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

Del HC – S N Dhingra – 498a quash – delayed lodging of FIR – not maintainable if filed after 3 years of alleged offence – barred by 468 crpc- case filled after 15 of separation and 11 years after divorce

Crl. M.C. No. 799 of 2009                                                                                                                       

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: August 02, 2010

Date of Order: 10th  August, 2010

Crl. M.C. No. 799/2009                     10.08.2010

SUDHIR KAPUR & ORS.                                ..... Petitioner
        Through: Mr.Sanjeev K. Grover, Advocate

      versus

STATE & ANR.                                         ..... Respondent
        Through: Mr. O.P. Saxena, APP
        Mr. Pawan Narang & Mr. Puskal Gagoi,
        Advs. for R-2

JUSTICE SHIV NARAYAN DHINGRA

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

JUDGMENT
1.  Present petition has been filed for quashing of FIR No. 540/07, registered against the petitioner at P.S. Defence Colony, under Section 498-A/406/34 IPC . 

2.  The marriage between the petitioner and the respondent had taken place on 4th  March, 1984.  The parties started living separate from each other in 1992.  The petitioner filed a divorce petition against the respondent in 1996.  The present FIR was lodged against the petitioner by wife under Section  498A/406 IPC after about 15 years of living separate from her husband and
after about 11 years of filing the divorce petition. 

3.  It is argued by counsel for the respondent/wife that offence under Section 406 IPC was also involved and the dowry articles etc. of the wife were not given back.  This  averment has  no substance.  The wife had all opportunities right from 1992 onwards to demand back her  articles, if any, lying with the husband.  The very fact that wife did not demand any article from the husband after 1992 till lodging of FIR shows that there was no entrustment of property by wife to the husband or to his relatives.  After husband had filed divorce petition, she  had again opportunity to make  an application before the concerned court under Hindu Marriage Act for the return of dowry articles,  Istridhan, if any,  under section 27 of the Act. Had there  been any article lying with the husband, she would have moved the application. She did not initiate any such move, nor did she serve any notice on her husband or in laws for return of any of her articles lying with them.  It is only when her appeal against the  decree of divorce was dismissed by the High Court, and she preferred an SLP, she thought of lodging of an FIR also. 

4.  Under Section 468 of Cr. P.C., the cognizance of an offence where the maximum sentence of imprisonment is up to 3 years, can be taken within 3 years.  Under Section 498A/406 IPC maximum  sentence is up to three years imprisonment.  Thus the cognizance of the offences against petitioner cannot  be  taken by the Court.  The  FIR lodged against the husband in respect of offences committed under Section  498A/406 IPC  in 1992 or prior to that,  is barred by limitation.  I, therefore, allow the present petition and hereby quash FIR No. 540/2007, P.S. Defence Colony, New Delhi, registered under Sections 498A/406/34 IPC.   The petition stands allowed. 

AUGUST 10,  2010                        

SHIV NARAYAN DHINGRA, J.
acm

source- http://lobis.nic.in/dhc/SND/judgement/10-08-2010/SND10082010CRLMM7992009.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

Justice Dhingra slams Delhi Police for filing dowry cases without proper probe – abuse of police power with misuse of 498a

AWAITING FULL TEXT OF ORDER

Bail for man in dowry death case

PTI

New Delhi, Aug 6 (PTI) The Delhi High court today granted anticipatory bail to a man who is apprehending arrest in a dowry death case registered against him following the death of his sister-in-law in June this year. The court said the Delhi Police should carry out a thorough probe before registering an FIR against the family members of a husband in a dowry harassment/death case lodged by the wife.

While granting anticiaptory bail to Jaipal in a case lodged by the father of his sister-in-law, who committed suicide in June, Justice Shiv Narayan Dhingra said that before registering an FIR, police must investigate in detail the allegations levelled against a person. Justice Dhingra said it has been noticed that innocent family members of the husband also sometimes suffered following a complaint of dowry harassment/death and granted anticipatory bail to one Jaipal, a resident of Patel Nagar.

The police should not harass the family members and investigate thoroughly before arresting the accused persons in any dowry case, the court added. While submitting his bail plea before the court, Jaipal contended that he did not demand anything either from the deceased or from any other member of her family. "There is absolutely no allegation in the entire prosecution story that the petitioner was involved in committing any act which can be covered under the four corners of the sections 498-A/304-B IPC", submitted Jaipal's counsel Amit Sahani.

As per the prosecution, on June 26 a complaint was lodged by Ramesh Chand alleging that besides his son-in-law Mahadev, the brother-in-law and sister-in-law of his daughter Geeta used to physically harass her which drove her to comit suicide. In his complaint, Ramesh Chand had mentioned that during marriage, the father-in-law demanded a car which they could not give. After two months of the marriage, her husband Mahadev started beating her. Jaipal also used to harass his daughter to bring more dowry and finally on June 26, she committed suicide, he alleged.

http://ibnlive.in.com/generalnewsfeed/news/bail-for-man-in-dowry-death-case/210955.html

___________________________

also @

Delhi Police rapped for filing dowry cases without proper probe

Posted On: 06-Aug-2010 08:50:45 PM Source: IANS

A day after the Supreme Court held that a person cannot be convicted for merely demanding dowry, the Delhi High Court Friday pulled up the Delhi Police for registering a case of dowry against a person without carrying out a proper probe.

While granting bail to a person arrested under the dowry act, Justice S.N. Dhingra observed that before registering an FIR, the police must investigate the allegations levelled against a person in a detailed manner.

As per the prosecution, the complainant in the case, Ramesh Chand had alleged his daughter Geeta's brother-in-law, Jaipal and sister-in-law used to physically harass her. Geeta had married Mahadev Feb 16.

In his complaint, Ramesh Chand mentioned that during marriage, his daughter's father-in-law demanded a car which they could not give. After two months of the marriage, Mahadev started beating her. Also according to prosecution, Geeta's brother-in-law also harassed her, asking her to bring more dowry. Geeta committed suicide June 26.

While submitting his bail plea before the court, Jaipal contended that he did not demand anything either from Geeta or from any other member of her family.

'He was not involved in any act pertaining to the cruelty for any demand of dowry. There is absolutely no allegation in the entire prosecution story that the petitioner was involved in committing any act which can be covered under the four corners of the sections 498-A (Husband or relative of husband of a woman subjecting her to cruelty) and 304-B (dowry death) of IPC (Indian Penal Code),' submitted Amit Sahney, his counsel.

He also said that the police registered a case against him only on the allegations of Ramesh Chand. 'Police could not find anything incriminating against him. The entire story of the prosecution is based on surmises and conjectures and there is absolutely nothing on record against him,' he submitted.

http://sify.com/news/delhi-police-rapped-for-filing-dowry-cases-without-proper-probe-news-national-kigvadcjjjh.html

No conviction for mere dowry demands - SC

             IN THE SUPREME COURT OF INDIA
             CRIMINAL APPELLATE JURISDICTION
             CRIMINAL APPEAL No. 854 of 2004

Amar Singh                                   ...... Appellant

                          Versus

State of Rajasthan                         ...... Respondent

                           WITH

         CRIMINAL APPEAL No.1411           of 2010
        (Arising out of SLP (Crl.) No. 4389 of 2004)

State of Rajasthan                           ...... Appellant

                          Versus

Jagdish & Anr.                             ...... Respondents

                         JUDGMENT

A.K. PATNAIK, J.

CRIMINAL APPEAL No. 854 of 2004

     This is an appeal against the judgment dated 07.10.2003

of the High Court of Rajasthan, Jaipur Bench, in D.B.

Criminal Appeal No.816 of 1998.
                               2

2.     The facts very briefly are that on 05.05.1992 Santosh

(the   deceased)   was   married   to   the   appellant   and   on

08.03.1993 she was found dead in her in-laws house. On the

same day, a written report was lodged with the police at the

Shivaji Park Police Station at Alwar, by the uncle of the

appellant, Ganga Sahai Saini, saying that while the deceased

was boiling the water she got engulfed in flames and died. On

the same day, another written report was lodged with the

police by the father of the deceased, Babu Lal, that the

deceased used to be harassed and humiliated in connection

with demand of dowry and on receiving the information that

she has died in an electric current accident, he rushed to the

spot and found the body of Santosh in charred condition. On

the basis of such information given by Babu Lal, the police

registered FIR No.53 of 1993 for the offences under Sections

498A and 304B of the Indian Penal Code (for short `IPC'). The

investigation was carried out and charge-sheet was filed by the

police in the Court of Additional Chief Judicial Magistrate

No.2, Alwar, against the appellant, Jagdish (younger brother of

the appellant), Smt. Gordhani (mother of the appellant), Khem
                              3

Chand (sister's husband of the appellant), Gyatri Devi (wife of

Khem Chand) and Girdhari Lal (father of Khem Chand). The

case was committed to the Sessions Court and tried by the

Additional Sessions Judge No.2, Alwar, as Sessions Case

No.32 of 1998. The Additional Sessions Judge framed charges

under Section 147, 304B and 498A IPC against all the

accused persons.   At the trial, the prosecution examined 16

witnesses and exhibited 31 documents. After statement of the

accused under Section 313 of the Code of Criminal Procedure

(for short `Cr.P.C.'), no defence witness was examined.    The

Additional Sessions Judge convicted the appellant, Jagdish

and Gordhani under Sections 498A and 304B IPC and

imposed the sentence of three years rigorous imprisonment

and a fine of Rs.1,000/-, in default to suffer further three

months' simple imprisonment for the offence under Section

498A IPC and imposed the sentence of imprisonment for life

and a fine of Rs.5,000/-, in default further six months' simple

imprisonment for the offence under Section 304B IPC.        On

appeal, the High Court acquitted Jagdish and Gordhani but

confirmed the conviction of the appellant under Section 498A
                              4

and 304B IPC.

3.   Mr. Tara Chandra Sharma, learned counsel for the

appellant, submitted that the appellant has already served out

the sentence under Section 498A IPC and, therefore, his

challenge in this appeal is confined to the conviction and

sentence under Section 304B IPC.      He submitted that the

main ingredient of the offence under Section 304B IPC is that

the deceased must have been subjected to cruelty or

harassment in connection with any "demand for dowry" and in

this case the prosecution has not established that the

deceased was subjected to cruelty or harassment by the

appellant in connection with any demand for dowry.          In

support of his submission, he relied on the decisions of this

Court in Biswajit Halder   alias Babu Halder and Others v.

State of West Bengal [(2008)1 SCC 202] and Durga Prasad and

Another v. The State of M.P. [2010(6) SCALE 18]. He referred

to the evidence of PW-2 (father of the deceased), PW-4 (mother

of the deceased) and PW-5 (brother of the deceased) to show

that there was no demand for dowry made by the appellant

and that the appellant only wanted Rs.10,000/- to start a
                               5

shop and this request for a sum of Rs.10,000/- cannot be held

to be a demand for dowry.

4.   He further submitted that there were, in fact, material

contradictions in the testimony of PW-2, PW-4 and PW-5 with

regard to the demand for dowry and, therefore, their evidence

cannot be relied upon to sustain the conviction of the

appellant. He submitted that in any case the evidence of PW-

2, PW-4 and PW-5 on whatever was stated to them by the

deceased regarding demand for dowry and harassment or

cruelty were at best hearsay evidence and not admissible

either under Section 60 of the Indian Evidence Act, 1872 or

under Section 32 of the Indian Evidence Act, 1872. In support

of his submission, he cited Rattan Singh v. State of H.P. [(1997)

4 SCC 161].

5.   He finally submitted that the court while recording the

statement of the appellant under Section 313 Cr.P.C. did not

put any question to enable the appellant to explain any

circumstances appearing in the evidence against him.          He

relied on Latu Mahto and Another v. State of Bihar (Now

Jharkhand) [(2008) 8 SCC 395] to contend that circumstances
                             6

about which the accused was not asked to explain cannot be

used against him. According to learned counsel Mr. Sharma,

this is not a case where the prosecution has been able to

establish the offence under Section 304B IPC against the

appellant and hence the judgment of the High Court should be

set aside.

6.   Dr. Manish Singhvi, learned counsel appearing for the

State of Rajasthan, in reply submitted that the facts of this

case would show that the deceased did not die under normal

circumstances.   He referred to the post-mortem report (Ex.P-

21) which indicated that the deceased suffered 100% burns.

He submitted that Dr. Mahendra Kr. Gupta (PW-9), who

performed the autopsy, has opined that the burns on the

deceased were after strangulation and throttling inasmuch as

there were fractures of larynx and trachea and the larynx was

found congested. He submitted that the deceased got married

on 05.05.1992 and died on 08.03.1993 within ten months of

the marriage and there was sufficient evidence to show that

she was subjected to cruelty and harassment by the appellant

and other members of his family.
                               7

7.     He submitted that the evidence of PW-2, PW-4 and PW-5

establishes that there was demand for dowry of a Scooter or

Rs.25,000-/. He referred to the evidence of PW-4 and PW-5 to

show that the appellant used to taunt the deceased saying

that she has come from a hungry house and that the appellant

had himself visited the house of PW-4 and demanded a sum of

Rs.10,000/-.    He vehemently submitted that this is a clear

case of continuous harassment of the deceased in connection

with demand of dowry not only by the appellant but also by

his other family members. He cited Pawan Kumar and Others

v. State of Haryana [(1998) 3 SCC 309] to contend that such

taunting and teasing of a bride for not bringing dowry amount

to harassment or cruelty within the meaning of Section 304B

IPC.

8.     In reply to the submission of Mr. Sharma that statements

made by the deceased before PW-2, PW-4 and PW-5 regarding

harassment and demand of dowry were not admissible either

under Section 60 or under Section 32 of the Evidence Act, he

submitted that this Court in Sharad Birdhichand Sarda v.

State of Maharashtra [(1984) 4 SCC 116] has held that Section
                              8

32 of the Indian Evidence Act is an exception to the rule of

hearsay and makes admissible the statement of a person who

dies, provided the statement related to the cause of death or

exhibits circumstances leading to the death.     He submitted

that in the present case the statements made by the deceased

to PW-2, PW-4 and PW-5 related to the cause of her death,

namely, demand for dowry and therefore would be admissible

under Section 32 of the Indian Evidence Act, even if the

deceased while making the statement was not expecting the

death. He submitted that in the present case the prosecution

has firmly established that soon before her death the deceased

has been subjected to cruelty or harassment by the appellant

in connection with demand for dowry and therefore the Court

has to presume under Section 113B of the Indian Evidence Act

that the appellant has caused the dowry death and this

presumption has not been rebutted by the appellant by

leading any evidence.

9.   Dr. Singhvi finally submitted that since there were

concurrent findings of fact rendered by the trial court and the

High Court that the deceased died due to asphyxia and was
                              9

burnt after strangulation so as to make out a case of accident

and the burns on the body of the deceased were found to be

100%, this was a case of ghastly murder and therefore not a fit

case in which this Court should either set aside the conviction

of the appellant or reduce the sentence imposed on him by the

High Court.

10.   We find that the evidence of PW-4 (mother of the

deceased) is that after marriage, the deceased came several

times and she also came about one month prior to her death

and she used to complain about the demand of a Scooter and

harassment by her mother-in-law Gordhani and that she had

also told that the appellant used to taunt her that she has

come from a hungry house and brought nothing and the last

time when she came she stayed for two days and returned and

one month thereafter she was murdered.          Similar is the

evidence of PW-5 (brother of the deceased) that whenever the

deceased used to come home she used to complain that her

in-laws have been teasing her and she had also stated that

they demanded Scooter or Rs.25,000/- for a shop and that

one month prior to her death she came home and complained
                              1

that her mother-in-law and all other in-laws used to torture

her and taunt her that she did not bring anything and that the

appellant also used to tease her.    It is thus clear from the

evidence of PW-4, as corroborated by the evidence of PW-5,

that the deceased has made statements before them that her

in-laws as well as the appellant have been demanding a

Scooter or Rs.25,000/- for a shop and have been taunting and

teasing her for not meeting the demand of dowry within a

couple of months before her death.       Such evidence of PW-4

and PW-5 with regard to the statements made by the deceased

is no doubt hearsay but is admissible under clause (1) of

Section 32 of the Indian Evidence Act.

11.   Clause (1) of Section 32 of the Indian Evidence Act

provides that statements made by a person as to the cause of

his death, or as to any of the circumstances of the transaction

which resulted in his death, in cases in which the cause of

that person's death comes into question, are themselves

relevant facts. In the present case, the cause of death of the

deceased was a question to be decided and the statements

made by the deceased before PW-4 and PW-5 that the
                               1

appellant used to taunt the deceased in connection with

demand of a Scooter or Rs.25,000/- within a couple of months

before the death of the deceased are statements as to "the

circumstances of the transaction which resulted in her death"

within the meaning of Section 32(1) of the Indian Evidence

Act.

12.    In Pakala Narayana Swami v. Emperor [AIR 1939 PC 47]

Lord Atkin held that circumstances of the transaction which

resulted in the death of the declarant will be admissible if

such circumstances have some proximate relation to the

actual occurrence. The test laid down by Lord Atkin has been

quoted in the judgment of Fazal Ali, J. in Sharad Birdhichand

Sarda v. State of Maharashtra (supra) and His Lordship has

held that Section 32 of the Indian Evidence Act is an exception

to the rule of hearsay evidence and in view of the peculiar

conditions in the Indian Society has widen the sphere to avoid

injustice. His Lordship has held that where the main evidence

consists of statements and letters written by the deceased

which are directly connected with or related to her death and

which reveal a tell-tale story, the said statements would clearly
                               1

fall within the four corners of Section 32 and, therefore,

admissible and the distance of time alone in such cases would

not make the statements irrelevant.      The difference in the

English Law and the Indian Law has been reiterated in Rattan

Singh v. State of H. P. (supra) and it has been held therein that

even if the deceased was nowhere near expectation of death,

still her statement would become admissible under Section 32

(1) of the Indian Evidence Act, though not as a dying

declaration as such, provided it satisfies one of the two

conditions set forth in this sub-section. The argument of Mr.

Sharma, therefore, that the evidence of PW-4 and PW-5

regarding the statements made by the deceased before them

are hearsay and are not admissible is misconceived.

13.   The prosecution, therefore, has been able to show that

soon before her death the deceased has been subjected by the

appellant to taunt in connection with demand for dowry. This

Court has held in Pawan Kumar and Others v. State of

Haryana (supra) that a girl dreams of great days ahead with

hope and aspiration when entering into a marriage, and if

from the very next day the husband starts taunting her for not
                               1

bringing dowry and calling her ugly, there cannot be greater

mental torture, harassment or cruelty for any bride and such

acts of taunting by the husband would constitute cruelty both

within the meaning of Section 498A and Section 304B IPC.

14.   Once it is established by the prosecution that soon before

her death the deceased was subjected by the appellant to

harassment or cruelty in connection with demand for dowry,

the Court has to presume that the appellant has committed

the offence under Section 304B IPC. This will be clear from

Section 113B of the Indian Evidence Act which states that

when the question is whether a person has committed the

dowry death of a woman and it is shown that soon before her

death such woman has been subjected by such person to

cruelty or harassment for, or in connection with, any demand

for dowry, the Court shall presume that such person had

caused the dowry death. The prosecution in this case had led

sufficient evidence before the Court to raise a presumption

that the appellant had caused the dowry death of the deceased

and it was, therefore, for the appellant to rebut this

presumption.
                               1

15.   Mr. Sharma has, however, argued that the appellant was

not given such opportunities to personally explain any

circumstances appearing in the evidence against him. But we

find from the statement of the appellant recorded under

Section 313 Cr.P.C. that the evidence of PW-4 that the

deceased came to her house many times after marriage and

lastly came to her house prior to her death saying that

Girdhari and Khem Chand demanded a Scooter and that the

appellant said that she came from a poor family, was brought

to the notice of the appellant but the appellant simply denied

the same. The appellant has also chosen not to examine any

defence witness to rebut the presumption of dowry death

against him under Section 113B of the Indian Evidence Act.

The trial court and the High Court were thus right in holding

that the appellant was guilty of the offence under Section

304B IPC.

16.   For the offence under Section 304B IPC, the trial court

has imposed the maximum punishment of life imprisonment

saying that the appellant has sacrificed the newly-wed bride

with cruelty and harshness to satisfy his lust of dowry illegally
                                1

and hence he does not deserve any mercy and considering the

nature of the offence committed by him and his conduct, he

deserves the maximum punishment of life imprisonment. The

High Court has only sustained the conviction and punishment

of life imprisonment imposed on the appellant under Section

304B IPC.     Dr. Singhvi, however, suggested that this was a

case of strangulation of a bride before she was burnt and for

this   reason,   the   High   Court   sustained   the   maximum

punishment of life imprisonment.

17.    The fact remains that the appellant was not charged for

the offence of murder under Section 302 IPC presumably

because during investigation no materials were available to

establish the offence under Section 302 IPC against the

appellant.   In Smt. Shanti and Another v. State of Haryana

[(1991) 1 SCC 371] cited by Mr. Sharma, this Court has held

that where there is no evidence as to the actual part played by

the accused, a minimum sentence of seven years would serve

the ends of justice.    In the present case, since there is no

evidence as to the actual role played by the appellant in the
                                1

death   of   the   deceased,   a     punishment      of    ten   years'

imprisonment would suffice in the ends of justice.

18.   In the result, the appeal is partly allowed and the

sentence of life imprisonment imposed on the appellant under

Section 304B IPC is reduced to ten years and the impugned

judgment of the High Court is modified accordingly. In case

the   appellant    has   undergone    the   period    of   ten   years

imprisonment, he shall be released forthwith unless he is

wanted in any other case.

CRIMINAL APPEAL No. 1411           of 2010
(Arising out of SLP (Crl.) No. 4389 of 2004)

      Leave granted.

2.    This is an appeal filed by the State of Rajasthan against

the judgment dated 07.10.2003 of the                 High Court of

Rajasthan, Jaipur Bench, in D.B. Criminal Appeal No.816 of

1998 acquitting Jagdish and Gordhani of the charges under

Sections 498A and 304B IPC.

3.    The only contention raised by Dr. Manish Singhvi,

learned counsel for the State of Rajasthan, is that although
                              1

the evidence on record against Amar Singh, Jagdish and

Gordhani was the same, the High Court took the view that

Jagdish and Gordhani have been implicated because they

were members of Amar Singh's family and that the charges

against them are not proved beyond reasonable doubt.        He

vehemently submitted that no reasons whatsoever have been

indicated by the High Court in the impugned judgment to

show how the cases of Jagdish and Gordhani were different

from that of Amar Singh. According to him, the High Court

should have sustained the order of the trial court convicting

Jagdish and Gordhani.

4.   We are unable to accept this submission of Dr. Singhvi.

The evidence of PW-2, PW-4 and PW-5 shows that Jagdish and

Gordhani played a role in the demand of dowry of a Scooter or

Rs.25,000/- for Amar Singh, but demand of dowry by itself is

not an offence under Section 498A or Section 304B IPC.

What is punishable under Section 498A or Section 304B IPC is

the act of cruelty or harassment by the husband or the relative

of the husband on the woman. It will be also clear from

Section 113B of the Indian Evidence Act that only when it is
                             1

shown that soon before her death a woman has been

subjected by any person to cruelty or harassment for, or in

connection with, any demand for dowry, the Court shall

presume that such person had caused the dowry death within

the meaning of Section 304B IPC.    The act of subjecting a

woman to cruelty or harassment for, or in connection with,

any demand for dowry by the accused, therefore, must be

established by the prosecution for the Court to presume that

the accused has caused the dowry death.

5.   PW-2 (father of the deceased) has not stated in his

evidence before the Court that Jagdish and Gordhani, in any

way, subjected the deceased to any harassment or cruelty.

PW-4 (mother of the deceased), however, has stated that the

deceased used to complain about the demand of a Scooter by

Girdhari and harassment by her mother-in-law Gordhani, but

PW-4 has not stated what was the exact act of Gordhani by

which the deceased felt harassed.    The evidence of PW-5

(brother of the deceased) is that whenever the deceased used

to come home she used to complain that her in-laws have

been teasing her and they were demanding a Scooter or
                               1

Rs.25,000/- for a shop and that when the deceased came

home one month prior to her death, she complained that her

mother-in-law and all other in-laws used to torture her and

taunt her that she did not bring anything, but PW-5 has not

described the exact conduct of the mother-in-law and other in-

laws on account of which the deceased felt tortured and

taunted. On the other hand, the evidence of PW-4 is clear that

Amar Singh used to taunt her that she has come from a

hungry house. Thus, there was evidence in the case of Amar

Singh about his exact conduct which caused harassment to

the deceased but there was no such evidence in the case of

Jagdish and Gordhani.     A prosecution witness who merely

uses the word "harassed" or "tortured" and does not describe

the exact conduct of the accused which, according to him,

amounted to harassment or torture may not be believed by the

Court in cases under Section 498A and 304B IPC. For this

reason, the High Court has taken a view that the charges

against Jagdish and Gordhani have not been established

beyond   reasonable    doubt       and   that   their   case   is

distinguishable from that of Amar Singh and that Jagdish and
                               2

Gordhani appear to have been implicated because they were

members of Amar Singh's family.

6.   In Kans Raj v. State of Punjab and Others [(2000) 5 SCC

207], this Court cautioned that in cases where accusations of

dowry deaths are made, the overt acts attributed to persons

other than the husband are required to be proved beyond

reasonable doubt and by mere conjectures and implications

such relations cannot be held guilty for the offence relating to

dowry deaths.     In the aforesaid case, this Court further

observed that a tendency has developed for roping in all

relations of the in-laws of the deceased wives in the matters of

dowry deaths which, if not discouraged, is likely to affect the

case of the prosecution even against the real culprits.

7.   We, therefore, do not find any substance in the

contention of Dr. Singhvi that the High Court should have

sustained the conviction of Jagdish and Gordhani and we

accordingly dismiss this appeal.

                                             ..........................J.
                                            (R. M. Lodha)
                   2

                        ..........................J.
                       (A. K. Patnaik)
New Delhi,
August 03, 2010.

Lower courts can’t hear contempt proceedings: Delhi HC

Lower courts can’t hear contempt proceedings: Delhi HC

Crl.M.C. No.2899/2009  Syed Nusrat Ali  V State & Anr.        Page 1 Of  4
*              IN THE HIGH COURT OF DELHI AT NEW DELHI      
             Date of Reserve: 12th
July, 2010
Date of Order:  August 05 , 2010
+ Crl.MC 2899 of 2009
%                    05.08.2010
  Syed Nusrat Ali            ...Petitioner         
Through: Mr. Abhay Kumar & Mr. Tenzing Tsering, Advocate     
  Versus  
  State & Anr.              ...Respondents   
Through: Mr. Vikas Pahwa, Advocate for State  
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 way of present petition under Section 482 Cr.P.C the petitioner has prayed for
quashing  of an  order dated 20th
  July, 2009 passed by Special  Judge, NDPS, Patiala
House Courts, New Delhi.  Learned Special Judge, NDPS,  vide the impugned order
partly allowed the Crl. Revision and partly set aside the order dated 27th
  April, 2009
passed by learned ACMM and disposed of the revision petition. 
2.  Brief facts  relevant for deciding this  petition are that learned ACMM vide order
dated 27th
April, 2009, on an application made by petitioner no.1 Syed Nusrat Ali passed
an order directing ACP Mr. Amit Roy  and the Investigating Officer to appear in person
and to show cause as to why proceedings under Contempt of Courts Act and   for other
offences be not initiated against both of them. Against this order of learned ACMM, the
State filed a revision and the learned Special Judge NDPS Act vide order dated 20th
July, Crl.M.C. No.2899/2009  Syed Nusrat Ali  V State & Anr.        Page 2 Of  4
2009 set aside the order dated 27th
April, 2009 passed by learned ACMM qua ACP Mr.
Amit Roy but held the order qua Investigating Officer Ram Kumar Chaudhary. 
3.  By present petition applicant/ petitioner no.1 Syed Nusrat Ali assailed the order of
learned Special Judge (NDPS Court)  contending that there was no power of revision
vested in learned Special Judge since the order passed by learned ACMM was an
interlocutory order. Petitioner also assailed  the order passed by learned Special Judge,
NDPS on merits.  
4.  I have perused the order of learned ACMM and learned Special Judge, NDPS.
After perusal of the order of learned ACMM, I find that learned ACMM grossly exceeded
his powers in issuing show cause notice as to why  proceedings under Contempt of
Courts Act be not initiated against the investigating officer and ACP. It is well settled that
neither ACMM nor any Court below the High Court has inherent powers under Cr.P.C.
The inherent powers under Criminal law are vested only in High Court. All courts below
High Court can exercise statutory powers only in accordance with Cr.P.C. When a Court
of ACMM or a Court of learned ASJ issues show cause notice to any person, it must be
in accordance with the provisions of Cr.P.C. Surprisingly, the learned ACMM has not
even mentioned as to under which provisions of law, he had the authority or powers to
issue show cause notice to an investigating officer or ACP to initiate proceedings under
Contempt of Courts Act or to initiate proceedings for commission of offence. It is
expected that when a matter comes before learned Metropolitan Magistrate, ACMM or
Sessions Judge,    during trial for  exercise  of  its powers, it has to specify as to under
which provision of Cr.P.C or Penal Code, the powers were being exercised. If there was
no provision under Cr.P.C of issuing a show cause notice to an investigating officer or to
his superior officer  for contempt of court, such powers cannot be exercised by the
subordinate courts.  Crl.M.C. No.2899/2009  Syed Nusrat Ali  V State & Anr.        Page 3 Of  4
5.  A perusal of order  of learned ACMM would  show that  he considered that the
conduct of two police officials had the effect of lowering  the reputation of the Court of
learned ACMM in the eyes of the applicant or other persons associated with him. He,
therefore, issued  a  show cause notice  to both of them. A perusal of provisions of
Contempt of Courts Act would show that a Court subordinate to High Court has no
powers to initiate proceedings under Contempt of Courts Act. Under Section 10 of
Contempt of Courts Act, the High Court  alone can  take cognizance of  an  alleged
contempt having been committed in respect of subordinate Courts. In order to bring the
conduct to the notice of High Court, a subordinate court is supposed to send a reference
of the matter to the High Court. A subordinate court cannot itself assume  jurisdiction
under Contempt of Courts Act and issue show cause notice as to why contempt
proceedings should not be initiated. The provisions of Contempt of Courts Act cannot be
resorted to by subordinate court even as a threatening provision. In the present case, the
learned ACMM had all material before him,  if he considered that it was a fit case for
initiation of proceedings under Contempt of Courts Act, he ought to have sent a
reference to the High Court and asked  the  High Court for initiation of contempt
proceedings. It was for the High Court  to issue show cause notice to the officer
concerned. The order  of learned ACMM suffered from total lack of jurisdiction. The
learned ACMM exercised the powers not vested in it. The learned Special Judge, NDPS,
did  not discuss  the powers available to learned  ACMM under  Cr.P.C and only after
discussing some facts allowed the revision petition qua one of the police officials.  I
consider that the order of learned ACMM was itself not tenable. 
6.  It is settled law that this Court can suo moto exercise powers under Article 227 of
the Constitution of India to keep the subordinate courts within the four walls of law.  I,
therefore, in exercise of powers under Article 227 of the Constitution of India, set aside Crl.M.C. No.2899/2009  Syed Nusrat Ali  V State & Anr.        Page 4 Of  4
the order of learned ACMM issuing show cause notice to the Investigating Officer/ ACP. 
However, Court of learned ACMM will have liberty to refer issue of contempt to High
Court.  The present revision petition was filed by the applicant Syed Nusrat Ali who
wanted proceedings against ACP and Investigating Officer to be initiated. The applicant
(petitioner no.1) would be at liberty to take resort to appropriate law to initiate action, if so
advised,  and if there was a cause for the same. The action, as initiated by learned
ACMM, was illegal and contrary to law. 
7.  The present petition stands disposed of with above observations.          
August 05, 2010                               SHIV NARAYAN DHINGRA J.
rd

 

http://lobis.nic.in/dhc/SND/judgement/05-08-2010/SND05082010CRLMM28992009.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

http://lobis.nic.in/dhc/SMD/judgement/27-07-2010/SMD26072010CW101802009.pdf