Delhi HC – guidelines for LOC and RCN and its purpose – case of arbitrary malafide exercise of powers/influence By police FRRO and NCW powers in 498a case

WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006                                                                         

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve:  July 15, 2010

Date of Order: August 11, 2010

W.P.(Crl.) No. 1315/2008  11.08.2010

SUMER SINGH SALKAN                 ... Petitioner 
        Through: Ms. Malavika Rajkotia with Mr. Bandan
        Kumar, Advocates 

Versus

ASSTT. DIRECTOR & ORS.                    ... Respondents
Through:  Mr. Vikas Pahwa, Standing Counsel for
CBI, Mr. Pawan Sharma, APP for the State, Mr. D.K.
Sharma, SHO, P.S. Alipur.
and 

Date of Reserve:  July 20, 2010
Date of Order: August 11, 2010
Crl. Ref. 1/2006               11.08.2010

COURT ON ITS OWN MOTION RE:                                                       ... Petitioner 
        Through: None.  

Versus

STATE VS. GURNEK SINGH ETC.                                 ... Respondents
Through: Mr. Sunil Sharma, APP

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?  Yes.
2. To be referred to the reporter or not?            Yes. 
3. Whether judgment should be reported in Digest?        Yes.

JUDGMENT

1.   By the present petition the petitioner has sought recall of Look-out-Circular (LOC)  and Red Corner Notice (RCN) issued by Delhi Police and Interpol against the petitioner alleging that LOC and RCN were issued in arbitrary and malafide exercise of power by the respondent. 

2.  The  petitioner claimed that he was a Canadian citizen since January, 2004 and a person of Indian origin.  He had married one Ms. Reema Salkan, daughter of Prof. R.S. Mann, on 24th March, 2002 according to Hindu rites and ceremonies at Infantry Hostel, Delhi Cantonment, New Delhi.  At the time of  his marriage, the petitioner was living and working in Canada and he came to India on three weeks leave for the purpose of marriage.  The marriage was settled with Ms Reema through matrimonial advertisement in newspaper.  The facts reveal that wife of the petitioner was not able to join the petitioner in Canada, as difference arose between the parties in the very beginning.  The petitioner alleged that he was compelled to withdraw the sponsorship made by him for his wife  Reema in view of certain developments.   A  complaint against the petitioner and his parents and married sister was filed at Crime Against Women Cell (CAW Cell) under section 498-A/406 IPC making various  allegations.  Later on, an FIR was registered on 22nd April, 2003 on the basis of this complaint.  The parents and sister of petitioner obtained anticipatory bail  from the court. Since petitioner was in Canada, he could not be arrested by the police. Additional Deputy Commissioner of Police (North-West) wrote a letter dated 27th May, 2003 to Foreigners Regional Registration Office (FRRO)  for opening LOC against the petitioner.  This letter,  annexed with the petition,  shows that Addl. DCP asked RFFO to open an LOC against the petitioner at all India basis because of FIR under section 498A/406 of IPC, registered at Police
Station - Alipur, Delhi.  Later,  a  letter seems to have also been written to Interpol Wing of  Central Bureau of Investigation (CBI) on 11th   June, 2003 for opening and  issuance of a Red Corner Notice and service of summons on the petitioner in Canada.  In response to this letter, CBI wrote a letter to Dr. R.K. Bansal, Asstt. Commissioner of Police (ACP), Sub Div. Narela, Delhi dated 15thJuly, 2003 and informed ACP that summons had been forwarded to Indian High Commission in Canada and also informed that in order to bring the petitioner to Delhi, charge-sheet should be filed and Non-Bailable Warrants (NBWs) of arrest should be obtained against the petitioner so that extradition proceedings could be initiated.  It was advised that a short self contained note be prepared and same be sent to Interpol Wing.  Further documents show that  the police declared  the petitioner as a “Wanted” person without any process issued through the Court and opened a file No. 6/SIO/2003 (77).   Asstt. Director of T.P. Section/SI Cell issued a letter to all Immigration Check Posts alerting them so that if the petitioner was detected, he should be detained and his detention should be conveyed to Shri R.S. Yadav, Addl. Deputy Commissioner of Police.  This letter was sent to all States D.G.Ps, all Seaports and all Airports. A copy of RCN, issued against the petitioner, is on record.  The RCN described the petitioner as “fugitive wanted for prosecution”.   A warning is there that the petitioner may be  “dangerous” and “violent”.  The RCN had the photograph of the petitioner and particulars.  In the particulars, the offences mentioned are section 498A, 406 and 34 of IPC and maximum possible penalty has been mentioned as ‘10 years’  imprisonment’.  (This must be  an  invention  made by ACP,  as far as IPC is concerned, the maximum punishment for offences under section 498-A & 406 of IPC is up to three years imprisonment.)

3.  A notice of the petition was served upon the respondent and  a status report was filed by SHO, P.S. Alipur, Delhi.  In the status report it has been stated that after registration of FIR, investigation was taken up and sister and parents of the petitioner were granted anticipatory bail, so they were formally  arrested. Since the petitioner was at Canada, he could not be arrested and LOC was got opened against him and also RCN was got issued against him, but the petitioner did not join investigation.  A charge-sheet was filed against the petitioner, his parents and his sister;  in which the petitioner’s name was kept in column 2.  It is  submitted  that LOC and RCN were got issued against the petitioner during investigation as there was sufficient evidence to show
complicity of the petitioner  in commission of crime.    The NBWs were issued against the petitioner by the Court of learned Metropolitan Magistrate through Ministry of Home Affairs and the date fixed before the Court was 15th
April, 2009. 

4.  The RCN, was widely published and also placed on internet.  It  shows that the petitioner was involved in crime of kidnapping including crime against life and health. It is submitted by CBI that family related crimes are classified in the category of  ‘kidnapping’  and that is why Interpol’s  public  website showed the crime of petitioner as  ‘kidnapping’.  However, on a protest of petitioner, the offence of kidnapping was deleted from ‘RCN’.

5.  This court also received a reference from ACMM, Patiala House Court regarding guidelines for issuance of LOC and for closure of LOCs.  Response of  the State/UOI was sought on this reference.  In its response, it is stated by UOI that there was no legal definition of LOC.  However, LOC was interpreted as a communication received from an authorized government agency with reference to a person who  is wanted by that agency for fulfillment of a legal requirement, to secure arrest of a person evading arrest, to nab a Proclaimed Offenders so as  to facilitate court proceedings by securing presence of under trials.  It is stated that statutory backing for  issuance of LOC can be placed to Passport Act, 1967, sections 10A and 10B.  Section 10A gives power to a designated officer to suspend passport or render a travel document invalid for a period of 4 weeks and section 10B provides that every intimation given by the Central Government or the designated officer, to any immigration authority at an airport or any other point of embarkation or immigration, restricting or in any manner prohibiting the departure from India or any holder of the Passport or travel document. The other statutory provision relied upon is Section 41 of Cr. P.C. which requires police to arrest any person without warrants.   The LOC’s  are  issued  at the behest of  different agencies in accordance with Ministry of Home Affairs’ Circular No. 15022/13/78-F.1 dated 5th September, 1979, either to monitor the arrival/ departure of foreigners and Indians or to restrict arrival/departure of foreigners or Indians.  It is stated that  LOCs are based on the originator’s request to send communication to various immigrations, check posts on the basis of substantive/ procedural laws in respect of persons wanted in some cases.  It is admitted that Ministry of Home Affairs’ office memorandum No. 15022/20/98-F.IV dated 27th December, 2000 requires that a request for opening of LOC must be issued with an approval of officer not below the rank of Deputy Secretary to the Govt. of India/ Joint Secretary in the State Government/ Concerned Supdt. of Police at district level and action on the LOC is to be taken in accordance with the directions of the originator.  LOC was a part of investigation technique. 

6.  A perusal of Interpol documents regarding issuance of RCN would show that the RCN /  ‘wanted notice’ are published in respect of offender wanted at international level and it requires that the subject may be arrested in certain country with a view to extradite him to the country where he  is wanted and following conditions are to be fulfilled:

-  The person against whom the notice is to be published has committed an offence against ordinary criminal law.

-  The offence is an “extraditable offence” under the Indian Extradition Act, 1962.

-  A warrant of arrest has been issued for his/her arrest. 

-  Extradition will be requested, at least from certain countries. 

7.  It is apparent that the offence for which an RCN can be issued must be extraditable offence in the country where the offence is originated and in the country where person is located and a warrant of arrest against the person had been issued.  

8.  In the present case, petitioner’s address  in Canada was well known  to the police as well as to the complainant.  No effort was made by the police to initiate extradition proceedings against the petitioner from Canada to Delhi despite the fact that even according to police; the petitioner is wanted since 2003.  The information given in RCN is that the petitioner emotionally tortured
his wife while his family physically tortured his wife.  The RCN  requirements provide that the request has to be made to the country if the country is linked by Bilateral Extradition Treaty or by any other Convention or Treaty containing
provision of Extradition Treaty.

9.  In another  case where LOC was issued at the behest of National Commission of Women (NCW)    titled as  Vikram Sharma & Ors Vs. Union of India & Ors., decided on 26th July, 2010, High Court observed as under:

  “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 district  level.”  A  copy  of  the  Office Memorandum dated 27th December 2000 enclosing proforma for request for opening an LOC has also been enclosed.

 
  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 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.”

This  High Court  concerning the issuance of LOC in  Vikram Sharma (Supra) gave following directions :

 
  “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 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.  

10.  In the present case, the LOC was issued against the petitioner soon after the registration of FIR.  It is alleged  by the petitioner  that LOC was  issued in view of the fact that complainant’s close relative was an IPS  officer.   This allegation of the  petitioner finds support from the fact that the  punishment  stated by the police to Interpol in respect of the offences committed has been deliberately given as 10 years while the prescribed punishment is maximum 3 years imprisonment.  The petitioner’s description of being  ‘violent and dangerous’ also has been added malafidly, with ulterior motive, in view of the fact that allegations against petitioner were of only of emotional torture.  Offence of kidnapping was given as the reasons for issuance of RCN, which on the representation of petitioner was removed.  It is apparent that the LOC & RCN were issued for extraneous reasons by an officer who was not authorized.  The petitioner has also  highlighted the difference in  statements made by
witnesses on different occasions.  Since the matter pertaining to these offences is subjudiced, it will not be appropriate to comment on this  aspect but suffice  it  to say that the action against the petitioner of issuing RCN was uncalled for in view of the fact that neither offence, for which the petitioner is facing trial in India, is an extraditable offence, nor any request for extradition of the petitioner has been made for the last 7 years despite knowing whereabouts of the petitioner.   I, therefore, consider it a fit case  for quashing the RCN issued against the petitioner at the behest of Delhi Police.  The RCN, is therefore, hereby quashed.   

11.  Look-out-Circular has  also  been issued against the petitioner as the petitioner is an accused before the Court of M.M. and he has not appeared before the Court of M.M.  If the petitioner gives an undertaking before the court for his appearance on a particular date, through his counsel, the Look-out-Circular issued against the petitioner shall be withdrawn within 24 hours of giving undertaking by the petitioner.    The questions raised in the reference are as under:

“A.   What are the  categories  of cases in which the investigating agency can seek recourse of Look-out-Circular and under what circumstances?

B.  What procedure is required to be followed by the investigating agency before opening a Look-out-circular?

C.  What is the remedy available to the person against  whom such  Look-out-Circular has  been opened?

D.  What is the role of the concerned Court when such a case is brought before it and under what circumstances, the subordinate courts can intervene?

  The questions are answered as under: 

  A.  Recourse to LOC can be taken by investigating  agency in cognizable offences under IPC or other penal laws, where the accused was deliberately evading arrest or not appearing  in the trial court despite NBWs  and other coercive
measures  and there was likelihood of the accused leaving the country to evade trial/arrest.

  B.  The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs, giving details & reasons for seeking LOC.  The competent officer alone shall give directions for opening LOC
by passing an order in this respect. 

C.   The person against whom LOC is issued must join investigation by appearing before I.O. or should surrender before the court concerned or should satisfy the court that LOC was wrongly issued against him.  He may also approach the officer who
ordered issuance of LOC & explain that LOC was wrongly issued against him.  LOC can be withdrawn by the authority that issued and can also be rescinded by the  trial  court where case is pending or having jurisdiction over concerned police station
on an application by the person concerned.  

  D.  LOC is a coercive measure to make a person surrender to the investigating agency or Court of law.  The subordinate courts’ jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming
NBWs.

12.  The petitions stand disposed of in above terms.

SHIV NARAYAN DHINGRA, J.

AUGUST 11  , 2010
acm

http://lobis.nic.in/dhc/SND/judgement/11-08-2010/SND11082010CRLRF12006.pdf

Delhi HC – 498a jurisdictional quash – hammers work culture and motive of police culture - registration of FIRs has been made a profitable business by some police officials.

IN THE HIGH COURT OF DELHI AT NEW DELHI    

 
Date of Reserve: 28th July, 2010

Date of Order:  August  06, 2010

+ Crl. M.C. 722 of 2009   06.08.2010

  Amit Sharma             ...Petitioner 

      
Through: Mr. R.S. Kela, Advocate     
 

Versus  

State & Ors.              ...Respondents   
Through:   Mr. Sunil Sharma, APP for State  
    Mr. R.K. Pandhi, Advocate for R-2

JUSTICE SHIV NARAYAN DHINGRA

1.  Whether reporters of local papers may be allowed to see the judgment?  Yes.
2.  To be referred to the reporter or not?          Yes.
3.  Whether judgment should be reported in Digest?        Yes.

JUDGMENT 

1.  The present petition under Section 482 Cr.P.C  read with Article 227 of the Constitution of India  has been  preferred by the petitioner for quashing of FIR No.170 dated 15th  August, 2008 registered at Police Station Kirti Nagar, West Delhi District, New
Delhi. 

2.  The present FIR was registered at the behest of Smt. Kavita Gupta who a  resident of USA and had come to Delhi perhaps only for  registration of this FIR. A perusal of FIR reveals that Smt. Kavita Gupta was living in USA since 1993. She obtained Master Degree in Electrical Engineering from Arizona State, USA in 1995 and  subsequently got employed in USA and started working there and living there. She came to India at Panchkula, Haryana for the purpose of marriage and was married to Shri Amit Sharma on 10th  January 2000 at Panchkula. After this marriage, her version of events, as given in FIR reads as under: 
“After marriage, I and my husband went to USA and all the documents and money for the visa and other arranged by me as per assurance and promise of the husband that when we will reach at USA, I already arranged a job at there through my friends and sister  immediately I will joint  there and payback to all the money spent by you for my visa and other expenses in presence of my father in law and mother in law. Accordingly, my husband and I arrived at USA in the  month end of January, 2000 and I shocked after four months pass away when  my husband at  home without any job neither he tries for the same nor any tension in  his mind, totally depends upon me as well as enjoy with my hard earning money congregate since 1993 and the present salary earned by me. In continuation, my husband wants  to persuade a professional course for the same course I burdened the shelter, education and day to day expenses of my husband, texts books, fees, etc. Till 2003 I provided well professional education my husband and accordingly he got the join in the year,  2004 as per the hardship, sacrifice and financial and monetary help and encouragement of mine. I have, sponsored him H-4 spouse  visa to USA. Thus facilitating immigration to USA and sponsored his Green Card application. As such I have not been able to enjoy my matrimonial life and married life normally and I totally sacrificed her obligations and enjoyments only for the career and goodwill of my husband. Further, I have provided a car to him for his personal use totally financed by me just to maintain the  respondent’s social status in the University as well as his friends circle. The year wise events of sacrifice and financial help provided by me annexed as Annexure-B. My nightmare started after my husband got a full time job. As soon as he was settled into  his job,  his parents (father in law and mother in law) sponsored by his sister for green cards and they come to stay on a permanent basis at my place now in addition to supporting my  husband, I was forced to pay for his parents expenditure as well. It is  to be noted that I was not even informed about the development that they were planning to immigrate permanently and would be staying with the complainant. His sister Anita Trehan sponsored and signed the financial support documents agreeing to support his  parents. However, she has
not contributed singly penny towards their support nor offer to keep them at her home. This information has been reported to USA immigration authorities as well. His parents in compliance with his sister and my husband therefore forced their way into the house in Houston and started to threatened me and harass me if I questioned them on this step. Further, I submit that they treated me like a slave and prisoner in my own house each time of which has been bought with my own hard earned money. I was subjected to mental abuse, and criticized  the complainant constantly and made her lose of her self-esteem. It is to be noted that I was undergoing infertility (intrusive inventor fertilization procedure) chiefly because of my husband’s abuse the complainant (push her against the wall, twist her arms, catch her neck) and in summer 2006, he slapped her in front of his parents as well as admitted to doing other physical harms and also threatened to me to evict me from my life and made pieces of her dead body and the same can be disposed of in such a manner without be able to identifying at any point to time. It is further pertinent to mention here that on August 2nd 2006, my husband and his parents assaulted me and forced me out of my own house in Friendswood, Texas, where each and everything were brought by myself including two cars. They also took all my wedding and other jewellary into their possession i.e. my “Istri Dhan” items and they also took possession of all the cheque books of joint  accounts and  without the knowledge of the petitioner, they transferred/ withdrew considerable amounts from the account. They have further gone into such a grave extent by removing and destroying all the documents relating to the education and bills etc paid by me for my husband and even spent for the welfare of the parents of my husband. After completing their ill designs they had filed a divorce case against me in Harris County Court, USA on the grounds of irreconcilable differences and further claimed all the properties belonged to me which I got and bought out of my own hard earned money. Being harassed by my in-  laws and my husband I with folded hands request / pray before  your goodself to register a criminal case against my husband and my in-laws for the offence committed by them…….”     

3.  After lodging this FIR in Delhi, she again flew back to USA and is presently residing in USA. The case is being prosecuted by her father as her attorney. A perusal of this FIR would show that immediately after marriage, the  parties moved to USA and thereafter all events as alleged by her are of USA. Even the allegations of her Istridhan being  taken  away  by her father in law and mother in law  is of USA and not of  India.  Allegations of cruelties and the attitude of her husband towards her are all of USA. It is not stated by her  that  she  ever  stayed with her in laws or husband from the time of marriage till filing of this complaint at Delhi. When the counsel for State was asked how this FIR was registered in Delhi, the response of the State counsel as given in the form of brief synopsis is that while in India, the complainant and accused cohabited at Delhi at Kirti Nagar, which is the matrimonial house of complainant and therefore there was jurisdiction of Delhi court. A perusal of FIR would show that nowhere the complainant had stated that cohabitation had  ever taken place between the parties at Delhi or the parties ever lived at Delhi. 

4.  It is surprising that such FIRs are  registered  by the police when neither complainant lives in Delhi nor the accused persons live in Delhi nor any part of alleged offence had taken place in Delhi. The    alleged offence  admittedly  had taken place in USA. All the accused persons, as mentioned by the complainant, are living in USA. The complainant herself is living in USA and the father of complainant  perhaps  is living in Delhi and pursuing this complaint. I consider that registration of this FIR is a sordid story of working culture of Delhi police. It is this police which refuses to register FIRs in case of robberies, thefts and other heinous offences which take place on the roads of Delhi and when the complainant  dare comes to police station for registration of FIR, he is made to run from one police station to another on the issue of jurisdiction itself, while the FIRs are registered when nothing happened    in India  and no investigation can be done by the police  in India. Why such FIRs are registered is obvious.  It seems registration of FIRs has been made a profitable business  by some  police officials. The police, in the present case, not only registered the FIR but also got lookout circulars for the petitioners issued.

5.   Police is supposed to be professional    in its working culture. The fall in standard of police has gone to such an extent that in genuine cases it  is difficult to get a case registered and even if registered, it wont act with sincerity but you can get any false registered with  it, if you have  right connections. The Supreme Court has to  say about registration of FIRs  in  India in Lalita Kumari  v Govt. of U.P. & Ors Writ Petition (Crl.) No.68 of 2008 decided on 14th  July, 2008 as under:
“It  is a matter of experience of one of us  (B.N. Agrawal, J) while acting as Judge of Patna High Court, Chief Justice of Orissa High Court and Judge of this Court that in spite of law laid down by this Court, the concerned police authorities do not register FIRs unless some direction is given by the Chief Judicial Magistrate or the High Court or this Court. Further experience shows that even after orders are passed by the concerned courts for registration of the case, the police does not take the necessary steps and when matters are brought to the notice of the Inspecting Judges of the High Court during the course of inspection of Courts and Superintendents of Police are taken to task, then only FIRs are registered. In large number of cases investigations do not commence even after registration of FIRs and in case like the present one, steps are not taken for recovery of the kidnapped person of apprehending the accused person with reasonable desptach. At times it has been found that when harsh orders are passed by the Members of the Judiciary in a State, the police becomes hostile to them for instance in Bihar when a bail petition filed by a police personnel, who was accused was rejected by a member of Bihar Superior Judicial Service, he was assaulted in the Court room for which contempt proceedings was initiated by Patna High  and the erring police officials were convicted and sentenced to suffer imprisonment.  On the other hand, there are innumerable cases that where the complainant is a practical  person, FIRs are registered immediately, copies thereof are made over to the complainant on the same day, investigation proceeds with supersonic jet speed, immediate steps are taken for apprehending the accused and recovery of the kidnapped persons and the properties which were subject matter of theft or dacoity. In the case before us allegations have been made that the Station House Officer of  the concerned Police Station is pressurizing the complainant to withdraw the complaint, which, if true, is a very disturbing state of affairs. We do not know there may be innumerable such instance.”  

6.  In the result, I allow this petition and the  FIR No.170 dated 15th   August, 2008 registered at Police Station Kirti Nagar, West Delhi District, New Delhi and the proceedings emanating therefrom are hereby quashed.  The lookout circulars of petitioners are also quashed. 

7.  The petition stands allowed.   

August 06, 2010                              

SHIV NARAYAN DHINGRA J.

rd

source : http://lobis.nic.in/dhc/SND/judgement/07-08-2010/SND06082010CRLMM7222009.pdf

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
  IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI
37
         W.P.(C) 10180/2009
  VIKRAM SHARMA & ORS                          ..... Petitioners
Through Mr. Abhay Singh with 
Ms. Yasmin Zafar, Advocate 
      versus
  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.
  CORAM:    JUSTICE S. MURALIDHAR
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
                         26.07.2010
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
April
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
  July
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,
namely:-
(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
etc.”
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
5th
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
October
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                       
rk

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