Andhra Pradesh High Court - Amravati
Gattupalliujwal vs State Of Andhra Pradesh, on 30 October, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Writ Petition No.16731 of 2019
ORDER:
1. This writ petition under Article 226 of Constitution of India is filed, to issue writ of mandamus, declaring the inaction of respondents in withdrawing Red Corner Notice/Look out notice issued against the petitioner, despite the written representation dated 05.10.2019 as illegal, arbitrary and violative of Articles 14, 19 and 21 of Constitution of India and consequently direct the respondents to withdraw Red Corner notice/Look out notice issued against this petitioner.
2. It is alleged that based on the report filed by sister-in-law of the petitioner dated 12.03.2018, Station House Officer, Piduguralla Police Station, Guntur District, registered a crime against the petitioner in Crime No.119 of 2018. In the said crime, his elder brother is arrayed as 1st accused, while the petitioner was arrayed as 4th accused and parents of the petitioner including mediators were all arrayed as accused Nos.2, 3, 5, 6 and 7. On the basis of the above crime, police took up investigation and filed charge sheet before Judicial Magistrate of First Class, Piduguralla against the other accused, while deleting the name of the petitioner and two others, after obtaining necessary approval from the superior police officer i.e. Sub-Divisional Police officer and at that stage the sister- in-law of the petitioner filed protest petition and on the basis of enquiry conducted in the protest petition in Crl.M.P 286 of 2019 in C.C No.70 of 2019, cognizance was taken for the offence 2 MSM, J wp_16731_ 2019 punishable under Section 498-A of Indian Penal Code (for short 'I.P.C') and other section against the petitioner. However, the order of taking cognizance for the offence punishable under Section 498- A of I.P.C and other offences against this petitioner is challenged in Crl.R.C No.917 of 2019 before this Court and this Court by order dated 18.09.2019 was pleased to pass an order, granting stay of all further proceedings against 5th accused/petitioner herein. Despite grant of stay, the respondents issued Red Corner notice/Look out notice against the petitioner.
3. It is the contention of the petitioner that he was never in the company of the other accused. He was studying B.Tech at Visakhapatnam during the period of alleged commission of offence. The petitioner has completed M.S Operations Research in Columbia University, New York and at present he is working in New York.
4. The petitioner though submitted representation dated 05.10.2019, the respondents did not consider the representation and it is pending for consideration before the authorities concerned. Therefore he filed the present petition to declare the inaction on the part of respondents to withdraw the Red Corner notice/Look out notice, issued against this petitioner i.e. 5th accused in C.C 70 of 2019.
5. The Learned Counsel for the petitioner, during hearing, reiterated the contentions, while drawing the attention of this Court to an unreported judgment in Rajesh Sharma and others v.
3 MSM, J wp_16731_ 2019 State of Uttar Pradesh and another and on the strength of the principle laid down therein, requested to pass appropriate order, recalling the Red Corner notice/Look out notice and requested to issue appropriate direction to the respondents, enabling the petitioner to come back to India.
6. The learned Assistant Government Pleader for Home, supported issuance of Red Corner notice/Look out notice, while contending that the petitioner shall make a representation before the authorities concerned and considering such representation, 3rd respondent will pass appropriate orders, withdrawing the look out notice, if they satisfy that there is no interference with the investigation and extending cooperation for the trial of the case and requested to dismiss the petition, at the stage of admission.
7. It is an undisputed fact, that the sister-in-law of the petitioner K. Sandhya Rani, lodged a report with the police, on the basis of the same, a crime was registered in Crime No.119 of 2018 and later after completion of entire investigation, the investigating agency, concluded that the petitioner did commit no offence along with accused Nos.6 and 7 and filed charge sheet before the concerned Magistrate after obtaining necessary approval from the Sub-Divisional Police Officer and thus, the petitioner was not an accused before the Magistrate. On account of filing protest petition by the sister-in-law of the petitioner, the Magistrate took cognizance of the offence punishable under Section 498-A of I.P.C 4 MSM, J wp_16731_ 2019 against the petitioner also, however, the same was stayed by this Court in Crl.R.C No.917 of 2019 by order dated 18.09.2019. Therefore, the petitioner is deemed to be not an accused as on date, on account of the stay granted by this Court. The respondents issued Red Corner notice/Look out notice against the petitioner, so as to disable him from entering into moving out of the country. The petitioner made a representation dated 05.10.2019 to withdraw the notices, as the entire investigation is completed and question of extending co-operation of the petitioner, does not arise. But the representation is kept pending for the last many days and no order has been passed till date.
8. Red Corner notice can be issued only in certain circumstances. But the petitioner is working at New York, on account of pendency of Red Corner notice/look out notice, the petitioner is unable to come back to India, apprehending his arrest in connection with the above calendar case. The Apex Court in Rajesh Sharma and others v. State of Uttar Pradesh and another issued considered guidelines as to when Red Corner notice can be issued in a case punishable under Section 498-A of I.P.C and made it clear as follows:
"arrest in an offence under Section 498-A of I.P.C should be only after recording reasons and express approval from the Superintendent of Police. In respect of relatives who are ordinarily residing outside India, the matter should proceed only if the Investigating Officer is convinced that arrest is necessary for fair investigation. In such cases impounding of passport or issuance of red corner notice should be avoided. Procedure under Section 14 of the Protection of Women from 5 MSM, J wp_16731_ 2019 Domestic Violence Act, 2005, of counseling should be made mandatory before registration of a case under Section 498-A of I.P.C".
In view of the law declared by the Apex Court in Rajesh Sharma and others v. State of Uttar Pradesh and another, issue of red corner notice against the family members of the husband of the victim of an offence punishable under Section 498- A of I.P.C is quashed. However, the Apex Court and the other courts laid down certain guidelines as to when such a red corner notice is to be issued. Based on the guidelines, issued in Sumer Singh Salkan v. Asst. Director and others1, the Delhi High Court observed as follows:
Look-out-Circular issued against the petitioner shall be withdrawn within 24 hours of giving undertaking by the petitioner.
One of the questions raised in the reference are as under:
What procedure is required to be followed by the investigating agency before opening a Look-out-circular?
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.1
(2010) DMC 666 6 MSM, J wp_16731_ 2019 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.
9. In C.Jeyashekar and another V. The Deputy Commissioner of Police, T.Nagar, Chennai and 3 others, the Madras High Court held that when the investigation of the case is culminated by filing a charge-sheet and consequent registration of calendar case, there is no question of keeping the look out notice alive, which was issued to ensure presence during the course of investigation. In view of the conclusions arrived by the Madras High Court in C.Jeyashekar and another V. The Deputy Commissioner of Police, T.Nagar, Chennai and 3 others is directly applicable to the present facts of the case, since investigation was completed and charge sheet was filed against the accused, deleting the name of the petitioner, cognizance order taken against the petitioner for the offence punishable under Section 498-A of I.P.C and other offences is already stayed by this Court. Therefore, keeping the red corner notice alive, after completion of investigation is an arbitrary exercise.
10. In Cheruvathur Chakkutty Thampi @ C.C Thampi v. Union of India and others the Madras High Court adverted to the law declared by the Delhi High Court. Based on judgment of Delhi High Court in Vikram Sharma v. Union of India, Ministry of Home Affairs, Government of India, issued guidelines for issue of LOC, dated 27.10.2010; the guidelines are as follows:
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a) The request for opening an LOC would be made by originating agency to Deputy Director, Bureau of Immigration (BoI), East Block-
VIII, R.K Puram, New Delhi - 66 (Telefax: 011-2619244) in the proforma enclosed:
b) The request for opening of LOC must invariably be issued with the approval of an officer not below the rank of i. Deputy Secretary to the Government of; or ii. Joint Secretary in the State Government; or iii. District Magistrate of the District concerned; or iv. Superintendent of Police (SP) of the District concerned; or v. SP in CBI or an officer of equivalent lever working in CBI; or vi. Zonal Director in Narcotics Control Bureau (NCB) or an officer of equivalent level (including Assistant Director (Ops.) in Headquarters of NCB); or vii. Deputy Commissioner or an officer of equivalent level in the Directorate of Revenue Intelligence or Central Board of Direct Taxes or Central Board of Excise and Customs; or viii. Assistant Director of IB/Bol; or ix. Deputy Secretary of R&Aw; or x. An officer not below the level of Superintendent of Police in National Investigation Agency; or xi. Assistant Director of Enforcement Directorate; or xii. Protector of Emigrants in the office of the Protectorate of Emigrant or an officer not below the rank of Deputy Secretary of the Government of India; or xiii. Designated officer to Interpol Further LOCs can also be issued as per directions of any Criminal Court in India.
c) The name and designation of the officer signing the Proforma for requesting issuance of an LOC must invariably be mentioned without which the request for issuance of LOC would not be entertained.
d) The contact details of the originator must be provided in column VI of the enclosed proforma. The contact telephone/mobile number of the respective control room should be mentioned to ensure proper communication for effective follow up action.
e) Care must be taken by the originating agency to ensure that complete identifying particulars of the person, in respect of whom the LOC is to be opened, are indicated in the Proforma mentioned above. It should be noted that an LOC cannot be opened unless a minimum of three identifying parameters, as given in the enclosed Proforma, apart from sex and nationality, are available. However, LOC can also be issued if name and passport particulars of the person concerned are available. It is the responsibility of the originator to constantly review the LOC requests and proactively provide additional parameters to minimize harassment to genuine passengers.
f) The legal liability of the action taken by the immigration authorities in pursuance of the LOC rests with the originating agency.
g) Recourse to LOC is to be taken in cognizable offences under IPC or other penal laws. The details in column IV in the enclosed Proforma regarding "reason for opening LOC' must invariably be provided without which the subject of an LOC will not be arrested/detained.
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h) In cases where there is no cognizable offence under IPC or other penal laws, the LOC subject cannot be detained/arrested or prevented from leaving the country. The originating agency can only request that they be informed about the arrival/departure of the subject in such cases.
i) The LOC will be valid for a period of one year from the date of issue and name of the subject shall be automatically removed from the LOC thereafter unless the concerned agency requests for its renewal within a period of one year. With effect from 1.1.2011, all LOCs with more than one year validity shall be deemed to have lapsed unless the agencies concerned specifically requests BoI for continuation of the names in the LOC. However, this provision for automatic deletion after one year shall not be applicable in following cases:
a. Ban-entry LOCs issued for watching arrival of wanted persons (which have a specific duration);
b. loss of passport LOCs (which ordinarily continue till the validity of the document);
c. LOCs regarding impounding of passports; d. LOCs issued at behest of Courts and Interpol.
j) In exceptional cases, LOCs can be issued without complete parameters and /or case details against CI suspects, terrorists, antinational elements, etc in larger national interest.
k) The following procedure will be adopted in case statutory bodies like the NCW, the NHRC and the National Commission for Protection of Children's Rights request for preventing any Indian/foreigner from leaving India. Such requests along with full necessary facts are first to be brought to the notice of law enforcement agencies like the police. The S.P. concerned will then make the request for issuance of notice upon an assessment of the situation, and strictly in terms of the procedure outlined for the purpose. The immigration/emigration authorities will strictly go by the communication received from the officers authorized to open LoCs as detailed in the para 8(b) above.
11. In Suresh Nanda v. Union of India2, after referring judgment of Apex Court in Menaka Gandhi v. Union of India3 observed:
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.2
2010 IV AD (Del) 53 3 (1978) 1 SCC 248 9 MSM, J wp_16731_ 2019 In Bhim Singh v. State of J&K4, 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 Bihar5 and Sebestian M. Hongray v. Union of India6. 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."
12. Turning to the facts of the present case, the cognizance order passed by the Magistrate is stayed by the High Court in Crl.R.C No.917 of 2019, thereby the Magistrate Court proceed with the trial against the petitioner. question of avoidance of trial by the petitioner as on date, does not arise, but the authority without applying their mind issued Red Corner notice/Look out notice against the petitioner. therefore, the action of respondents is illegal and contrary to guidelines issued by Ministry of Home Affairs in Vikram Sharma (cited supra) and law laid down by various courts. Hence, the Red Corner notice is liable to be recalled. 4 (1985) 4 SCC 677 5 (1983) 3 SCR 508 6 AIR 1984 SC 1026 10 MSM, J wp_16731_ 2019
13. In view of the law declared by the Apex Court in Rajesh Sharma and others v. State of Uttar Pradesh and another and Madras and Delhi High Courts in two other judgments, I find keeping the look out notice alive, even after filing of charge sheet against the petitioner, despite grant of stay of all proceedings against the petitioner in Crl.R.C 917 of 2019 dated 18.09.2019, is a clear illegality and hence, I find that it is a fit case to direct the 3rd respondent to recall the red corner notice, since keeping it alive is an arbitrary exercise of power, for no reason.
14. In the result, the writ petition is allowed, directing 3rd respondent to recall the red corner notice/look out notice issued against the petitioner herein, within a week from the date of receipt of copy of this order.
15. Consequently, miscellaneous petitions, pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated 30.10.2019 Rvk Note: Issue C.C by 04.11.2019 b/o.
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