri.Alexander George, learned Advocate, had entered appearance as counsel for R-5 and had then submitted that he has been instructed to submit by R-5 that, Ext. P2, which is said to be a verdict rendered by the Federal Circuit & Family Court of Australia (Division 2), on 26.01.2018 is a completely forged and false document and that R-5 has never instituted any such proceedings, as in Ext. P2, nor has he been served with any notices/proceedings in that case and further that, the marital relationship between the petitioner and R-5 has already been dissolved by a decree of the Family court and both of them have subsequently re-married and that the abovesaid child is with R-5 since 2018 and there was no 12 W.P.(Crl.) No.1137 of 2022 order, whatsoever, of the Australian Court or any other judicial authority, granting custody of the child to the petitioner herein and custody of the child was always with R-5, etc. 14. Further, the learned counsel appearing for the petitioner then submitted that enquiries by R-5 has revealed that the Federal Circuit & Family Court of Australia (Division 2) is situated in Melbourne, Victoria, Australia. Whereas, the learned counsel appearing for R-5, on the basis of instructions, submitted that earlier, the presently designated Federal Circuit Court & Family Court of Australia (Division 2) was merged into a Single Court by the abovesaid name only since the year 2021 and as on 26.01.2018 (date of the alleged Ext.P2 verdict), the court concerned was nomenclatured as the Family Court of Australia. Further that, the mere aspect that Ext. P2 is produced by the petitioner herein, and styled to have been rendered on 26.01.2018 by the Federal Circuit & Family Court of Australia (Division 2), itself would highly speak out the truth that Ext. P2 document is nothing but a completely forged and falsified document, as even the nomenclature of the said court was not so, as on 26.01.2018. Further, in the light of these aspects, 13 W.P.(Crl.) No.1137 of 2022 the learned Public Prosecutor had also then submitted that the State authorities may not be having the requisite wherewithal and resources to ascertain as to whether Ext. P2 document, said to have been issued by the Australian Court, is a false or a true document and that, this Court may issue necessary directions to the competent authority of the Government of India, in the Ministry of External Affairs, to ascertain from the competent authority of the Australian High Commission as to whether Ext. P2 verdict, produced before this Court by the petitioner herein, is the one which was really rendered on 26.01.2018 by the Federal Circuit & Family Court of Australia, (Division 2), or whether it is a forged document, etc. 15. Since the Union of India in the Ministry of External Affairs was not a formal party in the proceedings, we had, with the consent of all the parties, directed the impleadment of “the Union of India, represented by the Secretary to Government of India, Ministry of External Affairs, South Block, New Delhi-110 001”, as additional respondent No. 8 in the above W.P. (criminal) on that day. On our request Sri. Suvin R. Menon, learned Central Government Counsel (CGC), had then entered appearance on behalf of the Union 14 W.P.(Crl.) No.1137 of 2022 Government. Hence, we had ordered that the learned Central Government Counsel will ensure that necessary steps may be taken, through the competent authority of the Union Government in the Ministry of External Affairs, so that the truthfulness or otherwise of the abovesaid allegations raised by R-5, as to whether or not Ext.P2 is a forged document, is immediately verified and apprised to this Court and that the competent authority of the Union Government in the Ministry of External Affairs may ascertain the factual aspects from the Australian High Commission or such other authorities, so that they can ascertain the truth of the matter from the Australian Court concerned. 16. Accordingly, we had also ordered on 06.12.2022 that the interim custody of the child cannot be granted to the petitioner without ascertaining as to whether or not Ext. P2 is a forged document, etc. Further, we had granted opportunity to the petitioner to interact with the child for a few hours on all Saturdays, till the next posting day, etc. By way of abundant caution, we had also directed that the passport of the above child will also be kept in the safe custody of the Registry of this Court, for the time being. 15 W.P.(Crl.) No.1137 of 2022 17. Later, the case come up for consideration on 16.12.2022 and the learned Central Government Counsel submits that necessary steps are being taken to fully comply with the directions issued by this Court to ascertain as to whether Ext. P2 is a forged document or a true document, etc. and that some more time is required to ascertain the genuineness or otherwise of Ext. P2 document and steps have already been taken by R-8, Union Government in the Ministry of External Affairs through the Indian High Commission or the Consulate concerned in Australia to ascertain the precise factual details from the Australian Court, etc., and had sought for time. Accordingly, we had adjourned the case. 18. Subsequently, the case came up for consideration on 22.12.2022 and on that day Sri. Suvin R. Menon, learned Central Government Counsel appearing on behalf of R-8 (Union of India, represented by Secretary to Government of India in the Ministry of External Affairs), had submitted, on the basis of detailed instructions that, in compliance with this Court’s order dated 06.12.2022 and order dated 16.12.2022, he had sought for instructions from the competent authority of the External Affairs, Ministry of the 16 W.P.(Crl.) No.1137 of 2022 Government of India, who, in turn, had taken steps with the competent Indian Consulate Authority in Australia, to ascertain as to whether Ext. P2 is a genuine document or not and now, the Consul (Consular & Community Affairs), Consulate General of India, St.Kilda Roa, Melbourne, Australia, as per e-mail communication, addressed to the Deputy Solicitor General of India, High Court of Kerala, stated that, after enquiry, the Federal Circuit & Family Court of Australia (Division 2) has informed the above Indian Consular official that, according to the said Australian Court’s records, the filed number (PAC 4725/2017), which appears on the record (which presumably means Ext. P2 herein), does not relate to the party “Jeeva Santhosh” (petitioner herein) nor does it relate to “Nomy Joppen” (R-5 herein), and further that, the Federal Circuit & Family Court of Australia (Division 2) did not commence until 1[st] September, 2021 and that, the copy of the abovesaid document (which presumably means Ext. P-2), is not a judgment or verdict issued by the Federal Circuit & Family Court of Australia (Division No.2) nor the Federal Circuit Court of Australia (as the Court was known prior to 1[st] September, 2021)., etc. Hence, the learned Central Government 17 W.P.(Crl.) No.1137 of 2022 Counsel then submitted, on the basis of instructions furnished by the Indian Consular’s office, on the basis of the information conveyed by the aforesaid Australian Court, after verification of the said court records, that, based on their enquiries with the said Australian Court, it appears that Ext. P-2 is thus not a genuine document. Whereas, the petitioner, who was personally present and the learned counsel appearing for the petitioner submitted that the petitioner would state that Ext. P2 is indeed a genuine document. Accordingly, we ordered on 22.12.2022 that the matter will have to be taken up seriously and reasonable opportunity of being heard should be given to the parties and that the petitioner should deposit an amount of Rs.50,000/(Rupees Fifty thousand only) with the Registry, and obtain receipt within a day. Further, we queried as to whether the petitioner, who claims to be an Australian citizen, will be leaving India immediately and the petitioner, who was personally present, has undertaken before this Court that she would not leave India, without getting the permission of this Court. 19. The order dated 22.12.2022 reads as follows:- _“Sri. Suvin R. Menon, learned Central Government Counsel appearing for R-8 (Union of India, represented by Secretary to Government of India in the Ministry of External Affairs), would submit,_ 18 W.P.(Crl.) No.1137 of 2022 _on the basis of instructions, that, in compliance with this Court's order dated 06.12.2022 and order dated 16.12.2022, he had sought for instructions from the competent authority of the External Affairs, Ministry of the Government of India and had also taken steps with the competent Indian Consulate Authority in Australia, to ascertain as to whether Ext.P-2 is a genuine document and now, the Consul (Consular & Community Affairs), Consulate General of India, St.Kilda Road, Melbourne, Australia has given e-mail communication, addressed to the Dy. Solicitor General of India, High Court of Kerala, stating that, after enquiry, the Federal Circuit & Family Court of Australia (Division 2) has informed the above Indian Consular official that, according to the said Australian Court's records, the file number (PAC 4725/2017), which appears on the record (which means Ext.P-2 herein), does not relate to the party “Jeeva Santhosh” (petitioner herein), nor does it relate to “Nomy Joppen” (R-5 herein) and further that, the Federal Circuit & Family Court of Australia (Division 2), did not commence until 1st September, 2021 and that, the copy of the abovesaid document (which presumably means Ext.P-2 herein), is not a judgment issued by the Federal Circuit & Family Court of Australia (Division 2), nor the Federal Circuit Court of Australia (as the Court was known prior to 1st September, 2022)._ _2. Hence, Sri.Suvin R. Menon, learned Central Government Counsel would submit that the above instructions furnished by the Indian Consular's office concerned in Australia, based on enquiries made directly with the abovesaid Australian Court, it appears that Ext.P-2 is not a genuine document._ _3. The petitioner is personally present and the learned counsel for the petitioner submits that the petitioner would state that Ext.P-2 is indeed a genuine document, etc._ _4. Sri.Suvin R. Menon, learned Central Government Counsel, submits that a written statement on behalf of R-8 will be filed by tomorrow. Now, before proceeding further in the matter, we will have to afford reasonable opportunity to the petitioner in the matter. However, as indicated during the course of the oral observations made by this Court on the previous occasion, if it is found that Ext.P-2 is not a genuine document, then the petitioner will have to pay exemplary cost and the said cost amount should be realised._ _5. Accordingly, it is ordered that the petitioner shall immediately deposit an amount of Rs.50,000/- (Rupees Fifty Thousand only) with the Registry, as per the usual procedure and obtain receipt, which shall be produced before this Court by tomorrow at 11.30 AM. Further, we queried whether the petitioner, who claims to be an Australian citizen, will be leaving India immediately and the petitioner has undertaken before us that she would not leave India, without getting permission of this Court._ _6. The learned Senior Government Pleader may also make_ 19 W.P.(Crl.) No.1137 of 2022 _necessary submissions in the matter, regarding the legal implications of the new factual development._ _List on 23/12/2022.”_ 20. The e-mail communication addressed to the Deputy Solicitor General of India, High Court of Kerala [who is instructed and assisted by Sri. Suvin R. Menon, learned Central Government Counsel (CGC)], are contained in the statement dated 23.12.2022, filed by the Deputy Solicitor General of India, on behalf of R-8, in compliance with the order dated 22.12.2022 and the said statement dated 23.12.2022 reads as follows:- ## _“STATEMENT FILED BY THE DEPUTY SOLICITOR GENERAL OF INDIA ON BEHALF OF 8TH RESPONDENT IN COMPLIANCE OF THE ORDER DATED 22.12.2022 OF THIS HON’BLE COURT_ _1. This Statement is filed on the basis of the instructions received from Consular (Consular & Community Affairs) Consulate General of India, Melbourne._ _2. As per Order dated 06.12.2022, this Hon’ble Court impleaded the answering respondent as additional 8th Respondent and directed to ascertain from the competent authority of the Australian High Commission, etc. as to whether Ext.P2 judgment produced before this Court as one rendered on 26.01.2018 by the Federal Court and Family Court of Australia (Division 2) is true or forged document._ _3. As per the Note Verbale dated 13.12.2022, the Consulate General of India requested the Department of Foreign Affairs and Trade, Australia to ascertain whether the Exhibit P2 document in the above Writ Petition is a forged document. A true copy of the Note Verbale dated 13.12.2022 issued by the Consulate General of India, without enclosures is produced herewith and marked as_ _**Annexure R8(a)** . In response to Annexure R8(a) note verbale, the Protocol office of the Victoria State Office, Department of Foreign Affairs and Trade, Australia, send the following email dated 15.12.2022._ _“Thank you for your email and attachments._ 20 W.P.(Crl.) No.1137 of 2022 _I am seeking advice and will get back to you as soon as possible. In the meantime, you may want to make enquiries directly with the Federal Circuit and Family Court of Australia at Contact us \Federal Circuit and Family Court of Australia (fcfcoa.gov.au)_ _Kind regards_ _Nannette, Protocol Officer, Victoria State Office, Department of Foreign Affairs and Trade”_ _Accordingly, the Consulate of India at Melbourne as per email dated 15.12.2022 requested the Federal Circuit and Family Court of Australia to verify Exhibit P2 document. In response to the said communication, the Federal Circuit and Family Court of Australia send the following email dated 21.12.2022 to the Consulate of India at Melbourne._ _“Good afternoon,_ _I refer to your email below, seeking to verify the attached document “copy of exract”._ _I note that according to the Court’s records, the file number (PAC4725/2017) which appears on the document “copy of extract” does not relate to the party “Jeeva Santhosh”, nor does it relate to “Nomy Joppen”. Furthermore, I note that the Federal Circuit and Family Court of Australia (Division 2) did not commence until 1 September 2021._ _I confirm that the document “copy of exract” is not a judgment issued by the Federal Circuit and Family Court of Australia (Division 2), nor the Federal Circuit Court of Australia (as the Court was known prior to 1 September 2022)._ _Kind regards, Laris Customer Service Federal Circuit and Family Court of Australia”_ _On the basis of he above email, Smt.Anuradha Sundaramurthy, Consul (Consular & Community Affairs) at the Consulate of India at Melbourne, as per email dated 22.12.2022 instructed me that the Federal Circuit and Family Curt of Australia, vide its trailing mail dated 21 December 2022 has conveyed that the document is not a genuine and not issued by them._ _Dated this the 23rd day of December, 2022._ _Sd/-_ _MANU S., Deputy Solicitor General of India, For the 8th Respondent.”_ 21 W.P.(Crl.) No.1137 of 2022 21. Later, the case was taken up for consideration on 23.12.2022. On that day, the learned counsel appearing for the petitioner submitted that Rs.50,000/- (Rupees Fifty thousand only), has already been deposited before the Registry of this Court, for and on behalf of the petitioner, as directed by this Court on 22.12.2022 and receipt dated 22.12.2022 has also been issued by the Registry, evidencing receipt of the abovesaid amount of Rs.50,000/- We had directed the petitioner herein to deposit the abovesaid amount of Rs.50,000/- so that, if it is found that a strong _prima facie_ case is made out to show that Ext. P2 is a forged or falsified document, then cost should be awarded against the petitioner and ensure steps in that regard. 22. Due to paucity of time, as the Court was then to be closed for Christmas holidays, and in view of the request of the parties and to provide reasonable opportunity to both sides, to respond to the new scenario, the case was adjourned to 05.01.2023. 23. Later, the case was taken up for consideration by this Court on 05.01.2023. On that day, Sri.Arun Ashok Iyyani & Smt.Neena James, both Advocates appearing for the petitioner, 22 W.P.(Crl.) No.1137 of 2022 submitted that, in view of the subsequent developments, they are constrained to relinquish their appearance in this case and that, they have already filed their relinquishment memo in this case and also that they have informed the petitioner to engage another counsel of her choice, if she desires so, and that the case files have been returned to her and further that, the petitioner’s husband has pin pointedly informed them that the petitioner has already left to Australia. Further, the learned counsel appearing for the petitioner had also apprised us that, even they were made to believe by the petitioner that Ext. P2 is a genuine document, etc. Accordingly, we had directed the Registry to delete the names of the abovesaid Advocates of the petitioner from the cause list, in case they have filed the relinquishment memo. 24. On that day Sri. Alexander George, learned counsel appearing for R-5 to R-7, had submitted, on the basis of instructions, that R-5 has been advised to immediately move a complaint/petition before the Commissioner of Police, Kochi city, Ernakulam and the State Police Chief, Kerala to register a crime against the petitioner for various offences, including offences as per Secs. 468, 471 of the IPC, 23 W.P.(Crl.) No.1137 of 2022 etc., for having produced a false and forged document, as per Ext.P2, before this Court., since it has been made clear by the 8[th] respondentUnion Government that the competent authority in Australia has informed them that Ext. P2 is not a genuine document and so, it appears to be a falsely fabricated document. The abovesaid submissions of R-5 were then recorded. It was also observed by this Court that the learned counsel appearing for R-5 may then ensure that a copy of the said complaint/petition, so filed by R-5, before the Commissioner of Police, Kochi City, and the 2[nd] respondent-State Police Chief is filed before this Court as an additional document. So also, it was directed that R-5 may ensure that a copy of the afore statement dated 23.12.2022, filed by the Deputy Solicitor General of India, on behalf of the 8[th] respondent-Union Government, may also be annexed along with the complaint/petition to be filed before the Commissioner of Police and the respondent-State Police Chief, Kerala, along with other relevant documents. 25. On 05.01.2023 the petitioner had personally appeared before this Court through video conferencing mode and she submitted that she was then in Australia and that she was 24 W.P.(Crl.) No.1137 of 2022 constrained to leave to Australia as, otherwise, she would have lost her job and further that, her Australian passport is bearing No.PB 3664322 issued by the Australian Government on 06.10.2022, which is current and valid up to 06.10.2032 and that her present address in Australia is “Jeeva Santhosh, 20 Noble Street, Noble Park, Victoria-3174, Australia”, and that her e-mail id is “jeevasanthosh 988 @ gmail.com” and her mobile number in Australia is +61 406 353 464, etc. 26. The Secretary, District Legal Services Authority (DLSA), Ernakulam, had also then given a report, stating that the petitioner has not availed the visitation rights of her child on the previous occasion and that they were put to unnecessary hardships and difficulties, as the visitation, as directed by this Court, was supervised by the DLSA. Accordingly, this Court on 05.01.2023 directed that the earlier interim order passed by this Court on 06.12.2022, to the extent that facilities were made for the visitation of the petitioner with the child is vacated and the original passport of the child was also directed to be given by the Registry to R-5 (father), etc., and we are told that the original passport of the child has already been 25 W.P.(Crl.) No.1137 of 2022 entrusted to the child’s father. On 05.01.2023, we specifically queried to the petitioner as to why she has violated the undertaking given to the Court on 22.12.2022, that she will not leave India without the prior permission of this Court, etc. and to this, she replied, through video conferencing, that she was forced to go to Australia, otherwise she would have lost her job. 27. Further, we specifically queried to the petitioner that the abovesaid stand of the Union Government, after thorough verification from the Australian Court would show that Ext. P2 is not a genuine document and that it is a forged or falsified document, etc., and to this, she has consistently replied that Ext. P2 is indeed a genuine document and that indeed a verdict rendered by the abovesaid court, named in Ext. P2, in Australia, etc. We also queried to her as to the stand of R-5 that in case any such proceedings have been taken by the Australian Court, then certainly notices of such proceedings would be there with the petitioner and R-5 and whether she has any such proceedings with R-5, etc. To this, the petitioner asserted that Ext. P2 is, indeed a genuine and true document, etc. R-5 then asserted that he has not been served even with a single 26 W.P.(Crl.) No.1137 of 2022 notice or proceedings of the aforesaid Australian Court, purportedly named in Ext. P2, etc. 28. Later, the case came up for consideration on 24.01.2023 and R-5, through counsel, had filed I.A. for acceptance of additional documents. We had ordered for the acceptance of the additional documents, produced as Ext.R5(r) complaint/petition dated 11.01.2023, filed before the City Police Commissioner, Ernakulam and Ext.R5(s) complaint/petition dated 11.01.2023 filed by R-5 herein before the Director General of Police, Thiruvananthapuram (State Police Chief, Kerala), in regard to the alleged commission of offences punishable under Secs. 465, 466, 468 & 477 of the IPC, by the writ petitioner, in having produced a non-existent and falsified document, as per Ext.P2, claiming to be a judgment or verdict rendered by the Family Court in Australia as between the abovesaid parties. The abovesaid additional documents were then accepted. Sri. Alexander George, the learned counsel appearing for R-5, had also then, submitted that, pursuant to the complaint filed by the petitioner (R-5) before the abovesaid police authorities, as Exts.R5(r) & R5(s), it is reliably learnt that the Station House Officer, 27 W.P.(Crl.) No.1137 of 2022 Ernakulam Central Police Station, Ernakulam, Kerala State, India, has now registered First Information Report (FIR) in Crime No.193/2023 for offences punishable under Secs. 465, 466, 468 & 471 of the IPC, in which the writ petitioner herein has been arrayed as the sole accused therein and the first informant/de-facto complainant therein is R-5 herein and that short time may be granted to produce a copy of the said FIR before this Court as an additional document. The learned Public Prosecutor was also then requested to get instructions from the competent State Police authorities, etc., as to whether the investigation in the abovesaid crime could be entrusted to a central agency, like the Central Bureau of Investigation (CBI), as the accused therein (petitioner herein) is claimed to be an Australian citizen and as she had gone to Australia, etc. We were also then apprised that the State Government authorities and the other investigating agencies, like the CBI, may have to be impleaded as additional respondents to take the matters to its logical conclusion. Since the petitioner was not interested in that regard, the only option for this Court was to order the suo-moto impleadment of such additional authorities. We also had requested 28 W.P.(Crl.) No.1137 of 2022 the learned Public Prosecutor as well as the learned Central Government Counsel to get instructions on those aspects regarding the impleadment of the additional parties and on other related aspects on the subsequent steps to be taken by this Court, as the petitioner may not be interested in that regard, as it is to conduct the investigation into an alleged act in having produced a falsified document before this Court in this proceedings. 29. Later, the case was taken up for consideration on 31.01.2023. On that day, R-5 had filed I.A. for acceptance of additional document in regard to the FIR in Crime No.193/2023 of Ernakulam Central Police Station, registered against the petitioner, pursuant to the complaint filed by R-5 herein before the Police authorities, as per Exts.R5(r) & R5(s). The said FIR in Crime No.193/2023 of Ernakulam Central Police Station was accepted as an additional document as per Ext.R5(t). Ext.R5(t) is the said FIR in the aforesaid crime, registered for offences punishable under Secs.465, 466, 468 & 471 of the IPC, in which the petitioner herein has been arrayed as the sole accused and the first informant therein is R-5 herein and the gist of the case of the allegations is that the petitioner 29 W.P.(Crl.) No.1137 of 2022 herein has produced a false document, as per Ext.P2 herein, before this Court in this writ petition (criminal) to falsely represent before this Court that the said Ext.P2 verdict is one rendered by an Australian Court, against R-5 herein and in favour of the petitioner herein, in regard to the alleged custody claims of the abovesaid child in question. 30. Later, the case was taken up for consideration on 14.02.2023 and after hearing the parties, we had directed the impleadment of (i) The Commissioner of Police, Kochi City, Ernakulam District, Kerala, (ii) The Station House Officer (SHO), Central Police Station, Ernakulam, (iii) The Central Bureau of Investigation (CBI), represented by its Director, CBI Headquarters, Lodhi Road, Plot No.5B, Jawaharlal Nehru Stadium Marg, CGO Complex, New Delhi-110 003 & (iv) The Head of Branch, AntiCorruption Bureau, Central Bureau of Investigation (CBI), CBI Road, Kathrikadavu, Kaloor, Ernakulam – 683 017, as additional respondents 9 to 12 in this writ petition (criminal). The Registry was directed to make necessary changes in the cause title, so as to amend the cause title to effect the impleadment of the abovesaid additional 30 W.P.(Crl.) No.1137 of 2022 parties. The learned Public Prosecutor has taken notices for the additional respondents 9 & 10 and Sri. S. Manu, learned Deputy Solicitor General of India (who is the authorised counsel of the CBI), has taken notices for additional respondents 11 & 12 (CBI authorities). The learned Public Prosecutor and the learned Central Government Counsel and the learned counsel for the CBI had taken time for getting further instructions. In the immediately previous posting, the petitioner had not cared to enter appearance, either through video conferencing mode or directly in person or through any authorised counsel engaged by her. Last time, she had appeared before us in person was on 05.01.2023, through video conferencing mode, about which reference has been made. Thereafter, the petitioner, for reasons only known to her, has not chosen to personally appear before this Court, either in video conferencing mode or otherwise by engaging a counsel, though her previous counsel has given relinquishment memo, giving her liberty to engage any other counsel of her own choice. As mentioned earlier, the petitioner had given us a solemn undertaking before this Court on 22.12.2022, which has been recorded in para No.5 of the abovesaid 31 W.P.(Crl.) No.1137 of 2022 order dated 22.12.2022 that, she will not leave India without getting permission of this Court, which she has later violated with impunity. 31. At that point of time, we only wanted to give reasonable opportunity to the petitioner to give her version, regarding the stand taken by R-8, that too on the basis of proper enquiries through the Australian Court concerned, that Ext. P2 is not a genuine document. 32. If she had not given such undertaking, we would have directed her to surrender her passport before the Registry of this Court. She has left to Australia without getting the permission of this Court and the only inference that we can make is that she has breached and violated her solemn undertaking, due to dishonest intentions and to get away from the liability of facing the proceedings contemplated by this Court, as it has been reported by high level authorities that Ext. P2 is not a genuine document. 33. Even on the previous occasion her consistent stand was that Ext. P2 is indeed a genuine document, etc. 34. R-8 Union Government is a totally disinterested party and is the Government of a national sovereign State and represents the sovereign Government of the Union of India, who have no 32 W.P.(Crl.) No.1137 of 2022 interest to give any incorrect information about Ext. P2. 35. The competent authorities of R-8 Union Government has made appropriate enquiries and that, in those enquiries, they have been apprised by none other than the Australian Court authorities that Ext. P2 document, as produced herein, is not a genuine document and no such proceedings exist, as between R-5 herein and the petitioner herein, as allegedly shown in Ext. P2. 36. In other words, _prima facie,_ we have strong reasons to believe that Ext. P2 is a forged and falsified document. 37. Ext. P2 has been produced even at the time of filing of this writ petition (criminal). Therefore, there are no issues of _custodia legis_ the facts of this case. 38. If a document was correctly produced and later forged or falsified after it was in the custody of the court, then it would amount to alleged acts of falsification of the document in the custody of the court, which would imply issues of falsification of a document, vis-a-vis, _custodia legis_ . 39. If such issues were there, provisions as in Secs. 195 & 340 of the Code of Criminal Procedure (Cr.P.C.), would have been 33 W.P.(Crl.) No.1137 of 2022 relevant and germane. Sec. 195 of the Cr.P.C. _inter-alia_ deals with offences against public justice and for offences relating to documents given in evidence. Clause (b) (ii) of Sub-Sec. (1) of Sec. 195 of the Cr.P.C _inter-alia_ mandates that no court shall take cognizance of any offence described in Sec. 463, punishable under Secs. 471, 475 or 476 of the Indian Penal Code (IPC), when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, etc., except on a complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. 40. Sec. 340 (i) of the Cr.P.C. stipulates that, when an application is made to it in this behalf or otherwise, any Court is of the opinion that it is expedient, in the interests of justice, that an inquiry should be made into any offence referred to in Sec. 195 (1) (b) of the Cr.P.C., which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after preliminary inquiry, if any, as it 34 W.P.(Crl.) No.1137 of 2022 thinks fit, record a finding to that effect and then make a complaint thereof in writing, and send the complaint to the competent court, concerned, etc. 41. It is now well settled, by the decision of the Constitution Bench of the Apex Court, in the celebrated case, in para No.33 of _**Iqbal Singh Marwah** v._ _**Meenakshi Marwah**_ [(2005) 4 SCC 370] that, Sec. 195(1)(b)(ii) of the Cr.P.C. would be attracted only when the offences enumerated in the said provisions have been committed with reference to a document after it has been produced or given in evidence in a court in any proceedings, i.e., during the time when the document was in _custodia legis_ . In the instant case, no such issues of _custodia legis_ are involved, inasmuch as Ext. P2 document was produced at the time of institution of the present writ petition (criminal) and therefore, the alleged falsification or forgery has been done even prior to the institution of this writ petition (criminal) before this Court. In other words, there are no issues of _custodia legis_ in this case and hence, the restrictive conditions and the special procedure, envisaged in Sec. 195 of the Cr.P.C., read with Sec.340 of the Cr.P.C., are not involved. So long as the offences are 35 W.P.(Crl.) No.1137 of 2022 cognizable offences as per Cr.P.C., then the competent Police authorities have the jurisdiction to investigate into those offences, in accordance with the provisions contained in the Cr.P.C. 42. The offences alleged, as per Exts. R5(t) FIR, against the petitioner are those punishable under Secs. 465, 466, 468 & 471 of the I.P.C., and there is no dispute that all those offences are cognizable. 43. It is the well settled legal position that production of false and forged documents before a court of law would amount to defiling and polluting the streams of justice. 44. When false and forged documents are produced before a Constitutional Court, like this Court, then certainly, there will be implications of not only criminal forgery, falsification of document, etc., but also implications of criminal contempt of court, for having produced such false documents before a court of law and thus, defiling the streams of justice and obstructing and interfering with the due administration of justice of the court. 45. In the instant case, there could be various options for this Court. The petitioner has violated her undertaking, given before this 36 W.P.(Crl.) No.1137 of 2022 Court that she will not leave India without getting the prior permission of this Court. 46. So also, production of a false and forged document may _prima-facie_ amount to criminal contempt of court. But, an inquiry may have to be conducted by this Court to establish convincingly that Ext.P2 is indeed a forged and falsified document. The petitioner, who is an Australian citizen, has now left India, violating the undertaking given before this Court. This Court may not have any effective machinery except, otherwise, than through the competent Police authorities and other Central Agencies, like the CBI, to ascertain these factual aspects from the court in Australia. Taking such steps may be troublesome, at this stage. But that does not mean that a person like the petitioner, who has, _prima facie_ produced a false and forged document should escape from the liability of the same, as that would send a totally wrong message to litigants. Moreover, tendencies of this nature, which were quite rare about 2 or 3 decades back, are getting strong and such efforts of delinquent litigants polluting the streams of justice should be dealt with sternly and in accordance with law. 37 W.P.(Crl.) No.1137 of 2022 47. Given the constraints of the factual scenario in this case is that the petitioner claims to be an Australian citizen and she has now left India and is now in Australia and due to the abovesaid limitations, the optimally effective option before this Court is to ensure that the investigation to the abovesaid Ext. R5(t) crime is taken to its logical conclusion. 48. The Public Prosecutor, appearing for the State authorities, had submitted that the State Crime Branch could be entrusted with the investigation. 49. After hearing the parties we are of the view that, since the accused in the crime/petitioner herein is claiming to be an Australian citizen and she has left India and as she is now based in Australia and as various efforts have been taken to meticulously collect the details from the Australian Court, etc., the involvement of the international police (Interpol) may also be required appropriately to interface between the Indian Police investigation team and the Australian authorities, etc. Further, various authorities in Australia may be involved in this case, including the Australian Court, and so entrustment of the investigation to the State Police Agency may not 38 W.P.(Crl.) No.1137 of 2022 be desirable for effective results. Moreover, it is a matter of prime concern for this Court that the majesty of Justice administration of this Court is upheld so that such actions of allegedly polluting the streams of justice is dealt with sternly and it is more in the interest of the judiciary that the truth of the matter is fully revealed, so that the matter is dealt with truthfully and sternly. Hence, we are of the strong view that investigation by the State Police Agency may not suffice and that this is a fit case, where investigation can be entrusted to a central agency, like the respondent-Central Bureau of Investigation. This we say so, as the respondent-Central Bureau Investigation is the prime central agency for investigation and it will have all necessary wherewithal to conduct investigation in a foreign country, like Australia and to have necessary interface with various authorities in Australia and also to deal with the issues of the accused/petitioner herein, who is claiming to be an Australian citizen and who is now based in Australia. 50. The constitutional powers of this Court, for entrusting the investigation to a central agency, like the CBI, has been dealt with in decisions of the Apex Court, including the celebrated decision of the 39 W.P.(Crl.) No.1137 of 2022 Constitution Bench of the Apex Court in the case in _**State of West Bengal & Others** v._ _**Committee for Protection of**_ _**Democratic Rights**_ [(2010) 3 SCC 571]. Sub para (iii), (v), (vi) & (vii) of para 68 and para 69 of the aforesaid Constitution Bench verdict reads as follows:- _“_ _**para 68.** Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows:_ _(i) xxxx_ _(ii) xxx._ _(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of “the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review”._ _(iv) xxxx_ _(v) Restriction on Parliament by the Constitution and restriction on the executive by Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Articles 32 and 226 of the Constitution._ _(vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2-A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, the Court would be precluded from exercising the same power which the Union_ 40 W.P.(Crl.) No.1137 of 2022 _could exercise in terms of the provisions of the statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the Court fails to grant relief, it would be failing in its constitutional duty._ _(vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure._ _69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.”_ 51. Hence, it is by now, well settled that a direction could be issued by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, to transfer the case to the Central Bureau of Investigation(CBI), to investigate a cognizable offence, without the consent of the State Government and the same will not be an infringement of the federal structure of the Constitution nor will it violate the doctrine of separation of powers and shall be valid in law, etc. 41 W.P.(Crl.) No.1137 of 2022 52. Now, Ext. R5(t) FIR in Crime No.139/2023 of Ernakulam Central Police Station, has already been registered on 18.01.2023, for the aforementioned offences in which the petitioner herein has been arrayed as the sole accused therein. 53. Accordingly, in the interest of justice, it is ordered that the investigation in Ext. R5(t) FIR in Crime No. 139/2023 of Ernakulam Central Police Station, shall forthwith stand entrusted to the 11[th] & 12[th] respondents-CBI authorities, and that the competent police authorities, including the respondent-State Police Chief, Kerala, the respondent-Commissioner of Police, Ernakulam, the respondent-SHO, Ernakulam Town Police Station, etc., will immediately transfer the entire records in relation to Ext. R5(t) FIR in Crime No. 139/2023 of Ernakulam Central Police Station, to the 11[th] & 12[th] respondents-CBI authorities, forthwith. 54. The respondents 11 & 12 (CBI authorities) will re-register or re-number the Crime, as per their procedure, and will commence investigation in this case, without any further delay, and take the matter to its logical conclusion, in accordance with law. We are not now, stipulating any fixed or inflexible time limit for completing the 42 W.P.(Crl.) No.1137 of 2022 investigation, as a lot of steps will have to be made by the respondent-CBI for completion of the investigation. However, taking note of the fact that the matter is one concerning the administration of justice, to be rendered by this Court, it is observed that the respondent-CBI authorities may sincerely endeavour to complete the investigation, without much delay, preferably within a period of 10 months or 12 months, if that is feasible. 55. Since the matter is one concerning the interest of the administration of justice, it is also made clear that the respondentCBI authorities will be at liberty to file reports before this Court, if any further clarifications/directions are required in the matter and also give necessary report, if time extension is inevitable. 56. If any such reports are filed by the respondent-CBI authorities, then the Registry will place such reports on the judicial side of this Court in this proceedings, so that the matter can be considered and orders can be passed, in accordance with law. Further, the competent authority of the 1[st] respondent-State Government in the Home department as well as the 2[nd] respondentDirector General of Police, Kerala/State Police Chief, Kerala and the 43 W.P.(Crl.) No.1137 of 2022 additional 9[th] respondent-Commissioner of Police, Kochi City, Ernakulam, will provide all infrastructural facilities and logistical support to the additional respondents 11 & 12 (CBI authorities) for effective and proper investigation in the case and any such requests made by the officials of the respondent-CBI authority shall be duly acted upon by the 1[st] respondent-State authorities, as above and taking note of the fact that the nature of the crime to be investigated has direct impact on the administration of justice to be rendered by this Court. Further, it is also made clear that the issues as to whether other contempt of court proceedings will have to be initiated against the petitioner herein will be decided at the appropriate stage, later, after knowing about the outcome of the investigation process. This is another reason for issuing the above direction to the respondent-CBI to file reports, at the appropriate stage. Further, the petitioner is ordered to pay a cost of Rs.50,000/(Rupees Fifty thousand only) and the amount of Rs.50,000/(Rupees Fifty thousand only), already deposited by her on 22.12.2022, will stand appropriated towards the said costs. The said costs amount shall be remitted by the Registry to the account of the 44 W.P.(Crl.) No.1137 of 2022 Mediation Centre, attached to this Court. With these observations and directions, the above writ petition (criminal) will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **SOPHY THOMAS, JUDGE** Skk//31032023 45 W.P.(Crl.) No.1137 of 2022 ## **`APPENDIX OF WP(CRL.) 1137/2022`** ## `PETITIONER EXHIBITS` - `Exhibit P1 A TRUE COPY OF THE BIRTH CERTIFICATE ISSUED FROM REGISTRY OF BIRTHS, DEATHS AND MARRIAGES MELBOURNE DATED 14-02-2013` - `Exhibit P2 A TRUE COPY OF THE ORDER IN FILE NO. PAC 4725 OF 2017 ON THE FILE OF FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA, (DIVISION 2) DATED 26-01-2018` - `Exhibit P3 A TRUE COPY OF INTERIM INTERVENTION ORDER IN CASE NO. H10863611 ON THE FILE OF DANDENONG MAGISTRATE'S COURT AT VICTORIA DATED 30-03-2017.` - `Exhibit P4 A TRUE COPY OF THE INTERVENTION ORDER IN CASE NO. H10863611 ON THE FILE OF DANDENONG MAGISTRATE'S COURT AT VICTORIA DATED 11-10-2017` - `Exhibit P5 A TRUE COPY OF THE LEGAL OPINION RECEIVED BY THE PETITIONER FROM INTERNATIONAL SOCIAL SERVICE AUSTRALIA DATED 06-04-2018` - `Exhibit P6 A TRUE COPY OF THE ORIGINAL PETITION IN O.P (G&W) NO. 1072/2018 ON THE FILE OF FAMILY COURT KOTTARAKKARA DATED 06-082018` - `Exhibit P7 A TRUE COPY OF THE ORDER IN I.A NO.2176 OF 2018 IN O.P (G&W) NO. 1072/2018 ON THE FILE OF FAMILY COURT KOTTARAKKARA DATED 14-12-2018` - `Exhibit P8 A TRUE COPY OF THE ORIGINAL PETITION IN O.P (G&W) NO. 473 OF 2021 ON THE FILE OF FAMILY COURT ERNAKULAM DATED 17-02-2021` - `Exhibit P9 A COMPACT DISC CONTAINING THE VIDEO CLIPS AND AUDIO CLIPS OF PETITIONER AND DETENUE DATED NIL.` - `Exhibit P10 A TRUE COPY OF THE PARENTING PLAN` - `EXECUTED BETWEEN THE PETITIONER AND THE 5TH RESPONDENT BEFORE THE SPRINGVALE MONASH LEGAL SERVICE INC, VICTORIA, AUSTRALIA DATED 13-06-2017` - `Exhibit P11 A TRUE COPY OF THE COURT ORDER IN CASE` 46 ## W.P.(Crl.) No.1137 of 2022 ``` NO. H10863611 ON THE FILE OF DANDENONG MAGISTRATE'S COURT AT VICTORIA DATED 15- 01-2018. ``` ||`NO. H10863611 ON THE FILE OF DANDENONG`<br>`MAGISTRATE'S COURT AT VICTORIA DATED 15-`<br>`01-2018.`| |---|---| |`Exhibit P12`|`A TRUE COPY OF THE FIR AND FIS IN CRIME`| ||`NO. 1395/2021 OF ERNAKULAM TOWN SOUTH`| ||`POLICE STATION DATED 10-11-2021`| |`Exhibit P13`|`A TRUE COPY OF THE FIR IN CRIME NO.`| ||`1512/2022 OF ERNAKULAM CENTRAL POLICE`| ||`STATION DATED 08-11-2022`| |`Exhibit P14`|`A TRUE COPY OF THE POLICE COMPLAINT`| ||`FILED BY THE PETITIONER BEFORE THE`| ||`DEPUTY SUPERINTENDENT OF POLICE KOLLAM`| ||`RURAL POLICE DATED 08-11-2018.`| |`Exhibit P15`|`A TRUE COPY OF THE POLICE COMPLAINT`| ||`FILED BY THE PETITIONER BEFORE THE`| ||`DISTRICT POLICE CHIEF DATED 15-11-2018`| |`Exhibit P16`|`A TRUE COPY OF THE CASE STATUS OF O.P.`| ||`(G&W) NO. 1072 OF 2018 ON THE FILE OF`| ||`FAMILY COURT KOTTARAKKARA OBTAINED FROM`| ||`E-COURTS WEBSITE DATED 26-11-2022`| |`Exhibit P17`|`A TRUE COPY OF THE PETITION IN I.A`| ||`NO.2176 OF 2018 IN O.P (G&W) NO.`| ||`1072/2018 ON THE FILE OF FAMILY COURT`| ||`KOTTARAKKARA DATED 20-08-2018`| |`Exhibit P18`|`A TRUE COPY OF THE COUNTER IN I.A.`| ||`NO.2176 OF 2018 IN O.P (G&W)`| ||`NO.1072/2018 ON THE FILE OF FAMILY COURT`| ||`KOTTARAKKARA DATED 30.11.2018`| |`Exhibit P19`|`A TRUE COPY OF THE ORDER IN I.A NO.2176`| ||`OF 2018 IN O.P (G&W) NO.1072/2018 ON THE`| ||`FILE OF FAMILY COURT KOTTARAKKARA DATED`| ||`14-12-2018`| |`Exhibit P20`|`A TRUE COPY OF THE ORDER IN O.P (F.C)`| ||`NO.601 OF 2018 ON THE FILE OF HON'BLE`| ||`HIGH COURT OF KERALA DATED 08-11-2018`| |`Exhibit P21`|`A TRUE COPY OF THE PETITION IN O.P(DIV)`| ||`NO.465/2018 ON THE FILE OF FAMILY COURT`| ||`KOTTARAKKARA DATED 06-04-2018`| |`Exhibit P22`|`A TRUE COPY OF THE OBJECTION WITH`| ||`COUNTER CLAIM IN O.P (DIV) NO.465/2018`| ||`ON THE FILE OF FAMILY COURT KOTTARAKKARA`| ||`DATED 01-08-2018`| 47 W.P.(Crl.) No.1137 of 2022 - `Exhibit P23 A TRUE COPY OF THE PETITION IN I.A. NO. 1966/2018 IN O.P (DIV)NO.465/2018 ON THE FILE OF FAMILY COURT KOTTARAKKARA DATED 01-08-2018` - `Exhibit P24 A TRUE COPY OF THE COUNTER IN I.A. NO.1966/2018 IN O.P (DIV)NO.465/2018 ON THE FILE OF FAMILY COURT KOTTARAKKARA DATED 04-08-2018` - `Exhibit P25 A TRUE COPY OF THE ORDER IN I.A. NO.1966/2018 IN O.P (DIV)NO.465/2018 ON THE FILE OF FAMILY COURT KOTTARAKKARA DATED 02-11-2018` - `Exhibit P26 A TRUE COPY OF THE PETITION IN I.A NO.2067/2018 IN O.P (DIV) NO.465/2018 ON THE FILE OF FAMILY COURT KOTTARAKKARA DATED 09-08-2018` - `Exhibit P27 A TRUE COPY OF THE PETITION IN I.A NO. 2084/2018 IN O.P (DIV) NO.465/2018 ON THE FILE OF FAMILY COURT KOTTARAKKARA DATED 13-08-2018` - `Exhibit P28 A TRUE COPY OF THE COUNTER IN I.A NO. 2084/2018 IN O.P (DIV)NO.465/2018 ON THE FILE OF FAMILY COURT KOTTARAKKARA DATED 20-08-2018` - `Exhibit P29 A TRUE COPY OF THE ORDER IN O.P (F.C) NO.479 OF 2018 ON THE FILE OF HON'BLE HIGH COURT OF KERALA DATED 16-08-2018` - `Exhibit P30 A TRUE COPY OF THE ORDER IN O.P (DIV) NO.465/2018 ON THE FILE OF FAMILY COURT KOTTARAKKARA DATED 28-02-2020` - `Exhibit P31 A TRUE COPY OF THE PETITION IN O.P NO. 1099/2018 ON THE FILE OF FAMILY COURT KOTTARAKKARA DATED 09-08-2018` - `Exhibit P32 A TRUE COPY OF A PHOTO PRODUCED BY THE 5TH RESPONDENT ALLEGING THE LESBIAN RELATIONSHIP OF THE PETITIONER IN O.P (G&W) NO.473/2018 DATED NIL` - `Exhibit P33 A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 5TH RESPONDENT IN O.P (G&W) NO. 473/2021 DATED NIL` - `Exhibit P34 A TRUE COPY OF THE MARRIAGE CERTIFICATE OF 5TH REPONDENT DATED 24-08-2019` 48 W.P.(Crl.) No.1137 of 2022 - `Exhibit P35 A TRUE COPY OF THE MARRIAGE CERTIFICATE OF PETITIONER DATED 16-09-2019` - `Exhibit P36 A TRUE COPY OF MAIL COMMUNICATION BY THE PETITIONER WITH VICTORIA POLICE DATED 23-11-2022` - `Exhibit P37 A TRUE COPY OF MAIL COMMUNICATION BY THE VICTORIA POLICE WITH THE PETITIONER DATED 24-11-2022` - `Exhibit P38 A TRUE COPY OF COMPLAINT FILED BY THE PETITIONER BEFORE THE AUSTRALIAN FEDERAL POLICE DATED 24-11-2022` - `Exhibit P39 A TRUE COPY OF REPLY RECEIVED FROM THE AUSTRALIAN FEDERAL POLICE DATED 24-112022` - `Exhibit P40 A TRUE COPY OF EMAIL RECEIVED FROM FMC MEDIATION AND COUNSELLING, VIC ALONG WITH ATTACHMENT DATED 20-04-2017` ## `RESPONDENT EXHIBITS` - `Exhibit R5(a) The true copy of the affidavit sent by Mr.Jagadeep S. Jassar, Australian Legal Practitioner, Melbourne on 5.12.2022 along with judgment passed in PAC 3726/2021 dt.28.8.2021 by the Federal Circuit and Family Court of Australia` - `Exhibit R5(b) The true copy of the website details obtained by the petitioner in respect of Justice William Alstergren` - `Exhibit R5(c) The true copy of the e-mail sent to the Federal Circuit and Family Court of Australia on 5.12.2022` - `Exhibit R5(d) The true copy of the reply sent by the Federal Circuit and Family Court of Australia dated 5.12.2022` - `Exhibit R5(e) The true copy of the information in respect of the Family Court at Australia received from the official site` - `Exhibit R5(f) The true copy of the rejection order issued by the Department of Immigration and Border protection dated 22/6/2016` - `Exhibit R5(h) The true copy of the order passed in IA 1966/2018 in OP 465/2018 passed by the` 49 ## W.P.(Crl.) No.1137 of 2022 - `Family Court Kottarakara dated 2/11/2018` - `Exhibit R5(g) The true copy of the order passed in OPFC NO.479/2018 by the Hon'ble High Court of Kerala dated 16.8.2018` ``` Exhibit R5(i)The true copy of of the order passed in OP(Div) 465/2018 dated 28.02.2020 ``` - `Exhibit R5(j) The true copy of the order passed in I.A 2176/2018 in OP (G and W) No.1072/2018 dated 14.12.2018` - `Exhibit R5(k) The true copy of OP No.473/2021 Exhibit R5(l) True copy of the IA No.3277/2022 in OP No.473/2021` ``` Exhibit R5(m)The true copy of the medical certificate issued by the Welcare Hospital dated 12/11/2022 ``` ``` Exhibit R5(n)True copy of the complaint filed by the petitioner before the Circle Inspector of Police, Central Police station dt. 8.11. 2022 ``` - `Exhibit R5(o) True copy of the complaint filed by the fifth respondent before the Commissioner of Police, Ernakulam dt. 18.11.2022` ``` Exhibit R5(p) ``` ``` Exhibit R5(q) ``` ``` Exhibit R5(r) ``` ``` Exhibit R5(s) ``` ``` Exhibit R5(t) ``` - `The true copy of the FIR in Crime No.1716/2022 of Central Police station dated 29.11.2022` - `The true copy of the advertisement through Christian Matrimony dated 24.8.2021` - `THE TRUE OFFICE COPY OF THE COMPLAINT DATED 11.1.2023 FILED BEFORE THE CITY POLICE COMMISSIONER, ERNAKULAM` - `THE TRUE COPY OF THE COMPLAINT DATED 11.1.2023 FILED BEFORE THE SECOND RESPONDENT/ DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM` ``` THE TRUE COPY OF THE FIR IN CRIME NO. 193/2023 DATED 18.1.2023 REGISTERED BY ERNAKULAM CENTRAL POLICE. ```