COMMONORDER As the petitioner and respondents are common in both petitions and the same question is raised for

consideration in both, they can be disposed of by a common order. 2.In these two petitions, the petitioner challenges action of the 2nd respondent in (i)issuing a letter dated 16.06.2007 calling upon the petitioner who is in America to attend enquiry on the complaint preferred by his since divorced wife Latha Seshadri/ 3rd respondent. (ii)addressing a letter to the Consul General of India, New York Consulate General of India, America seeking deportation to India of the petitioner. 3.The brief background of the case is as follows: The petitioner and his then wife/3rd respondent were staying together at the United States of America and had been separated for a period of over two years. The custody of their minor child was with the 3rd respondent. The petitioner had moved the Court of Common Pleas, Division at Domestic Relations, Cuyahoga County, Ohio for divorce. Visitation rights were granted to the petitioner in such proceedings and the petitioner also was directed to effect payment towards the care of the minor child. The 3rd respondent has filed an application in the said Court seeking permission to temporarily leave the United States which was rejected by such Court. On the complaint of the father of the 3rd respondent informing that she had been subjected to harassment by the petitioner and that she and her son were prevented from coming to India, the 2nd respondent had issued the letters which are now under challenge. 4.It is not in dispute that the 2nd respondent has not registered a FIR on the complaint received from the father of the 3rd respondent. The challenge to the action of 2nd respondent is that he has no authority whatsoever to issue the communications when he has not so much as registered a FIR in respect of the matter. In support of this contention, strong reliance is placed on the decision of this Court in Prakash Transports and 6 others v. The Inspector of Police, Central Crime Branch, Salem 2004 (1) CTC 130 wherein it was observed as follows: "it is not understandable as to how he should issue summons, since under Section 160, Cr.P.C., summons could be issued by any police officer making an investigation under that Chapter, which means that investigation is a sine qua non for issuing summons and the investigation can be conducted only in connection with the crime registered in terms of Section 154, Cr.P.C. Since there is no crime registered in terms of Section 154, Cr.P.C., no summons can be issued under Section 160, Cr.P.C., summoning a person to appear before the officer. As the summons summoning the petitioners, issued by the officer, is without jurisdiction, it is quashed." 5.Referring to the above decision, Mr.A.Ramesh, learned Senior counsel submitted that the scheme of the Criminal Procedure Code requires an investigating officer to conduct himself in keeping therewith. The terms enquiry and investigation stood defined in the code under Section 2 (g) and (h). Section 2 (g) and (h) reads as follows: "(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;

(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf" 6.Mr.A.Ramesh, learned Senior counsel relied on the decision Sandeep Rammilan Shuka v. The State of Maharashtra 2009 (1) MhLj97, wherein it was observed as follows: "in our considered view the following principles can be culled out as correct exposition of law: (a)The expression "shall" appearing in Section 154 of the Code of Criminal Procedure is mandatory. The Section places an 'absolute duty' on the part of the 'officer in charge of a police station' to record information and place substance thereof in the prescribed book, where the information supplied or brought to his notice shows commission of a cognizable offence. (b)As the law does not specifically prohibit conducting of a limited preliminary inquiry, preregistration of FIR in exceptional and rare cases by the officer in charge of a police station, he may penultimately thus enter upon a preliminary inquiry in relation to information supplied of commission of a cognizable offence but only and only upon making due entry in the Daily Diary/Station Diary/ Roznamachar instantaneously with reasons as well as the need for adopting such a course of action. Such inquiry should be completed expeditiously and in any case not later than two days. Thereafter, the FIR should be recorded in the prescribed register and/or the officer should take any other recourse permissible to him strictly in accordance with the provisions of the Code of Criminal Procedure under which he is empowered to investigate. Such cases can be illustrated by giving an example i.e. when the information received in regard to commission of a cognizable offence would patently cause absurd results or report of happening of events, authenticity of which ex facie is extremely doubtful. (c)The law inescapably requires the police officer to register the information (FIR) received by him in relation to commission of a cognizable offence. Under the Scheme of the Code, no choice is vested in the police officer between recording or not recording the information received. The concerned officer would aptly take recourse to Clause (a) as a normal rule while could adopt the course of action as stated in Clause (b) above as an exceptional and rare case." 7.The provisions of Chapter 12 of the Criminal Procedure Code informs the nature of cases which the police officer could register a case and the manner in which the same was to be conducted. A police official such as the 2nd respondent was duty bound to follow the procedure envisaged in the statute and it would not open for him to conduct himself in any manner he pleased. That a person/accused would not abide by the dictates of a police official unless he resorted to such actions as taken by the 2nd respondent which are now under challenge, would not be an answer for abject disregard and non-compliance with the provisions of the Criminal Procedure Code. 8.Section 166 A of the Criminal Procedure Code reads as follows: "166-A. Letter of request to competent authority for investigation in a country or place outside India.-

(1)Notwithstanding anything contained in this Code, if, in the course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a Court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the Court issuing such letter. (2)The letter of request shall be transmitted in such manner as the Central Government may specify in this behalf. (3)Every statement recorded or document or thing received under sub-section (1) shall be deemed to be the evidence collected during the course of investigation under this Chapter." 9.The proper course which the 2nd respondent ought to have been adopted was to register a case and in the course of investigation thereon, resorted to the provisions of Section 166-A, if felt appropriate or deemed necessary. The action of the 2nd respondent which are complained of by the petitioner amounts to an abuse of process and hence, both quash petitions ought to be allowed. 10.Mr.B.Kumar, learned Senior counsel appearing for the 3rd respondent would submit that it was open to the 2nd respondent to conduct a preliminary enquiry before registration of a case and that was what has been done in the instant case. It was the accepted position in law as held by the Honourable Apex Court. The learned Senior counsel drew the attention of this Court to the oft-quoted decision in Lord Chancellor (Viscount Simon), Lords Porter, Simonds and Goddard and Sir Madhavan Nair v. Khwaja Nazir Ahmad AIR (32) 1945 Privy Council 18 as also decisions in State of West Bengal and others v. Sampat Lal and others AIR 1985 SC 195 and M.C.Abraham and another v. State of Maharashtra and others (2003) 2 Supreme Court Cases 649 wherein the 1st cited decision had been relied upon with approval. The learned Senior counsel stressed that investigation was the power of the police and this Court in exercise of inherent powers under Section 482 Cr.P.C would not trample thereupon or interfere therewith. The learned Senior counsel also touched upon Section 4 IPC and Section 188 Cr.P.C to inform that the provisions of IPC would apply to any offence committed by any citizen of India within or beyond India and the requirement of sanction of the Central Government for prosecution envisaged under Section 188 Cr.P.C in respect of offences committed outside India would apply only at the stage of enquiry or trial and not be a bar to taking cognizance of an offence. Reliance also is placed on the decisions in Remia and another v. Sub-Inspector of police, Tanur and others 1993 CRL L.J. 1098 and Vijaya Saradhi Vajja v. Devi Sriroopa Madapati and another 2007 (4) Crimes 74 (A.P.) in this regard. 11.The learned Senior counsel would submit that the very separation agreement between the petitioner and the 3rd respondent specifically had acknowledged the pendency of litigation in India between the wife and husband and his family and that the agreement did not affect the said litigation which would be resolved by Indian Courts. The learned Senior counsel would inform that merely because a marriage had ended in divorce, the offence complained of could not be

said to have been wiped out. The further submission of the learned Senior counsel is that even if there be flaws in the process of investigation, that would not be a ground for exercise of power under Section 482 Cr.P.C. He placed reliance on the judgment in Om Hemrajani v. State of U.P. and another (2004) 48 All Cri C 151. Paragraphs 14 to 17 of the said judgment reads as follows: "14.The aforesaid decisions were referred to and relied upon in Emperor v. Vinayak Damodar Savarkar [1910 (53) ILR 223]. The contention that the accused is charged before a Magistrate with an offence under the Penal Code and was brought there illegally from a foreign country was rejected. An illustration was given in that a man commits a crime, say murder, in a country but he escapes to some other country before he is apprehended, the Police finding him in some other country, brings him to England and produces him before a Magistrate. It would not be open to the Magistrate to refuse to commit him. The Court held that "if he were brought here for trial, it would not be a plea to the jurisdiction of the Court that he had escaped from justice, and that by some illegal means he had been brought back". 15.The last decision on interpretation of Section 188 is of Justice Vivian Bose in Sahebrao Bajirao v. Suryabhan Ziblaji & Ors., [AIR 1948 Nag 251]. The question posed was as to who is to do the 'finding'. Learned Judge held that the word 'found' in Section 188 means found by the Court at the time when the matter comes up for tiral, that is to say, any Court which is otherwise competent to try the offence can take seisin the moment the accused appears in its presence. How the accused gets there is immaterial. It does not matter whether he comes voluntarily or in answer to summons or under illegal arrest. It is enough that the Court should find him present when it comes to take up the matter. 16.In our opinion, the law has been correctly enunciated by in the aforesaid case. The scheme underlying Section 188 is to dispel any objection or plea of want of jurisdiction at the behest of a fugitive who has committed an offence in any other country. If such a person is found anywhere in India, the offence can be inquired into and tired by any Court that may be approached by the victim. The victim who has suffered at the hands of the accused on a foreigh land can complain about the offence to a Court, otherwise competent, which he may find convenient. The convenience is of the victim and not that of the accused. It is not the requirement of Section 188 that the victim shall state in the complaint as to which place the accused may be found. It is enough to allege the accused may be found in India. The Court where the complaint may be filed and the accused either appears voluntarily pursuant to issue of process or is brought before it involuntarily in execution of warrants, would be the competent Court within the meaning of Section 188 of the Code as that Court would find the accused before him when he appears. The finding has to be by the Court. It has neither to be by the complainant nor by the Police. The section deems the offence to be committed within the jurisdiction of the Court where the accused may be found. 17.It is correct that as a result of the aforesaid interpretation, it is possible for a complainant to file a complaint against an accused in any Court in the country. But then we cannot compare the question of convenience of the accused at the cost of victim's convenience. Between the two, the convenience of the latter has to prevail. Regarding the abuse of such wide option to the victim, there are enough provisions in the Code for redressal of any particular abuse. Whether a particular case is an abuse of not would depend on its own facts. In view of the aforesaid, the Special Leave Petition is dismissed."

12.Placing reliance on the above, it is submitted that it was open to the 2nd respondent to bring or to have the petitioner brought before him in any manner and if the petitioner was so brought even without sanction of law still the same could not be complained of. As a final submission it was stated that the petitioner had not subjected himself to the jurisdiction of this Court and as such he was not entitled to any relief under exercise of inherent powers of this Court. Reliance has been placed on the decisions in Iqbal Mohammed Memon v. The State of Maharashtra 1996(1) Crimes 383 (H.C.) and Shafi and another v. State of Kerala 2003 Crl.L.J.3612. 13.It also has been pointed out that the petitioner has moved for similar relief in Crl.O.P.No.19773 of 2007 and having withdrawn the same had not informed in the present petition. On impleading petition moved by the 3rd respondent having been allowed by this Court, she has come on record. 14.The learned Senior counsel further submitted that the power requiring the attendance of a person was not traceable solely to Section 162 Cr.P.C. 15.I have considered the rival submissions and perused the materials available on record. 16.It is only in a case where due and proper investigation was in progress in keeping with the provisions of the Criminal Procedure Code that this Court would in exercise of its inherent powers under Section 482 Cr.P.C. not interfere therewith. Not to so interfere in a case, wherein it is found that a police official was acting way beyond his jurisdictional powers would be granting a license to such police official to act against the provisions of law. I find myself in total agreement with the decision of this Court in Prakash Transports and 6 others v. The Inspector of Police, Central Crime Branch, Salem 2004 (1) CTC 130. A proper course for the 2nd respondent to have adopted would have been to register a case and proceed under Section 166-A Cr.P.C., if the presence of the petitioner was felt necessary in the facts of the case. There is an ocean of difference between the Court looking into materials gathered by means which are not lawful and the Court allowing materials to be gathered through a course which is illegal. The first is understandable and acceptable, the second is not. The contention regarding the petitioner having not subjected himself to the jurisdiction of this Court and by placing reliance on decisions in Iqbal Mohammed Memon v. The State of Maharashtra 1996(1) Crimes 383 (H.C.) and Shafi and another v. State of Kerala 2003 Crl.L.J.3612 is unfounded. In the decision first cited, the Court was dealing with a case of an absconding accused against whom a Non-bailable Warrant was pending. The second again was a case of accused absconding. Such is not a case here. This Court also finds the explanation offered by Mr.A.Ramesh, learned Senior counsel appearing for the petitioner viz., that in Crl.O.P.19773 of 2007, the notice issued by the 2nd respondent was challenged, the same was withdrawn and by way of the present Criminal Original Petitions both the C.T.SELVAM, J. gm notice dated 16.06.2007 as also the letter addressed to Consul General of India, New York Consulate General of India have been challenged, acceptable.

17.This Court is of the considered opinion that the procedure adopted by the 2nd respondent without so much as registering a case is totally unwarranted and opposed to law. Accordingly, these Criminal Original Petitions shall stand allowed. The letter dated 16.06.2007 issued to the petitioner and the letter dated 16.06.2007 issued to the Consul General of India, New York Consulate General of India, 3, East, 6th Street, Newyork, NY 10021 by the 2nd respondent shall stand quashed. 19.03.2010 Index:yes/no Internet:yes/no gm To 1.The Commissioner of Police, Egmore, Chennai. 2.Office of the Assistant Commissioner of Police Anti-Dowry Cell, All Woman Police Station, Thousand Lights, Chennai 600 006. 3.The Public Prosecutor, High Court, Madras 600 104.