Uttarakhand High Court
Unknown vs Union Of India And Others on 22 July, 2022
Author: Sanjaya Kumar Mishra
Bench: Sanjaya Kumar Mishra
1
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (Criminal) No. 857 of 2022
Aashanya Tripathy
..................Petitioner
-Versus-
Union of India and others
.............Respondents
Present: Mr. Mayank Datta, learned counsel for the petitioner.
Mr. Lalit Sharma, learned Standing Counsel for the Union of India.
Mr. P.S. Uniyal, learned Brief Holder for the State.
Mr. B.S. Adhikari, learned counsel for the intervener.
Date of Hearing and Order: 22.07.2022
Sri Sanjaya Kumar Mishra, J.
Upon hearing the learned counsel for the parties, the Court made the following order:
1. The petitioner has prayed for issuance of a writ in the nature of Mandamus directing the respondent no. 1 to produce before the Court the copy of the Look Out Circular (LOC) and issue a writ of Certiorari for quashing the LOC arising out of F.I.R. No. 0251 of 2021, Prem Nagar, Police Station Dehradun. She has further prayed to expunge the endorsement "Cancelled without prejudice" from the passport of the petitioner as it may create troubles for the petitioner while undertaking travel abroad and direct an enquiry or investigation into the illegal, wrongful and malafide conduct of the officials of the respondents to ascertain and fix the responsibility. She has also prayed for grant of compensation of Rs. 1.18 lakhs that was actually spent towards travel to Australia and additional 2 damages to the tune of Rs. 10 lakhs on account of harassment. The facts of the case are as follows:-
(i) The petitioner was working as an HR professional at Achieve, Ad, in Sydney Australia, quit job and came to New Delhi on 23.10.2020 to attend the marriage ceremony of her brother on 09.12.2020.
She made an application for appropriate permission for studying MBA in Canada.
(ii) On 22.01.2022 a notice purported to have been issued under Section 41A of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for brevity) upon the parents of the petitioner at their residence in Ghaziabad, by the policeman. She could know, the FIR has been lodged against the petitioner, her parents and brother for commission of crime under Section 498-A, 323, 504, 506 of the Indian Penal Code, 1860 (hereinafter referred to as "the Penal Code"
for brevity) and under Section 3 and 4 of the Dowry Prohibition Act, 1961.
(iii) On 08.03.2022, the petitioner had to leave for Australia on an extended visa for seven months but she was detained at Immigration Counter, the Indira Gandhi International Airport, New Delhi. It was brought to her notice that an LOC has been issued by the S.S.P., Dehradun, on the request made by the Investigation Officer of the aforesaid criminal case. Thereafter, the petitioner appeared before the Police Officer on 14.01.2022 in 3 pursuance of investigation under Section 41A of the Code. On 11.03.2022 at present the petitioner prays that the LOC be quashed by Bureau of Immigration.
2. The learned counsel appearing for the petitioner would take the Court to Page No. 52, (Annexure 10, to the writ petition) an Office Memorandum, issued by the Ministry of Home Affairs, Government of India regarding the standard procedures to be followed in issuance of Look Out Circulars in respect of Indian citizens and foreigners. For the purpose of this case, paragraphs 6 and 7 are relevant as it was the circular incorporates itself the directions passed by the High Court of Delhi. We find it appropriate to quote paragraphs 6 & 7 are as follows:-
"6. In a related judgment delivered on 11.08.2010 passed by the Hon'ble High Court of Delhi in WPCRL No. 1315 of 2008 in the case of Sumer Singh Salkan Vs. Assistant Director and others and Crl. reference no. 1/2006 Court on its Own Motion Re: State vs. Gurnek Singh etc. the Court has answered four questions raised by a lower court on the LOC. These questions are as below:-
(a) What are the categories of cases in which the investigating agency can seek recourse of Look-Out-Circular and under that circumstances?4
(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?
7. The High Court has answered these questions in its judgment dated 11.08.2010 which are reproduced below for guidance of all concerned agencies:-
(a) Recourse to LOC can be taken by the 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 5 opening LOC by passing an order in this respect.
(c) The person against whom LOC is issued must join investigation by appearing before Investigating Officer 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.
3. Thus, it is clear that the petitioner has two alternative remedies viz., approaching the Court concerned and also approaching the officer, who has passed the order regarding issuance of LOC.
4. Keeping in view the facts of the case that this Court is constrained to observe that the Investigating Agency has made an erroneous submissions that the petitioner 6 was evading arrest, in fact, there was never any attempt on the part of the Investigating Agency to arrest her as the Investigating Agency was proceeding by following procedure established under Section 41A of the Code, and therefore, it cannot be said at this stage that the petitioner was evading arrest. Moreover, after submission of charge-sheet, summon has been issued in favour of the petitioner and it is not the case of any of the parties that NBWs has been issued by the trial court against the petitioner so, in considered opinion of this Court, the issuance of LOC appears to be erroneous on the face of the records, which needs to be set-aside by the proper authority. It also appears to this Court that there is no proper application of mind by the S.S.P., Dehradun, in the light of the contents of the Circular cited above.
5. Since all the parties have not filed their counter affidavit and, in fact, on the last listing, no notice has been given and the State was only directed to take instructions, if we adjourn the case for filing counter affidavit, then it may lead to delay, which may cause prejudice to the petitioner's chances of getting a job abroad.
6. In that view of the matter, without calling for the counter affidavits, however, keeping the observations made above in mind, this Court dispose of the writ petition by giving liberty to the petitioner to file appropriate applications before the learned Trial Judge in-seisin of the criminal case initiated against the petitioner with two prayers:-
7Firstly, she is at liberty to file an application for quashing the LOC issued against her by the learned Jurisdictional Magistrate, in seisin of the case. On such an event, the petitioner shall be heard and the records shall be examined and if it is not found from the Case Diary, then the Investigating Officer did not make any attempt to arrest the petitioner or that no NBWs was ever issued by any of the courts, then it shall be appropriate, in our considered opinion, to grant the relief to the petitioner by the learned Magistrate for quashing the LOC and, Secondly, the petitioner is also at liberty to file application under Section 205 of the Code for dispensing with personal appearance of accused, which should be considered favourably by the learned Magistrate.
7. With such observations, the writ petition is disposed of. The petitioner is at liberty to file the aforesaid two applications as described by us in the preceding paragraphs within a period of seven days, her application shall be considered and disposed of within a period of seven days from filing thereof by the learned Magistrate. If the LOC is quashed by the learned Magistrate, it shall be natural corollary to it that the endorsement made by the Immigration Authority "cancelled without prejudice" shall also be held to be deleted.
88. I have also heard the learned counsel for the intervener. Since this is a matter between Investigating Agency on the one hand, and the Competent Authority notified or the Courts on the other hand, between the petitioner and respondents, the complainant has no locus-standi to register the application, hence, the application for intervention (IA No. 6 of 2022) is rejected.
9. There shall be no order as to costs.
(Sanjaya Kumar Mishra, J.) 22.07.2022 (Grant urgent certified copy as per Rules) A/-