Sunday, August 1, 2010

Delhi HC -NCW to compensate for harassing husband by initiating illegal LOC criminal proceedings. NCW not empowered to initiate criminal proceedings

Writ Petition (Civil) No. 10180/2009                                                               Page 1 of 15
         W.P.(C) 10180/2009
  VIKRAM SHARMA & ORS                          ..... Petitioners
Through Mr. Abhay Singh with 
Ms. Yasmin Zafar, Advocate 
  UNION OF INDIA & ORS                      ..... Respondents
Through Mr. Atul Nanda with 
Ms. Sugandha, Advocate for UOI.
Ms. Jyoti Singh, Advocate for R-2, 5 to 7.
  Ms. Aparna Bhat with 
Mr. P. Ramesh Kumar, Advocate 
for R-3 & 8.
Ms. Veena Goswami, Advocate for R-4.
Ms. Masha Brar, Advocate for 
Mr. Sunil Mittal, Advocate for R- 9 & 10.
1.  Whether Reporters of local papers may be                  
      allowed to see the order?                        Yes
2.  To be referred to the Reporter or not?                 Yes   
3.  Whether the order should be reported in Digest?     Yes
                        O R D E R
1.  The background to the petition is that Respondent No. 10 who is
the wife of Petitioner No.1, and daughter-in-law of Petitioners 2
and 3, filed a complaint on 15th
March 2008 with the Crime Against
Women (CAW) Cell, Nanakpura, Delhi alleging commission of
acts of cruelty by them attracting the provision of S.498-A IPC and
the Dowry Prohibition Act. On  28th
March 2008 she also filed a
complaint with the National Commission of Women (NCW),
Respondent No.3 herein. The Petitioners state that on receiving a
telephonic summons from the Project Coordinator, Respondent No.
8, on 31st
March 2008 they went to the office of the NCW on 1st
Writ Petition (Civil) No. 10180/2009                                                               Page 2 of 15
April 2008  where, they allege, they were spoken  to  rudely by
Respondent No.8. On 8th
April 2008, as Petitioner No.1 was on his
way to Dubai, he was “off-loaded‟ at the IGI Airport, and detained
by the officials of the Foreigners Regional Registration Office
(„FRRO‟). The Petitioners allege that this was done at the instance
of Respondent No.8 who wrote a letter to the DCP, FRRO who then
issued a Look-out Circular („LOC‟) on the basis of which Petitioner
No.1 was „off -loaded‟ and detained at the IGI Airport on 8th
2008. It is alleged that Petitioner No.1 was  “made to  stand in
solitary confinement in a toilet, causing untold harassment,
humiliation and infringement of his fundamental rights guaranteed
under the Constitution of India. His passport was stamped with  the
remarks „Off loaded-deported due to criminal complaint‟ albeit
there was no criminal case pending against him nor any FIR was
registered. He was released only after intervention by his solicitor.”
2. At  the time that an LOC was issued against the Petitioner No. 1
at the instance of the NCW, no FIR had been registered. That was
done on 11th
August 2008. The Delhi Police then requested on 15th
April 2008 to issue an LOC.  Later, on the directions issued on 16th
April 2008 by the Court of  the Additional Sessions Judge, who
granted the Petitioners anticipatory bail conditional upon their not
leaving the country, the LOC was withdrawn on 22nd
April 2008. 
3. In the circumstances, the present petition was filed on 10th
2009 praying for the following reliefs: Writ Petition (Civil) No. 10180/2009                                                               Page 3 of 15
“(a) Issue a writ in the nature of Mandamus or any
other appropriate writ, direction or order thereby
directing the Respondent No. 1 to expunge the
endorsement “off  loaded  (criminal  complaint)” on the
Passport of the Petitioner No. 1; 
(b) To direct  an enquiry or investigation into the
illegal, wrongful and malafide conduct of the officials
of the CAW, NCW, FRRO and DCW and Respondents
No. 8 to 10 and to ascertain and fix the responsibility
and liability and punish the wrongdoers found guilty;
(c) To  grant compensation to the Petitioners in a sum
of Rs.50 lakhs, or as deemed fit in the facts and
circumstances of the case to be paid by the
Respondents jointly and severally;
(d) Award costs to the Petitioners; and 
(e) Any other/further relief this Hon‟ble Court may
deem fit and proper in the facts and circumstances of
the case, may also be passed in favour of the
Petitioners, in the interest of justice.”    
4. On 5th
May 2010 this Court passed the following order:
“1. The  National Commission for Women (NCW)
wrote a letter the Foreigners Registration Regional
Office (FRRO) on 31st
March 2008 (which letter was
received by the FRRO on 1st
April 2008) asking for the
opening of a Look Out Circular (LOC) against the
Petitioner No.1.  The reason for this as explained by
the NCW is that the complainant expressed a great
sense of urgency and the apprehension that Petitioner
No.1 might flee the country thus frustrating the
mediation process before the NCW. According to the
NCW, a telephonic call was made by its officer to the
Petitioner No.3 who expressed her inability to appear
before the NCW.  This then triggered off the Writ Petition (Civil) No. 10180/2009                                                               Page 4 of 15
aforementioned letter from the NCW to the FRRO. It
is not in dispute  that acting on the above letter of the
NCW, the FRRO promptly issued an  LOC and
Petitioner No.1 who had boarded a flight to Dubai was
offloaded with a direction to report to the NCW. 
2. The legal basis for the above action is traced to the
powers vested for the NCW under Section 10 (4) of the
National Commission for Women Act 1990.  That
provision reads as under:
“10 (4). The Commission shall, while
investigating any matter referred to in clause (a)
or sub-clause (f) of sub-section (1), have all the
powers of a civil court trying a suit and, in
particular, in respect of the  following matters,
(a)  summoning and enforcing the attendance of
any person   from  any part of India and
examining him on oath;
(b) requiring the discovery and production of
any document;
(c)  receiving evidence on affidavits;
(d)  requisitioning any  public record or copy
thereof from any   court or office;
(e) issuing commissions for the examination of
witnesses and documents; and
(f)  any other matter which may be prescribed.”
3. The question that arises is whether while exercising
the power of a civil court the NCW could ask for an
LOC to be issued against a person who is to appear
before it. 
4. In its counter affidavit the FRRO has placed reliance
upon a circular dated 5th
September 1979 issued by the Writ Petition (Civil) No. 10180/2009                                                               Page 5 of 15
Ministry of Home Affairs (MHA) which states  that
such LOCs are issued to check the arrival/departure of
foreigners and Indians “whose arrival/departure has
been banned by the concerned authorities”.  The
“concerned authorities” are stated to include “the
Ministry of Home Affairs, the Customs and Income
Tax Department, Directorate of Revenue Intelligence,
Central Bureau of Investigation, Interol, Regional
Passport Officers, Police Authorities in various States
5. On instructions from SI Sanjeev attached to the
FRRO, counsel for the FRRO submits  that there is no
further amendment to the aforementioned circular
dated 5th
September 1979.  It is, therefore, not clear on
what basis the FRRO could have simply acted on a
letter from the NCW and issued the LOC in the instant
case.  It prima facie appears that tribunals and
commissions which exercise only powers of the civil
court were not intended to be included in the list of
“concerned authorities” which the above circular dated
September 1979 talks of.  However, without further
clarifications from  the MHA on this aspect it will not
be possible for this Court to take a final view on the
legality of the action of the NCW in the instant case.  
6. Therefore, this Court directs the impleadment of
Union of India, in the Ministry of Home Affairs
through its Secretary as a party Respondent.  Amended
memo of parties be filed within one week.
7. Notice will go to the newly added Respondent. The
MHA will file an affidavit indicating whether the
system of having LOCs issued continues to be
governed by the aforementioned circular dated 5th
September 1979; whether there have been subsequent Writ Petition (Civil) No. 10180/2009                                                               Page 6 of 15
amendments to the said circular; whether there are any
detailed instructions/guidelines on the procedure to be
followed for issuing an LOC and whether there are
instructions/guidelines for the guidance of the various
„concerned authorities‟ about the circumstances in
which and procedure they should follow while making
requests for issuance of LOCs. An affidavit be filed by
a senior level officer of the MHA within a period of
four weeks.  Preferably the deponent of the said
affidavit should be present in the Court on the next
date of hearing for clarifications.
8. An affidavit will also be filed by the Commissioner
of Police, Headquarters, New Delhi (Respondent No.5)
explaining the procedure it adopts where it makes
requests, as it has done in  the instant case, for issuance
of LOC.  It may be mentioned here apart from the
MHA, the Delhi Police also made a separate request
for issuance of the LOCs against the Petitioners which
was thereafter withdrawn within a few days. The
affidavit to be filed by the Delhi Police will deal with
the contention of the petitioners that for no apparent
reason their case was transferred from the Crime
Against Women Cell (CAW Cell) to the  Anti
Extortion Cell. 
9. List on 20th
July 2010.  A copy of this order be sent
to the Secretary, Ministry of Home Affairs and the
Commissioner of Police within five days.
10. A copy of this order be given dasti to the learned
counsel for the parties.”
5. Pursuant to the above order, two affidavits were filed, one by the
Delhi Police dated 13th
July 2010 and the other by  the Ministry of Writ Petition (Civil) No. 10180/2009                                                               Page 7 of 15
Home Affairs („MHA‟) dated 16th
July 2010.
6. In the affidavit filed by the MHA it is stated that there is no legal
definition of an LOC. It is then stated:
“yet, it has a definite statutory legal backing in the
form of already enshrined enabling provisions in the
Cr.P.C. such as Section-37 read with Section 41(1),
Section 441 read with Explanation to Section-446. A
comprehensive legal mandate has been provided in the
procedural law of the country to cover the stage of
both investigation as well as trial respectively in the
realm of criminal jurisprudence. Practically, LOC is
interpreted as a communication received from an
authorised Govt. agency with reference to a person
who is wanted by that agency for fulfillment of a legal
requirement, to secure arrest of person evading arrest,
to nab proclaimed offender, to facilitate court
proceeding by securing presence of under trials who
are on bail. LOC is opened at the instance of a
competent authority authorized to do so only after
examining the fact that the person concerned is either a
wanted or a suspect.”     
7. Reference  is then  made to the background in which specific
amendments were made to the Passports Act 1967 on 23rd
2001 introducing Sections 10A and 10B. Section 10A gives power
to a „designated officer‟ to suspend a passport or order a passport to
be invalid for four weeks. It may be extended till proceedings under
Section 10 are concluded. Section 10B states that “every intimation
given by the Central Government or the designated officer, before
the commencement of the Passports (Amendment) Act 2002 to any Writ Petition (Civil) No. 10180/2009                                                               Page 8 of 15
immigration authority at an airport or any other point of
embarkation or immigration, restricting or in any manner
prohibiting the departure from India of any holder of the passport or
travel document  under sub-section (3) of Section 10, shall be
deemed to be an order under sub-section  (1) of Section 10A and
such order shall continue to be in force for a period of three months
from the date of commencement of the Passports  (Amendment)
Act, 2002, or the date of giving such intimation, whichever is later.” 
8. As regards the procedure for opening an LOC, reference is made
to the MHA circulated dated 5th
September 1979. It is stated that:
“Courts also open LOCs on various legal matters.
LOCs  are  based  on  the  originator‟s  request who  sent
the communication to various immigrations check
posts on the basis of substantive/procedural laws viz
IPC, Cr.P.C., Custom Act, Income Tax Act, NDPS
Act, etc. All these communications are related to
accused/suspected persons wanted in some cases.
Besides, different courts also issue these
communications in the form of LOCs including LOCs
against those person who evade their presence in the
Court of law during the course of judicial trial.”
9.   It is further clear from the reply that  in terms of a subsequent
O.M. dated 27th
  December 2000  there is  a  specific proforma in
which a request  must be made for opening of an LOC and this
should be issued “with the approval of an officer not below the rank
of Deputy Secretary to the Government of India/Joint Secretary in
the State Government/Concerned Superintendent of Police at Writ Petition (Civil) No. 10180/2009                                                               Page 9 of 15
district level.” A  copy of the Office Memorandum dated 27th
December 2000 enclosing proforma for request for opening an LOC
has also been enclosed. 
10. Since the above affidavit of the MHA did not categorically state
whether statutory bodies like NCW can make a request for opening
an LOC,  the MHA was asked at the hearing on 20th
  July 2010 to
clarify its stand.   Today,  learned counsel for the Respondents
informs the Court that as of today there is no further amendment to
the existing instructions. The legal position is that statutory bodies
like NCW  cannot  make a request for  the  issuance of an  LOC. 
Apart from the Central Government and the State Government,
there is no other authority on whose request an LOC can be issued. 
11. The other affidavit filed by  Mr. Mangesh Kashyap,  Deputy
Commissioner of Police, Headquarters, Delhi dated 13th
July 2010
refers to the factual details in the present case. It appears that it was
only after an FIR was registered on 11th
April 2008 that the DCP
sent a formal request in the prescribed  format on 15th
April 2008.
Therefore, on 8th
April 2008 when the Petitioner No. 1 was detained
at the airport, there was no request by the Delhi Police for issuance
of an LOC. Clearly it is only on the basis of the LOC request made
by the NCW, which was made without any authority of law, that
the Petitioner No. 1 was off-loaded and detained.  
12. Although this Court had in its order dated 5th
  May 2010 Writ Petition (Civil) No. 10180/2009                                                               Page 10 of 15
required the Delhi Police  to deal with the contentions of the
Petitioners  that  “for  no apparent reason their case was transferred
from the Crime Against Women Cell (CAW Cell) to the Anti-
Extortion Cell”, the response on  this aspect  is not satisfactory. The
affidavit only states that since the complainant expressed
dissatisfaction over the conduct of the investigation by the CAW
Cell, Nanakpura and non-recovery of stridhan by Investigation
Officer,  the case was transferred to Anti-Extortion Cell of the
Crime Branch for fair and impartial investigation in the case by the
orders of the Commissioner of Police, Delhi. This Court fails to
understand why the  case  had  to  be transferred to  the  “Anti-
Extortion Cell”. Be that as it may, the Commissioner of Police will
personally examine the case once again and take a fresh decision
within two weeks from today. The Petitioners and the complainant
will be informed of such decision within a week thereafter. 
13.   Ms. Bhat, learned counsel appearing for the NCW  submitted
that it was the NCW‟s stand that it has no power to make a request
for  the  issuance of an LOC  under the  existing  Circulars of the
MHA. According to her, NCW has acted bonafide and  made  a
written request to the FRRO and since the FRRO was authorized to
issue the LOC, the NCW was acting within its powers. She added
that on receiving a complaint  from a woman  in distress, the NCW
attempts, in the first place,  to bring about an atmosphere which is
not adversarial. It seeks to  facilitate mediation between the parties.
According to her,  when upon  making a telephone call to the Writ Petition (Civil) No. 10180/2009                                                               Page 11 of 15
Petitioners,  the co-ordinator of the NCW  was  informed that they
will not be willing to come to NCW‟s office, a letter was sent to the
FRRO by the co-ordinator for the issuance of an LOC. 
14.    In the affidavit of FRRO, which  has been referred to  in the
earlier  order of this Court, it is stated  that the LOC came to be
opened only on the request of the NCW. Clearly, neither the NCW
nor  the FRRO was aware of the correct  legal position as explained
in the affidavit of the MHA. A request for the issuance of an LOC
could not have emanated from the NCW. It had to come from either
the Central or the State Government and that too  only in the
prescribed form  and then again  only by  the  officers of  a certain
rank.    In this context, while criminal courts dealing with cases of
criminal law enforcement can issue directions, which may result in
the issuance of an LOC, there is no such power vested either under
the Cr. P.C. or the Passports Act or  under  the MHA‟s  circular,  in
statutory bodies like the NCW. Being granted the powers of a civil
court for a limited purpose does not vest the NCW with the powers
of a criminal court and it has no authority as of today to make a
request for the issuance of an LOC.  
15.  This Court is, therefore, of the view that action of the NCW  in
writing  to the DCP, FRRO for  the  issuance of an LOC against the
Petitioner No. 1 was without the authority of law.   The consequent
action of the FRRO  in  issuing such LOC which resulted in the
Petitioner No.1 being detained at the IGI airport on 8th
April 2008 Writ Petition (Civil) No. 10180/2009                                                               Page 12 of 15
was also, therefore, illegal. 
16.  The question now is only for consequential relief that should be
granted. The power to suspend, even temporarily, a passport of a
citizen, the power to issue an LOC, the power to „off-load‟  a
passenger and prevent him or her from travelling  are all
extraordinary powers, vested in the criminal law  enforcement
agencies by the statutory law. These are powers that are required
under the law, to be exercised with caution and only by the
authorities who are empowered by law to do so and then again only
for valid reasons. Recently, in  Suresh Nanda v. Union of India
2010 IV AD (Del) 53, this Court, after referring to the judgment of
the Supreme Court  in Maneka Gandhi v. Union of India (1978) 1
SCC 248, observed:
“35. …There has to be application of mind by the
authority to the relevant factors that would enable it to
come to the conclusion that the impounding of the
passport is in the interests of the general public. And
then again, in the context of the criminal case which is
still under investigation, this cannot be an opinion
formed at one point in time. The public interest
element will vary depending on the stage of the
investigation. It cannot be said that as long as the
investigation is not complete, it is not in public interest
to release a passport. That would be giving too wide a
power to the authority.” 
17. In Bhim Singh v. State of J&K (1985) 4 SCC 677, a member of
the Jammu & Kashmir Legislate Assembly was detained by the
Police while on his way to attend a session of the assembly. By the Writ Petition (Civil) No. 10180/2009                                                               Page 13 of 15
time the petition filed by him challenging his detention was heard,
he had already been released. Nevertheless, the Supreme Court
examined the case and concluded that his detention was unlawful. It
then proceeded to award him compensation after observing:   
“Custodians of law and order should not become
depredators of civil liberties. Their duty is to protect
and not to abduct. However the two police officers, the
one who arrested him and the one who obtained the
orders of remand, are but minions, in the lower rungs
of  the ladder. We do not have the slightest doubt that
the responsibility lies elsewhere and with the higher
echelons of the Government of Jammu and Kashmir
but it is not possible to say precisely where and with
whom, on the material now before us. We have no
doubt that the constitutional rights of Shri Bhim Singh
were violated with impunity. Since he is now not in
detention, there is no need to make any order to set
him at liberty, but suitably and adequately
compensated, he must be. That we have the right to
award monetary compensation by way of exemplary
costs or otherwise is now established by the decisions
of this court in  Rudul Sah v. State of Bihar  (1983) 3
SCR 508    and  Sebestian M. Hongray v. Union of
India AIR 1984 SC 1026. When a person comes to us
with the complaint that he has been arrested and
imprisoned with mischievous or malicious intent and
that his constitutional and legal rights were invaded,
the mischief or malice and the invasion may not be
washed away or wished away by his being set free. In
appropriate cases we have the jurisdiction to
compensate the victim by awarding suitable monetary
compensation. We consider this an appropriate case.” 
Writ Petition (Civil) No. 10180/2009                                                               Page 14 of 15
18.  Therefore, as regards  the illegal detention suffered by the
Petitioner No. 1 on 8th
April 2008 at the instance of both the NCW
as well as the FRRO, this Court directs that the FRRO as well as the
NCW will  each  pay  the Petitioner No.1  a sum of Rs. 20,000/-  by
way of compensation  within a period of four weeks from today.
The Respondent No. 1 will, if not already done, within two weeks,
make the necessary endorsement on the passport of Petitioner No. 1
expunging the earlier endorsement “off-loaded (criminal
complaint)”.    In the circumstances, this Court does not consider it
necessary to examine the other prayer of the Petitioners that a
further detailed investigation should be undertaken to fix
responsibility on those who may have been responsible for the
issuance of the LOC.  
19. Mr. Nanda, learned counsel appearing for  Respondent No. 1
submitted  that in order to ensure  that such incidents do not  recur,
this Court should direct that further instructions/circulars should be
issued  clarifying the correct  legal position. This Court finds that
there are a large number of statutory commissions at the level of the
Centre and the  States which perform judicial functions and are
vested with, for the purpose of conducting inquiries upon receiving
complaints, the powers of a civil court. These include the National
Human Rights Commission („NHRC‟),  the  NCW,  the  National
Commission for Protection of Children‟s  Rights.  These statutory
bodies, however, have not been vested with the powers of a
criminal court and do not have powers to enforce criminal law. It is Writ Petition (Civil) No. 10180/2009                                                               Page 15 of 15
for the Government of India to take a policy decision on whether it
wants to vest such statutory tribunal/commissions with criminal law
enforcement powers. Since as of today, they have no such power, it
is imperative that  the MHA  should  issue further  clarificatory
circulars or  office memoranda clearly stating that  the request for
issuance of LOCs  cannot  „emanate‟  from  statutory bodies  like  the
NCW. If at all, such bodies should bring the necessary facts to the
notice of law enforcement agencies  like the police, which will then
make the request for issuance of an LOC upon an assessment of the
situation, and strictly in terms of the procedure outlined for the
purpose.  This clarification will be issued by the MHA, in
consultation with the other concerned agencies, including
representatives of the statutory bodies referred to, within a period of
12 weeks from today.    
20. With the above directions, the writ petition is disposed of.  
21. Order dasti under the signatures of Court Master. A certified
copy be delivered to the Secretary, MHA, the Commissioner of
Police and the Chairperson, NCW forthwith. 
                 S. MURALIDHAR, J.
JULY 26, 2010                       

1 comment:

  1. WTF - just Rs.20,000??? If a wife files a false complaint courts order more than 50,000 per month!!! This guys should have given at least 1 crore. He should challenge this order in supreme court.