Delhi District Court
Mohinder Singh Sanghera vs Joginder Singh Nijjar ..... Accused No on 18 January, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 138/2021
CNR No.: DLCT01-010206-2021
Mohinder Singh Sanghera
S/o Sh. Girdawar Singh Sanghera
R/o 81, Linden Lea, Compton,
Wolverhampton, WV38BQ, United Kingdom
Also at: F-40, Kirti Nagar, New Delhi-110015
..... Petitioner
VERSUS
1. Joginder Singh Nijjar ..... Accused No. 1
S/o Sh. Harbhajan Singh
2. Nirmal Kaur Nijjar ..... Accused No. 2
W/o Sh. Joginder Singh Nijjar
Both Residents of:
2A Gorway Road, Walsall,
West Midlands, WS1 3BB,
United Kingdom
Also at: Pandori Nijjaran, Village Nijjaran,
P.O. Adampur, Distt. Jalandhar-144 103
3. Ashwani Kumar Uppal ..... Accused No. 3
S/o Sh. Ved Prakash Uppal
R/o 10, Old Jail Road,
opposite Guru Harkrishan Public School,
Amritsar, Punjab-143 001
..... Respondents
Date of Institution : 17.08.2021
Date of Arguments : 17.01.2022
Date of Judgement : 18.01.2022
JUDGEMENT
Crl. Rev No. 138/2021 Mohinder Singh Sanghera vs. Joginder Singh Nijjar & Ors. Page No. 1 of10 INTRODUCTION:
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'the Cr.P.C.') is directed against order dated 01.03.2021 (the impugned order) in CIS No. 3418/2019 titled as 'State vs. Joginder Singh Nijjar & Ors.' arising from FIR No. 954/14 under Section 406/420/120B of 'The Indian Penal Code, 1860' (In short 'IPC') whereby Ld. MM-01, Central District, Tis Hazari Courts, Delhi (In short 'the trial Court') dismissed the application filed by IO SI Balmukund Rai for seeking direction to competent authority for issuance of red corner notice against the respondent No. 1, namely, Joginder Singh Nijjar and the respondent No. 2, namely, Nirmal Kaur Nijjar. BRIEF FACTS:
2. The case of the petitioner, a British citizen, is that the respondents had induced him to invest 60% of the amount in Omaxe Ludhiana Project on the pretext that they would invest 40% of the amount in the said project and pursuant to the said inducement, he issued a Cheque No. 430302 dated 01.10.2007 in the sum of Rs. 1,22,60,000/- drawn on his account in 'Punjab National Bank, Lawrence Road, Amritsar' in the name of the respondent No. 1 as 60% of his share towards investment to be deposited with M/s. Omaxe Construction Company Ltd. in its proposed project in Ludhiana, Punjab. The said cheque was duly credited in joint account of the respondent No. 1 and 2 on 04.10.2007.
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3. The case of the petitioner is that the respondents did not deposit the said amount in the said project and misappropriated the said amount. It is further case of the petitioner that the respondents did not invest 40% of their share in the said project. The respondents returned meagre amount in 2008 to 2011 just to avoid registration of case against them.
However, the respondents have not returned the entire amount. On the basis of complaint dated 03.06.2014, the case FIR was registered under Section 406/420/120B IPC at PS Karol Bagh on 11.12.2014. The respondent No. 1 and 2 were declared 'proclaimed persons' vide order dated 04.06.2018.
4. On 05.01.2021, IO SI Balmukund Rai filed an application seeking direction to competent authority to issue red corner notice against the respondent No. 1 and 2 as under:
"It is humbly submitted that in the above cited case, accused Joginder Singh Nijjar S/o Sh. Harbhajan Singh and Smt. Nirmal Kaur Nijjar W/o Sh. Joginder Singh Nijjar have been declared as proclaimed offender by this court. Now, the complainant who is NRI and a resident of U.K. had informed that both the absconding accused Joginder Singh Nijjar and Smt. Nirmal Kaur Nijjar are living in U.K. too and had British passport also. Complainant has requested for needful.
Since, the offence committed by absconding accused Joginder Singh Nijjar and Smt. Nirmal Kaur Nijjar is of 7 years imprisonment and our country has extradition treaty with U.K. Hence, we can request CBI - Interpol for issuance of Red corner notice against accused Joginder Singh Nijjar and Smt. Nirmal Kaur Nijjar. A direction of this Court will prioritize the matter and expedite the request. Hence, CBI - Interpol, through its Deputy Director, may be directed to expedite the request in interest of justice."
Crl. Rev No. 138/2021 Mohinder Singh Sanghera vs. Joginder Singh Nijjar & Ors. Page No. 3 of10 THE IMPUGNED ORDER:
5. The trial Court, vide order dated 01.03.2021 (the impugned order), dismissed the said application, as under:
"This is an application seeking for passing directions to the competent authority for issuance of red corner notice against accused Joginder Singh Nijjar and Nirmal Kaur Nijjar.
IO has filed judgement titled as Sumer Singh Salkan vs. Asstt. Director & Ors., in W.P. (Crl.) No. 1315/2008 and in Court on its own motion Re: vs. State vs. Gurnek Singh etc. dated 11.08.2010 passed by Hon'ble High Court of Delhi.
Heard. Perused.
Considering that this Court has no power to pass directions to the competent authority for issuing red corner notice against the accused persons namely Joginder Singh Nijjar and Nirmal Kaur Nijjar, the present application stands disposed off as dismissed."
REVISION PETITION:
6. Feeling aggrieved and dissatisfied with the impugned order, the petitioner preferred the criminal revision petition.
APPEARANCE:
7. I have heard Mr. Sujoy Gaur, Advocate for the petitioner and perused the trial Court record and written arguments alongwith case law filed by the petitioner. CONTENTIONS OF THE PETITIONER:
8. Mr. Sujoy Gaur, Advocate for the petitioner contended that the impugned order suffers from material illegality and irregularities.
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9. Mr. Sujoy Gaur, Advocate for the petitioner contended that the trial Court has not considered factual matrix of the case leading to proclamation of the respondent No. 1 and 2, vide order dated 04.06.2018. He relied on judgement in Union of India vs. W.N. Chaddha, 1993 SCC (Crl.) 1171 that the Court is not required to give opportunity of hearing to the accused before issuing 'letters rogatory'. He contended that the trial Court did not exercise the jurisdiction vested in it. He contended that failure of exercise of jurisdiction by the trial Court frustrated the entire investigation. He contended that in the absence of the respondent No. 1 and 2, neither investigation nor trial of the case would reach to a logical conclusion. He relied on judgement in 'Court on its own motion Re: vs. Gurnek Singh etc.' (supra) to contend that Hon'ble High Court of Delhi enumerated jurisdiction of the sub-ordinate Courts in affirming or cancelling Look Out Circular (LOC). He relied on guidelines on 'Mutual Legal Assistance in Criminal Matters' dated 04.12.2019 issued by Ministry of Home Affairs. He contended that the trial Court has not exercised power vested in it under Section 166A of the Cr.P.C. which empowers a criminal Court to issue 'letter of request' to a Court or authority in that Country or place to examine any person acquainted with facts and circumstances of the case. He relied on judgement in CBI vs. Patrick Charles Bowring, Crl. Revision No. 03/2014 dated 17.01.2014 decided by Ld. ASJ (Central), Delhi and Lee Kun Hee vs. State of U.P., Appl. No. 14958/2013 decided on 30.05.2013.
Crl. Rev No. 138/2021 Mohinder Singh Sanghera vs. Joginder Singh Nijjar & Ors. Page No. 5 of10 ANALYSIS AND CONCLUSION:
10. The petitioner is aggrieved by impugned order whereby the trial Court dismissed the application filed by IO SI Balmukund Rai seeking direction to Interpol-Wing of CBI for issuance of red corner notice against respondent No. 1 and 2.
11. In Bhavesh Jayanti Lakhani vs. State of Maharashtra, (2009) 9 SCC 551, Hon'ble Supreme Court of India held as under:
"59. A red corner notice is issued to seek the provisional arrest of a wanted person. However, it by itself does not have the effect of warrant of arrest. It is issued for persons, against whom a national or international court has issued a warrant of arrest. It is solely a request of the issuing entity to provisionally or finally arrest the wanted person for extradition..... Procedure for issuing notice
60. Notice in terms of Article 10.5 of RPI (Rules Governing the Processing and Communication of Police Information) of Interpol can be issued by the General Secretariat either at the request of an authorized entity or on its own initiative as is the case in green and orange notices. Usually, NCBs are the authors of a red or yellow notice. The General Secretariat before issuing or distributing notices, especially to other offices than NCBs, has to evaluate, whether the issue is necessary and advisable having regard to the aims and tasks of the organization, the respect of human rights and the required security measures against possible menaces to the police cooperation, to Interpol itself or to the Member States. The General Secretariat has been authorized by the General Assembly to forbid the issuing of a notice, if it does not meet the requirements of a request for provisional arrest. However, we must place on record that a reference to the presumption of innocence of the wanted person is not a part of the published rules and regulations. Only the corresponding pages of the internet appearance of the organizations contain explicitly highlighted warnings of this kind.
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61. It bears repetition to state that the General Secretariat of Interpol publishes the notices either on its own initiative, or based on the requests from NCB or international organizations or entities with whom Interpol has special agreements. It may be of some interest also to notice that in the year 2008 alone Interpol issued 3126 red corner notices and around 385 yellow corner notices.
64. In fact, Interpol's 'red notices' often function as de facto international arrest warrants and countries issue warrants immediately upon receipt of such a notice. However, they do so with the understanding that a request for extradition with supporting evidence will follow the red notice, without delay. The suspect must then go through the standard extradition process. The bottom line is that 'warrants to arrest suspects must have legal authority in the jurisdiction where the suspect is found' and Interpol red notices do not have such authority. They are primarily a means of facilitating communication between police agencies and the success of the Interpol system still depends entirely upon voluntary cooperation. They, however, do not entirely lack external effects.
65. A number of States recognise the red notices as an official request for the arrest of a person. However, such a request does not require the action of national police authorities and does not provide a legal basis thereto. The transnationalisation takes place through the membership in the organization, through the supervision proviso of the General Secretariat and the recognition of the transnational effect of the information."
12. Therefore, it is evident that Interpol Wing of CBI is the competent authority for issuance of red corner notice. Its primary duty is to liaise and co-ordinate with law enforcement agencies. All State police forces and other law enforcement agencies in India have a link through Interpol, New Delhi to their counter parts in other member countries through the Interpol Global communication system prepared to assist in dealing with criminal investigations.
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13. In CBI vs. Patrick Charles Bowring (supra), CBI was seeking an open dated non-bailable warrants against Patrick Charles Bowring, a British National, one of the accused in that case. The said open dated non-bailable warrants was required to be annexed to the prescribed application for being forwarded to Interpol Wing (IPSG Lyons) for the purpose of red corner notice. That was not a case relating to power of the trial Court to direct issuance of red corner notice.
14. In Sumer Singh Salkan vs. Asstt. Director & Ors. (supra), the petitioner sought recalling of Look Out Circular (LOC) and Red Corner Notice (RCN) issued by Delhi Police and Interpol. In the said case, Hon'ble High Court of Delhi quashed red corner notice as having been issued for extraneous reason. In the said case, Hon'ble High Court of Delhi stated that the subordinates Courts jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs. The said case has not laid down the proposition that the trial Court has jurisdiction direct Interpol Wing of CBI to issue red corner notice against an accused.
15. In the judgement relied by the petitioner in Sunil Tyagi vs. State, Crl. MC No. 5328 of 2013 dated 28.06.2021, Hon'ble High Court of Delhi held that a red corner notice may be issued from Interpol if the accused is suspected to be abroad or fled to other country. Hon'ble High Court of Delhi referred para 11.51 of CBI Manual that red corner notice may be got issued from Interpol (IPSG Lyons).
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16. Therefore, the trial Court rightly observed that it has no power to direct competent authority to issue red corner notice against the respondent No. 1 and 2.
17. The Investigating Officer must approach Interpol Wing of CBI for issuance of red corner notice against the respondent No. 1 and 2 and in that case, the trial Court can be approached for issuance of open dated non-bailable warrants for the purpose of red corner notice.
18. Accordingly, the criminal revision petition filed by the petitioner is dismissed. Trial Court record be sent back alongwith a copy of the present judgement. Revision file be consigned to record room.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2022.01.18
17:50:29 +0530
Announced in the open Court SANJAY SHARMA-II
on this 18th January, 2022 Addl. Sessions Judge-03 (Central)
Tis Hazari Courts, Delhi
Crl. Rev No. 138/2021 Mohinder Singh Sanghera vs. Joginder Singh Nijjar & Ors. Page No. 9 of10 Mohinder Singh Sanghera vs. Joginder Singh Nijjar & Ors. CNR No.: DLCT010102062021 Crl. Revision No. 138/2021 18.01.2022 Present : Mr. Sujoy Gaur, Advocate for the petitioner.
Vide separate judgement, the criminal revision petition filed by the petitioner is dismissed. The revision file be consigned to record room.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2022.01.18
17:50:40 +0530
Sanjay SharmaII
ASJ03, Central District,
Tis Hazari Courts, Delhi
NK 18.01.2022
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