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Sunday, May 31, 2015

No Interpol Notices in section 498-a-ipc dowry cases in India.

Interpol stops issuing notices
April 22nd, 2009

Hyderabad

April 21: Interpol, which issues Red Corner notices to arrest criminals all over the world, has stopped issuing notices pertaining to Section 498(A) (dowry harassment) cases registered in India. There are about 3,000 requests for red corner notices from Indian government pending with Interpol.
The inspector-general of CID, Mr S. Umapathi, said there are as many as 120 cases from Andhra Pradesh pending with Interpol for the past eight months.
Sources in the CBI said Punjab tops the list with nearly 300 cases.
According to sources, there is no law pertaining to dowry harassment in US and other developed countries and hence the Interpol is in dilemma whether they can issue Red Corner notice based on the Indian law.
“The mater has been discussed with US embassy officials recently. However, there was no improvement in the status,” Mr Umapathi said. “There was no delay in other criminal cases,” he added.
The external affairs ministry had sent several representations to Interpol explaining the seriousness of the cases booked under Section 498 (A). However it failed to get any positive response from them.

Court or Police Can not Impound the passport of accused.


“even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a passport is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh’s Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim Generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing.”
—————————————————————————————————————————————————
Supreme Court of India
Suresh Nanda vs C.B.I on 24 January, 2008
Bench: P.P. Naolekar, Markandey Katju
           CASE NO.:
Appeal (crl.)  179 of 2008

PETITIONER:
SURESH NANDA

RESPONDENT:
C.B.I.

DATE OF JUDGMENT: 24/01/2008

BENCH:
P.P. NAOLEKAR & MARKANDEY KATJU

JUDGMENT:
JUDGMENT O R D E R [ ARISING OUT OF S.L.P.(CRL.) 3408 OF 2007 ]
1. Leave granted.
2. The appellant claims to be a non-resident Indian settled in United Kingdom for the last 23 years. The passport of the appellant as well as other documents were seized by the respondent from 4, Prithviraj Road, New Delhi in a search conducted on 10.10.2006 when the appellant was on a visit to India. The said search and seizure was pursuant to an F.I.R. dated 9.10.2006 registered on the basis of a sting operation carried out by a news portal in the year 2001. The passport seized during the search was retained by the C.B.I. officials. An application was moved by the appellant before the Special Judge, C.B.I., Patiala House Courts, New Delhi praying for release of his passport so that he can travel abroad to London and Dubai for a period of 15 days. The learned Special Judge, by order dated 15.1.2007, directed the release of the passport to the appellant by imposing upon him certain conditions. Aggrieved against the order passed by the learned Special Judge, C.B.I., the respondent preferred a Criminal Revision before the High Court. The High Court, by order dated 5.2.2007, reversed the order of the learned Special Judge and refused to release the passport to the appellant. Aggrieved against the order of the High Court, present appeal, by special leave, has been preferred by the appellant.
3. Learned senior counsel appearing for the appellant submitted that the power and jurisdiction to impound the passport of any individual has to be exercised under the Passports Act, 1967 (hereinafter referred to as The Act). He specifically referred to sub-section (3)(e) of Section 10 of the Act which reads as under: (3) The passport authority may impound or cause to be impounded or revoke a passport or travel document –
(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India: Reference was also made to Section 10A of the Act which has been introduced by Act 17/2002 w.e.f. 17.10.2001.
4. Learned senior counsel for the appellant also placed reliance on the decision of 5- Judge Bench of this Court in Satwant Singh Sawhney Vs. D. Ramarathnam, Asstt. Passport Officer (1967) 3 SCR 525 wherein in para 31, it was held as under:
31: For the reasons mentioned above, we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that under Article 21 of the Constitution no person can be deprived of his right to travel except according to procedure established by law. It is not disputed that no law was made by the State regulating or depriving persons of such a right.
5. A similar view is reiterated in the decision rendered by 7-Judge Bench of this Court in Maneka Gandhi Vs. Union of India and another (1978) 1 SCC 248 wherein at page 280, it was held as under:
….Now, it has been held by this Court in Satwant Singh’s case (supra) that ‘personal liberty’ within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh’s case (supra) was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means ‘enacted law’ or ‘State law’ (Vide A.K. Gopalan’s case). Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure…..
6. On the other hand, learned Additional Solicitor General appearing for the respondent submitted that the passport was seized and impounded by exercising the powers under Section 102 read with Sections 165 and 104 of Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.). He further contended that the power to retain and impound the passport has been rightly exercised by the respondent as there is an order dated 3.11.2006 passed by the learned Special Judge for C.B.I. exercising the power under Section 104 of Cr.P.C.
7. Sub-section (3)(e) of Section 10 of the Act provides for impounding of a passport if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India. Thus, the Passport Authority has the power to impound the passport under the Act. Section 102 of Cr.P.C. gives powers to the police officer to seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence. Sub-section (5) of Section 165 of Cr.P.C. provides that the copies of record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance to the offence whereas Section 104 of Cr.P.C. authorizes the court to impound any document or thing produced before it under the Code. Section 165 of Cr.P.C. does not speak about the passport which has been searched and seized as in the present case. It does not speak about the documents found in search, but copies of the records prepared under sub-section (1) and sub-section (3). Impound means to keep in custody of the law. There must be some distinct action which will show that documents or things have been impounded. According to the Oxford Dictionary impound means to take legal or formal possession. In the present case, the passport of the appellant is in possession of CBI right from the date it has been seized by the CBI. When we read Section 104 of Cr.P.C. and Section 10 of the Act together, under Cr.P.C., the Court is empowered to impound any document or thing produced before it whereas the Act speaks specifically of impounding of the passport.
8. Thus, the Act is a special Act relating to a matter of passport, whereas Section 104 of the Cr.P.C. authorizes the Court to impound document or thing produced before it. Where there is a special Act dealing with specific subject, resort should be had to that Act instead of general Act providing for the matter connected with the specific Act. As the Passports Act is a special act, the rule that general provision should yield to the specific provision is to be applied. See : Damji Valaji Shah & another Vs. L.I.C. of India & others [AIR 1966 SC 135]; Gobind Sugar Mills Ltd. Vs. State of Bihar & others [1999(7) SCC 76]; and Belsund Sugar Co. Ltd. Vs. State of Bihar and others [AIR 1999 SC 3125].
9. The Act being a specific Act whereas Section 104 of Cr.P.C. is a general provision for impounding any document or thing, it shall prevail over that Section in the Cr.P.C. as regards the passport. Thus, by necessary implication, the power of Court to impound any document or thing produced before it would exclude passport.
10. In the present case, no steps have been taken under Section 10 of the Act which provides for variation, impounding and revocation of the passports and travel documents. Section 10A of the Act which provides for an order to suspend with immediate effect any passport or travel document; such other appropriate order which may have the effect of rendering any passport or travel document invalid, for a period not exceeding four weeks, if the Central Government or any designated officer on its satisfaction holds that it is necessary in public interest to do without prejudice to the generality of the provisions contained in Section 10 by approaching the Central Government or any designated officer. Therefore, it appears that the passport of the appellant cannot be impounded except by the Passport Authority in accordance with law. The retention of the passport by the respondent (CBI) has not been done in conformity with the provisions of law as there is no order of the passport authorities under Section 10(3)(e) or by the Central Government or any designated officer under Section 10A of the Act to impound the passport by the respondent exercising the powers vested under the Act.
11. Learned Additional Solicitor General has submitted that the police has power to seize a passport in view of Section 102(1) of the Cr.P.C. which states: Power of police officer to seize certain property:(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.
In our opinion, while the police may have the power to seize a passport under Section 102(1) Cr.P.C, it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 1967.
12. It may be mentioned that there is a difference between seizing of a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document the said property or document is retained for some period of time, then such retention amounts to impounding of the property/or document. In the Law Lexicon by P. Ramanatha Aiyar (2nd Edition), the word impound has been defined to mean to take possession of a document or thing for being held in custody in accordance with law. Thus, the word impounding really means retention of possession of a good or a document which has been seized.
13. Hence, while the police may have power to seize a passport under Section 102 Cr.P.C. if it is permissible within the authority given under Section 102 of Cr.P.C., it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Cr.P.C.), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that any order which has civil consequences must be passed after giving opportunity of hearing to a party vide State of Orissa Vs. Binapani Dei [Air 1967 SC 1269].
14. In the present case, neither the passport authority passed any order of impounding nor was any opportunity of hearing given to the appellant by the passport authority for impounding the document. It was only the CBI authority which has retained possession of the passport (which in substance amounts to impounding it) from October, 2006. In our opinion, this was clearly illegal. Under Section 10A of the Act retention by the Central Government can only be for four weeks. Thereafter it can only be retained by an order of the Passport authority under Section 10(3).
15. In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a passport is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh’s Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim Generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing.
16. For the aforesaid reasons, we set aside the impugned order of the High Court and direct the respondent to hand over the passport to the appellant within a week from today. However, it shall be open to the respondent to approach the Passport Authorities under Section 10 or the authorities under Section 10A of the Act for impounding the passport of the appellant in accordance with law.
17. We, however, make it clear that we are not expressing any opinion on the merits of the case and are not deciding whether the passport can be impounded as a condition for grant of bail.
18. The appeal stands disposed of accordingly.

Friday, February 1, 2013

extradition of person in contempt petition



Extradition and treaty law India.

"The Indo-Canadian Extradition Treaty, was notified on 7th May, 1987. Article 3 of the Treaty defines Extradition offences. As per clause 3(1) of the Treaty, an offence to be an extradition offence must be an offence punishable by the laws of both the contracting states by a term of imprisonment for a period of more than one year. Under Section 12 of the Contempt of Court Act, 1971 the maximum punishment is a sentence of simple imprisonment for a period of six months."


IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) NO.1966/1999
Date of Decision : 04.07.2011
SMT. ANUBHA ...... Plaintiff Through: Mr.Rajat Aneja, Adv.
Versus
SH.VIKAS AGRAWAL ...... Defendant Through: Mr. Sachin Datta, Adv.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
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 the judgment should be reported in the Digest ? YES V.K. SHALI, J.
IA No. 4197/2004 (contempt)
1. The question involved in the present contempt application is whether the proceedings for execution of contempt order passed against the defendant should be monitored by this Court or should the proceedings of the present contempt case be adjourned sine die till the time the defendant is extradited to face the trial in respect of other connected extraditable matters which are purportedly pending against him in the District Court of Gautam Budh Nagar(UP). Before deciding the said question, it would be pertinent here to give the brief background of the case.
CS(OS) no.1966/1999 Page 1 of 10
2. The plaintiff got married to the defendant Mr.Vikas Agrawal, a Non-Resident Indian (NRI) on 11.5.99 according to Hindu rites and ceremonies. The defendant was a Non-Resident Indian at the time of marriage residing at 29, Woodlawn Avenue, Ansonia, Connecticut-06401 (USA) and was a HBI-4 Visa Holder. He was employed as a software Engineer with M/s CAPITAL ONE at 11011, West Broad Street, Glen Allen, Virginia-23060 (USA).
3. The present plaintiff went to USA, however, on account of temperamental incompatibility, the marriage could not last and she came back to India and instituted the present suit seeking declaration that she is entitled to live separately and it was also prayed that a permanent decree of maintenance in her favour and against the defendant for a sum of US$1500 per month or `65,250/- per month calculated at the (then) prevailing rate of `43.50 per US $, be passed with periodical increase therein. A similar ad interim relief was also prayed during the interregnum period till the disposal of the suit.
4. Notices were issued to the defendant who was duly represented by his counsel.On 5th November, 1999, this Court after considering the submissions of the learned counsel for the plaintiff had passed a restraint order against the defendant from pursuing the divorcne petition purportedly instituted by him in the Connecticut Court, USA for a period of 30 days. The restraint order was passed in the presence of the CS(OS) no.1966/1999 Page 2 of 10 learned counsel for the defendant observing that the said restraint order will not cause any serious prejudice to the defendant till he files his definite statement before this Court.
5. The suit has been ultimately decreed by this Court on 27.9.2002 granting the relief as prayed for in the main suit. However, on 09.3.2000, this Court had issued a suo moto contempt notice against the defendant on account of the fact that it was brought to its notice that the defendant despite a restraint order having been passed against him, not to pursue his divorce petition before the Connecticut Court, USA had chosen to pursue the same and obtained divorce from the said Court. Show cause notice of contempt was not replied and this Court ultimately vide order dated 20.5.2004 held the defendant guilty of wilful and contumacious violation of the order dated 05.11.1999 of this Court and it had accordingly sentenced him to SI for three months and to pay a fine of `2,000/- under Section 12 of the Contempt of Courts Act and in default of payment of fine, the defendant shall undergo SI for one month.
6. The defendant being a Non Resident Indian and despite the decree having been passed on 27.9.2002 as well as the order dated 20.5.2004 holding him guilty for Contempt of Court has chosen not to appear before this Court resulting in adoption of coercive processes against him for procuring his attendance before this Court so that he could be made to CS(OS) no.1966/1999 Page 3 of 10 undergo sentence of imprisonment imposed on him. It is at this stage that this Court passed orders issuing notice to the Standing Counsel of UOI with regard to the question of extradition of the defendant from the jurisdiction of Connecticut Court, USA where he was purportedly residing and working at that point of time.
7. The UOI filed its affidavit through one Mr.D.K.Ghosh, Public Relation Officer giving therein legal position with regard to the extradition of the defendant. He had stated that since the offence of which the defendant was held guilty was not falling within the ambit of 'extradition offence' as contemplated under Section 2(c) of the Extradition Act in relation to the treaty States therefore, the defendant could not be extradited.
8. Despite this legal position having been enunciated in the affidavit in very clear terms, the Court took note of the fact that the defendant was facing prosecution in respect of two other offences, one instituted by the plaintiff for the offence of defamation punishable under Section 500/501 of the IPC and the other under Section 498A IPC which is pending in Courts of District Gautam Budh Nagar (UP). One of the offences was stated in the affidavit and in the subsequent status report to be an extraditable offence and it was observed that the details of correspondence which has been entered into between the Govt. of India and their counter parts has not yielded any fruitful result on account of the fact that the offence for which CS(OS) no.1966/1999 Page 4 of 10 the defendant has been convicted is not an extraditable offence. Despite this legal position, this Court went out of the way and obtained status report with regard to the efforts being made by the Govt. of India from time to time with regard to procuring the attendance of the defendant in India. As many as, 5-6 status reports have been filed over a period of almost 7 years from the date of holding the defendant guilty for an offence of contempt.
9. The question which now arises for consideration is whether under such a contingency, when there is a definite affidavit that the present offence of which the defendant has been held guilty and sentenced to imprisonment of 3 months apart from fine of `2000/- does not happen to be an extraditable offence, the proceedings must be permitted to continue indefinitely till the time his attendance is procured in connection with some other case or should the case be adjourned sine die to be revived at the option of the plaintiff or other official of the Government of India in case the defendant appears in India.
10. Though the answer to the above question from the side of the plaintiff's counsel has been in affirmative on the ground that once this Court has continued the existing proceedings, it may be continued, till the time the respondent is brought to the justice and sent to imprisonment in terms of the conviction order dated 20.5.2004. The learned counsel of UOI CS(OS) no.1966/1999 Page 5 of 10 has left it to the discretion of the Court to consider the passing of such orders as may be warranted in law.
11. The Court is faced with the dilemma as to whether the present proceedings which obviously have been going on for a period of 7 years, after holding the defendant guilty for an offence and contempt has resulted in wastage of public time at the expense of more important cases which need attention of the Court and more particularly of the cases where the accused persons are languishing in jail, should be continued or not.
12. The answer to this question, I feel should be in negative and the present proceedings ought not to be continued any further and they can be adjourned sine die with liberty to revive the same at the option of the plaintiff as and when the defendant is brought to India under extradition treaty or he appears on his own to face the consequences as may be warranted in law.
13. This order has been passed on account of the fact that admittedly the offence of contempt of Court in respect of which the defendant has been held guilty is not an extraditable offence under Section 2(c) of the Extradition Act. Section 2(c) lays down that an 'extradition offence' means in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State. CS(OS) no.1966/1999 Page 6 of 10
14. The defendant is residing in Canada and for the purpose of making a requisition for surrendering or return of any accused or convicted person to India the provisions of the Extradition Act, 1962 (hereinafter referred to as the 'Act') have to be complied with. A requisition for surrender or return of a person can be made under Section19 of the said Act only if the person is accused or convicted of an 'extradition offence'. Under Section 2(c) of the said Act, an 'extradition offence' means - (i) in relation to a foreign state, being a treaty state, an offence provided for in the extradition treaty with that State.
15. The Indo-Canadian Extradition Treaty, was notified on 7th May, 1987. Article 3 of the Treaty defines Extradition offences. As per clause 3(1) of the Treaty, an offence to be an extradition offence must be an offence punishable by the laws of both the contracting states by a term of imprisonment for a period of more than one year. Under Section 12 of the Contempt of Court Act, 1971 the maximum punishment is a sentence of simple imprisonment for a period of six months.
16. It is submitted that the defendant vide order dated 20.5.2004 was sentenced to imprisonment for a period of three months (and an additional period of one month in case of default in payment of fine), hence the said offence cannot be termed as an extradition offence. Even in cases involving commission of an 'extradition offence' (punishable by a term of imprisonment CS(OS) no.1966/1999 Page 7 of 10 for a period of more than a year), there is no duty on the Contracting State to extradite as Article 1.4 of the Treaty clearly provides that there is no duty to extradite a person sentenced in respect of an extradition offence where the actual term of imprisonment is 6 months or less. Therefore, the defendant is not held guilty of an extraditable offence and even if it is assumed that it was an extraditable offence even then the contracting State is under no obligation to extradite for the offence if the sentence is of less than six months. On both these counts, the defendant cannot be extradited.
17. It is also pertinent here to mention that the passport of the defendant has already been impounded under Section 10(3) (e) and 10(3) (h) of the Passport Act, 1967. The defendant was also holding another passport which was issued by the Consulate General of India, Toronto and the same has also been impounded.
18. That the High Commission of India, Ottawa, Ontario vide letter 4.8.2004 sought extradition of the defendant in respect of having committed criminal offences u/S 500/501, IPC and Section 72 of the IT Act, 2000. The same was done in pursuance of a request for extradition received from the Additional Chief Judicial Magistrate, Gautam Budh Nagar, UP dated 13.4.2004. In pursuance of the same extensive correspondence took place between the Ministry and the Canadian Authorities. On 09.11.2006, the General Counsel CS(OS) no.1966/1999 Page 8 of 10 and Director of the International Assistance Group, wrote to the Joint Secretary (Consular) that the evidence which had been provided would not meet the new test for committal for extradition laid down by the Supreme Court of Canada and hence they could not proceed with the request for extradition. Pursuant to further exchange of correspondence a reply was received from Ms.Barbara Kothe, Senior Counsel, International Assistance Group on 15.1.2008 setting out detailed reasons as to why the defendant could not be extradited in respect of the offences under Sections 500 and 501, IPC and Section 72 of the IT Act, 2000. Vide communication dated 27.2.2009 Ms. Barbara Kothe clarified as to how the International Assistance Group was authorized to determine whether to issue an authority to proceed.
19. A second FIR, under Section 498A/406 IPC has been registered at the instance of the plaintiff against the defendant. In respect thereof, the Ministry of External Affairs has requested the Canadian High Commission in New Delhi to state whether 'subjecting a woman to cruelty, under Section 498A of the Indian Penal Code and dowry related offences' satisfy the requirement of dual criminality and whether the alleged conduct of an accused person amounts to extraditable offence in the Canadian laws. The Ministry of External Affairs is making all efforts to secure extradition of the defendant in accordance with law.
CS(OS) no.1966/1999 Page 9 of 10
20. For the above mentioned reasons, I am of the considered opinion that no useful purpose will be served by keeping the present proceedings pending before this Court as the offence of which the defendant has been found guilty could not be said to be an 'extraditable offence' and accordingly the matter is adjourned sine die with liberty to the plaintiff to revive the same as and when the defendant is extradited in respect of any other extraditable offence where he is facing trial and steps have been taken by the Govt. of India to procure his attendance under the extradition treaty. No order as to cost.
21. File be consigned to the Record Room.
V.K. SHALI, J.

Tuesday, May 3, 2011

Extradition proceeding in 498a Ipc

A fundamental Right of a citizen whenever infringed, the High Courts having regard to their extraordinary power under Article 226 of the Constitution of India as also keeping in view that access to justice is a human right would not turn him away only because a Red Corner Notice was issued”, said the Bench.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.676 OF 2008
Shri Bhavesh Jayanti Lakhani, aged ) 33 years, residing at A/103, Star ) Galaxy Apartment, L.T. Road, Opp. ) St. Anne' School, Borivli (West),
s )
Mumbai 400 092. ) .... Petitioner Versus
1. The State of Maharashtra (At the )
instance of Borivli Police Station, )
Mumbai). )
2. The Commissioner of Police, )
Mumbai. )
3. The Crime Intelligence Unit, )
General Branch, Crime Branch, )
CID, Crawford Market, Mumbai )
400 001. )
4. Central Bureau of Investigation, )
Interpol Wing, Government of )
India, New Delhi. )
5. Union of India, having address at )
Law & Judiciary Department, )
Aaykar Bhavan, Marine Lines, )
Mumbai 400 020. )
AJN
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6. Ms. Hetal Girish Thakkar @ Mrs. )
Hetal Bhavesh Lakhani @ Mrs. )
Hetal Ashwin Matta, presently )
residing at 7109, Avignon, Dr. )
Round Rock, Texas 78681 )
5332. ) ... Respondents Mr. A.P. Mundargi, senior counsel i/b Mr. Prakash Naik for the petitioner.
Mr. S.R. Borulkar, Public Prosecutor with Ms. U.V. Kejariwal, A.P.P. for the State.
Mr. Yug Choudhary, advocate appointed for respondent 6. CORAM : SMT. RANJANA DESAI &
DR. D.Y. CHANDRACHUD, JJ.
DATE ON WHICH THE JUDGMENT IS
RESERVED : 1ST AUGUST, 2008.
DATE ON WHICH THE JUDGMENT IS
PRONOUNCED : ___ AUGUST, 2008.
JUDGMENT: (Per Smt. Ranjana Desai, J.)
1. In this petition filed under Article 226 of the Constitution of India, the warrant issued by the Magistrate Court, Clayton County, Georgia in Case No.2006/CW/06369 and Case No.2006/CW/06370 or any other Court in the U.S.A. in respect of AJN
3
the complaint filed by respondent 6 is sought to be stayed. The petitioner is also seeking a direction restraining the respondents or any other Central Government machinery from arresting the petitioner or taking any action pursuant to the warrants.
2. We have heard, at length, Mr. Mundargi, learned senior counsel, who is appearing for the petitioner, Mr. Choudhary, who is appointed by us to appear for respondent 6 and Mr. Borulkar, learned Public Prosecutor for the State.
3. In this petition, on 7/4/2008, Division Bench of this court (Bilal Nazki & V.M. Kanade, JJ) issued notice to the other side. Interim relief in terms of prayer clause (c) was granted. Resultantly, the warrants issued against the petitioner got stayed. The petition appeared on our board on 22/7/2008. Since respondent 6, the wife who is in U.S.A. was not served, she was not represented. Because it is the case of the petitioner as submitted in the court and reiterated in the written submissions that a Red Corner Notice is issued against him and because by interim order, the warrants AJN
4
and the Red Corner Notice are stayed, we appointed Mr. Choudhary to assist us on behalf of respondent 6. We directed that the petition be placed on our board on 29/7/2008. Interim protection was ordered to be continued till 29/7/2008. We directed Mr. Choudhary to get address of respondent 6 from the petitioner' s
counsel and take steps to contact her. On 29/7/2008, Mr. Choudhary stated that he had contacted the petitioner on phone. He stated that the correct address of respondent 6 was not given by the petitioner. We, therefore, granted to the petitioner leave to amend the title. Statement of the petitioner' s counsel was recorded
that compilation will be sent to respondent 6 by courier. Compilation seems to have not been dispatched till 1/8/2008. It was brought to our notice that minor daughter Eesha' s custody was
granted by the American Court as well as the Family Court at Mumbai to respondent 6 mother and the Family Court had also issued arrest warrant against the petitioner. It was also brought to our notice that the Family Court's order is challenged by the petitioner in this court; that the petitioner' s appeal is admitted and
that the warrant issued by the Family Court is stayed. It was AJN
5
pointed out to us that this court had while admitting the matter noted in the order that the petitioner had brought Eesha to the court but the respondentwife was not available. We are informed that this court did not interview the child. In the interest of justice, therefore, we directed that the child be brought to us on 30/7/2006 at 3.00 p.m. The petition was adjourned to 30/7/2006. Interim protection was extended till 30/7/2006. On 30/7/2006, we interviewed Eesha in our chamber. We asked learned counsel whether the civil appeal and the present petition should be heard together. Mr. Naik, learned counsel for the petitioner took time to obtain instructions. We, therefore, adjourned the petition to 31/7/2008 and extended the protection granted to the petitioner till 31/7/2008. On 31/7/2008, Mr. Naik submitted that he cannot make a statement that both the matters should be heard together. Since a question of law is involved in this petition, we posted this petition for hearing as to admission today by extending interim protection till today. Before, we turn to the question of law, it is necessary to give the gist of the facts as stated by the petitioner because the petitioner'
s counsel has alleged fraud and contended that fraud has AJN
6
vitiated all actions initiated against the petitioner.
4. The case of the petitioner as stated in the written submission is that he got married to respondent 6 on 6/4/2002 in Mumbai. After marriage, they proceeded to California and stayed there from 2002 to 2005. Their child Eesha is aged about 5 years. According to the petitioner, respondent 6 withdrew all funds from their joint account and filed a petition for divorce in the court of Norfolk, Boston, which was not admitted on the ground of jurisdiction and enraged by this respondent 6 filed a false complaint against the petitioner and obtained restraint order against her and Eesha which was subsequently vacated. On 5/10/2005, respondent 6 obtained the order of judicial separation. The court granted interim custody of Eesha to respondent 6. The court, however, granted to the petitioner access to Eesha. According to the petitioner in breach of the restrain order, respondent 6 moved to New Hampshire and called the petitioner to join her there. Thereafter, the petitioner and respondent 6 stayed together at New Hampshire. AJN
7
5. According to the petitioner, in March, 2006, respondent 6 informed the petitioner that both of them will have to return to India permanently because the Asylum Office had called her and that Federal Government in the U.S.A. had found out about her lies in the Asylum Application of May, 2003. According to the petitioner, both of them decided to return to India and with the consent of respondent 6, the petitioner booked three tickets in March, 2006. Respondent 6 then told the petitioner that she had lost her passport. She informed the petitioner that he should go to India with Eesha and she will follow them. On 7/3/2006 and 14/4/2006, respondent 6 herself gave in writing that she had authorized the petitioner to travel to India with Eesha. With the consent of respondent 6, the petitioner brought Eesha to India on 15/4/2006. According to the petitioner on 2/5/2006, respondent 6 misled the American Court and obtained exparte divorce decree.
6. The petitioner'
s case is that respondent 6 had no intention to come to India with the petitioner. She got married to one Ashwin Matta. She filed a complaint with Macklenburg County Police AJN
8
Department in North Carolina by giving a different story that the petitioner had kidnapped Eesha and had fled along with her to India. The police in Atlanta, therefore, issued two arrest warrants against the petitioner i.e. Custody Violation Warrant and Kidnapping Felony Warrant and a Red Corner Notice is issued by Interpol against the petitioner.
7. The petitioner's further case is that respondent 6 filed a petition for custody of Eesha in Family Court, Mumbai, on 11/5/2007. Family Court directed the petitioner to produce Eesha before it. Pursuant to the notice of the Family Court, the father of the petitioner remained present in the court on 15/5/2007 and stated that the petitioner has gone out of Mumbai along with Eesha. Matter was adjourned to 18/5/2007. On that day, again the petitioner'
s father remained present and informed the court that the petitioner could not be contacted. Family Court issued arrest warrant against the petitioner and granted custody of Eesha to respondent 6 mother and allowed her to take Eesha to the U.S.A. This order was challenged by the petitioner in appeal in this court AJN
9
and this court (J.N. Patel & A.A. Sayed, JJ.) admitted the appeal and stayed the order of the Family Court granting custody of Eesha to respondent 6 and issuing warrant against the petitioner.
8. Respondent 6 is not before us. To the petition, the petitioner has annexed her application filed in the Family Court in Mumbai. From the application, her case appears to be that the petitioner used to illtreat her. She complained to the police about the ill treatment. The police helped her to obtain Abuse Prevention Order from the Trial Court of Massachusetts (U.S.A). Ultimately, she decided to take divorce. On 5/5/2005, the Trial Court in the U.S.A. issued permanent Abuse Prevention Order against the petitioner. According to respondent 6, on 9/5/2005, she filed a petition for divorce before the Trial Court of Massachusetts. On 5/10/2005, she was awarded interim custody of Eesha and the next date of hearing was fixed on 2/5/2006. On 15/4/2006, Eesha was found missing. She reported to the police in Mecklemberg County Police Department in North Carolina. The police found out that the petitioner had taken Eesha to India. The police in Atlanta issued AJN
10
two arrest warrants against the petitioner i.e. Custody Violation Warrant and Kidnapping Felony Warrant. The FBI cannot execute the warrants unless the authorities in India execute the custody order. Respondent 6 has further stated that on 2/5/2006, trial took place in Massachusetts. The petitioner's
attorney was present. He
produced a travel consent letter on which signature of respondent 6 was forged. Seeing this, the court awarded legal and physical custody of Eesha to respondent 6.
9. As stated by us hereinabove, we have in detail narrated the petitioner'
s case because Mr. Mundargi, learned senior counsel for the petitioner submitted that respondent 6 has practiced fraud on the court. He submitted that fraud vitiates everything. Fraud has, therefore, vitiated the arrest warrants and the Red Corner Notice. This is his main contention. According to Mr. Mundargi, Eesha was brought to India because respondent 6 gave consent. Case of respondent 6 as stated in the application is that her signatures were forged by the petitioner. We have also noted that it is the petitioner'
s case that he was not present in the U.S.A. Court when AJN
11
decree of divorce was passed and he also did not remain present on two dates in the Family Court, Mumbai, which led the Family Court to issue arrest warrant.
10. At the outset, we want to make it clear that on the facts of the case, we do not want to express any opinion. We are mindful of the fact that this court has admitted the petitioner's appeal challenging the grant of custody of Eesha to respondent 6. Facts involved in that appeal would obviously be dealt with by this court when it is finally heard.
11. The question here is whether a Red Corner Notice can be stayed by this court. For this purpose, it is necessary to have a look at the provisions of Extradition Act, 1962 (for short, "the Extradition Act").
12. Many International Conventions have been held to discuss how to empower State parties to deal with crimes committed by fugitive criminals. Statement of Objects and Reasons of Act 66 of AJN
12
93 by which the Extradition Act was amended states that India is a party to many of these conventions which lay down specific obligations on the State parties to extradite or prosecute fugitive offenders. The Extradition Act provides for extraterritorial jurisdiction over foreigners for crimes committed by them outside India. One of its objectives is to cover extradition requests on the basis of International Conventions within the scope of the Extradition Act.
13. Under section 2(c)(i), extradition offence means in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State.
Extradition treaty is defined under section 2(d) as under : "(d) "extradition treaty" means a treaty [, agreement or arrangement] made by India with foreign State relating to the extradition of fugitive criminals, and includes any treaty [, agreement or arrangement] relating to the extradition of fugitive criminals made before the 15th day of August, 1947, which extends to, and is binding on, India;"
AJN
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Section 2(f) defines a `
fugitive criminal'
as under :
"[(f)"fugitive criminal" means a person who is accused or convicted of an extradition offence within the jurisdiction of a foreign State and includes a person who, while in India, conspires, attempts to commit or incites or participates as an accomplice in the commission of an extradition offence in a foreign State.]"
Under section 2(j), a '
treaty State'
means a foreign State with
which an extradition treaty is in operation.
14. There is no dispute about the fact that India has extradition treaty with U.S.A. U.S.A. is therefore, a treaty State. Chapter II of the Extradition Act applies to extradition of fugitive criminals to foreign States. This chapter contains provisions which dealt with extradition of fugitive criminals to States with which India does not have extradition treaty. Though here we are concerned with a case where there is extradition treaty, it is necessary to have a look AJN
14
at certain provisions contained in this chapter to compare them with the provisions which relate to States which have extradition treaty to appreciate Mr. Mundargi'
s argument that while considering
the petitioner'
s case facts will have to be gone into.
15. Section 7 relates to the procedure before a Magistrate before whom a fugitive criminal who is wanted in a State with which India has no treaty is brought. It states that when the fugitive criminal is brought before the Magistrate, he shall inquire into the case in the same manner and shall have same jurisdiction and powers, as nearly as may be, as if the case was one triable by a court of Sessions or High Court. This section permits the Magistrate to take evidence on behalf of the requisitionist State as well as on behalf of the fugitive criminal. It empowers the Magistrate to discharge the fugitive criminal if no prima facie case is made out. But, if a prima facie case is made out, the Magistrate has to commit the fugitive criminal to prison to await order of the Central Government.
AJN
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16. Chapter III provides for return of fugitive criminal to foreign States with extradition arrangements. Section 14 states that a fugitive criminal may be apprehended in India under an endorsed warrant or a provisional warrant. Section 15 states that where a warrant for the apprehension of a fugitive criminal has been issued in any foreign State and such fugitive criminal is or is supposed to be, in India, the Central Government may, if satisfied that the warrant was issued by a person having lawful authority to issue the same, endorse such warrant in the manner prescribed, and the warrant so endorsed shall be sufficient authority to apprehend the person named in the warrant and to bring him before any Magistrate in India. Section 17 says that if the Magistrate is satisfied on inquiry that the endorsed warrant for apprehension of the fugitive criminal is duly authenticated and that the offence of which the person is accused or has been convicted is an extradition offence, he shall commit the fugitive criminal to prison to await his return and shall forthwith send to the Central Government a certificate of the committal. Subsection (2) of section 17 states that if the Magistrate is of opinion that the endorsed warrant is not AJN
16
duly authenticated and that no extradition offence is said to have been committed by the fugitive criminal, the Magistrate may pending the receipt of the orders of the Central Government detain such person in custody or release him on bail. Under subsection (3), the Magistrate has to report the result of his inquiry to the Central Government.
17. Therefore, while dealing with a fugitive criminal wanted in a State with which India has no treaty, the Magistrate can inquire into the case in the same manner as if the case was triable by Court of Sessions or High Court, however, while dealing with a fugitive criminal wanted in a treaty State, such inquiry and such a trial is not open. There is no provision enabling the Magistrate to take evidence. He cannot discharge the fugitive criminal. He has to only see whether the warrant is duly authenticated and whether the fugitive criminal is concerned with an extradition offence. If these two conditions are satisfied, the Magistrate shall commit him to prison. The use of the word "shall" is significant. The Magistrate has then no option but to commit him to prison. He has to then AJN
17
submit the result of his inquiry to the Central Government together with written statement which the fugitive criminal may desire to submit for the consideration of the Central Government. The reason for this is obvious. Section 29 gives power to the Central Government to discharge any fugitive criminal. It states that if it appears to the Central Government that by reason of the trivial nature of the case or by reason of the application for surrender or return of a fugitive criminal not being made in good faith or in the interests of justice or for political reasons or otherwise, it is unjust or inexpedient to surrender or return the fugitive criminal, it may, by order, at any time stay any proceedings under this Act and direct any warrant issued or endorsed under the Extradition Act to be cancelled and the person for whose arrest the warrant has been issued or endorsed to be discharged.
18. In case of extradition of fugitive criminal from treaty States, the Magistrate cannot make a roving inquiry into facts. He has to only see whether the warrant is endorsed properly and whether the fugitive criminal is involved in an extradition offence. He cannot AJN
18
assume the role of a trial judge. The moment he is satisfied that the above two conditions are satisfied, he shall commit the fugitive criminal to custody. The reason for such stringent provision is obvious. The Extradition Act recognizes the sanctity of an extradition treaty. Extradition treaty implies mutual obligations. It demands mutual respect for warrants or notices issued by States party to it. Since an extradition treaty falls within the domain of the Central Government as per the provisions of the Extradition Act, the ultimate authority to take vital decisions is left with it. Treaty obligations have to be respected. They are international obligations. Disrespect or disregard shown to warrants issued by a treaty State may result in similar response from that State to warrants issued by India. Such approach will result in frustrating the extradition treaty.
19. The Code of Criminal Procedure also contains provisions for reciprocal arrangements. Section 105(A)(a) defines a ` Contracting
State'to mean any country or place outside India in respect of AJN
19
which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise. Section 105K states that every letter of request, summons or warrant, received by the Central Government from, and every letter of request, summons or warrant, to be transmitted to a contracting State shall be transmitted to a contracting State or, as the case may be sent to the concerned Court in India in such form and in such manner as the Central Government may, by notification, specify in this behalf. Overall control of the Central Government is seen even here. Section 105 inter alia provides procedure for execution of process issued by any court in a contracting State.
20. Provisions of Chapter III of the Extradition Act which we have quoted hereinabove make it clear that a machinery is created for scrutiny of the warrants issued by the treaty State to find out its authenticity and to find out whether the fugitive criminal is covered by the Extradition Act because of commission of extradition offence by him. A provision is made to give him relief if the above facts are not proved. Wide powers vest in the Central Government to take AJN
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necessary steps to give redress to a fugitive criminal if his case warrants it. The provision contained in section 17 directing the Magistrate to commit the fugitive criminal from treaty State to jail on being satisfied about the existence of the conditions stated therein is of mandatory nature. In such circumstances, in our considered opinion, this court cannot tinker with the Red Corner Notice issued against the petitioner. If he is not concerned with any extradition offence, he must inform the concerned Magistrate about it. The Magistrate is duty bound to send his report and the statement if any filed by the petitioner to the Central Government. The Central Government if it feel necessary can give him relief under section 29 of the Extradition Act.
21. We find no substance in Mr. Mundargi' submission that s
because under section 17 of the Extradition Act while dealing with the fugitive criminal who is produced before him, the Magistrate cannot go into facts, in our writ jurisdiction we should go into the facts. He submitted that we need to go into facts because respondent 6 wife has practiced fraud and fraud vitiates everything, AJN
21
even the Red Corner Notice. While accepting that in a given case, we can, in our writ jurisdiction go into facts, we are not inclined to do so in this case. In her application made to the Family Court, a copy of which the petitioner has annexed to the petition, respondent 6 has made several serious allegations against the petitioner including the allegation that he has forged her signatures. According to her, while fraudulently taking Eesha to India, the petitioner took away her passport. Therefore, she could not follow him to India. She got a new passport and visited India. She could not locate the petitioner hence she went back. She again came to India after learning that the petitioner was staying in Borivali and then filed a petition in the Family Court. She has expressed a fear that the petitioner may abscond and take Eesha out of the jurisdiction of this court. Therefore, here we are concerned with disputed facts of such nature which cannot be investigated in writ jurisdiction. Besides, the Extradition Act provides for a procedure which cannot be bypassed. The Extradition Act also contains provisions which can provide relief to the petitioner. In matters of treaty obligations, we would not like to trench on the powers of the AJN
22
Central Government.
22. Red Corner Notice is International Criminal Police Commission Notice (Interpol Notice). It plays a vital role in tracking, tracing and extraditing internationally wanted fugitives. It is issued to seek the provisional arrest and extradition of the fugitive on the basis of valid arrest warrant. It is not possible for us to stay warrants issued against the petitioner by the American Courts. Red Corner Notice cannot be tinkered with. The procedure prescribed under the law must be followed. Apart from the fact that we are of the considered opinion that warrants issued by American Courts and the Red Corner Notice cannot be stayed, we would not like to set a precedent which could be used to hamper investigation of crimes which have global dimensions and for the investigation of which, Red Corner Notice is a critical tool.
AJN
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In the circumstances, we reject the petition. Needless to say that the interim stay is vacated.
[SMT. RANJANA DESAI, J.]
[DR. D.Y. CHANDRACHUD, J.]
At this stage, Mr. Naik, learned counsel appearing for the petitioner states that the interim order may be continued for six weeks. The prayer is rejected.
[SMT. RANJANA DESAI, J.]
[DR. D.Y. CHANDRACHUD, J.]

LOC(Look-Out-Circular) against the accused in 498a ipc

LOC (Look Out Circular)Against the accused in 498a Ipc



"
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."



WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 1 of 16
* 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.
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 2 of 16
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
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 3 of 16
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 15th July, 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
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 4 of 16
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
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 5 of 16
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
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 6 of 16
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
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 7 of 16
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.
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 8 of 16
- 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
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 9 of 16
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
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 10 of 16
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
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 11 of 16
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
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 12 of 16
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
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 13 of 16
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.
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 14 of 16
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:
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 15 of 16
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.
WP (Crl.) No. 1315 of 2008 & Crl. R. No. 1 of 2006 Page 16 of 16
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

Extradition & Treaty Law in India under 498a IPC

Judgments on Extradition & Treaty Laws under section 498a IPC

"In the present case it is not in dispute that at present a complaint vide FIR No.89/2003 under Section 406/498A IPC is pending against the petitioner and the chargesheet has been filed. The said complaint is pending before the Metropolitan Magistrate, Delhi wherein the petitioner has also been declared as `Proclaimed Offender' by the order dated 21st August, 2004 impugned in this writ petition. It is also not in dispute that a warrant of arrest emanating from the above complaint exists at present against the petitioner."




IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : ARTICLES 226 AND 227 OF THE

CONSTITUTION OF INDIA

Date of Decision : 20th October, 2005

W.P.(C) 16976/2005 & CMS 10945-46/2005(Exemption/stay)

RAJIV TAYAL ... Petitioner

Through S/Sh. H.S. Phoolka, Senior

Advocate with Israel Ali &

S.S. Ray, Advocates

VERSUS

UOI & ORS. Respondents

Through Mr. Kailash Gambhir with

Mr. Gaurav Sharma for respondent No.1.

Ms. Sujata Kashyap with

Mr. Neeraj Kumar for respondent Nos.2-3.

Mr. Arvind Kr. Gupta for respondent No.4.

CORAM:

HON'BLE MR. JUSTICE MUKUL MUDGAL

HON'BLE MR. JUSTICE H.R. MALHOTRA

MUKUL MUDGAL J.(ORAL)

1. Rule DB. With the consent of the learned counsel for the parties, the writ petition is taken up for final hearing.

2. This writ petition under Articles 226 and 227 of the Constitution of India challenges the Orders dated 23rd August, 2005 and 30th August, 2005 passed by the Vice Consul, Consulate General of India, New York, USA. This order was passed on the directions of the respondent No.1, namely, the Ministry of External Affairs, New Delhi for impounding the passport of the petitioner. The other major prayer made in the writ petition challenges the Order dated 21st August, 2004 passed by the learned Metropolitan Magistrate in FIR No.89/2003 under Section 406/498A IPC P.S. Subzi Mandi, Delhi declaring the petitioner as `Proclaimed Offender'. The petitioner inter alia challenges the vires of the Section 10 (3)(e) & (h) of Passport Act, 1967(hereinafter referred to as the `Act') as well as the validity of Article 14, 19 and 21 of the Constitution of India.

3. The Section 10 (3)(e) & (h) of the Act the validity of which is under challenge in this petition reads as follows:-

“10.Variation, impounding and revocation of passports and travel documents._

x x x x x x

x x x x x x

(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India;

x x x x x x

(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.”

In the present case it is not in dispute that at present a complaint vide FIR No.89/2003 under Section 406/498A IPC is pending against the petitioner and the chargesheet has been filed. The said complaint is pending before the Metropolitan Magistrate, Delhi wherein the petitioner has also been declared as `Proclaimed Offender' by the order dated 21st August, 2004 impugned in this writ petition. It is also not in dispute that a warrant of arrest emanating from the above complaint exists at present against the petitioner.

4. Mr. Phoolka, the learned senior counsel, appearing for the petitioner submits that this action of summoning the petitioner violates the Articles 14, 19 and 21 of the Constitution because the petitioner is a person who is abroad for gainful employment. The effect of the petitioner's answering the summons would be to disrupt his employment in USA and may militate against the immigrant status sought by him. He submitted that insistence on his presence in the Court of the Metropolitan Magistrate violates his rights under Article 14, 19 and 21. We are unable to appreciate this plea. A person merely by going abroad cannot claim a status superior to that of a citizen of India. Since any citizen accused in India of a similar offence would also have to obey the summons and appear before the Magistrate, mere stationing of the petitioner in the USA cannot give him any rights superior to those of an Indian citizen. Thus there is no violation of Article 14. Even if the restriction which emanates from the effect of the summons by the Magistrate may affect the petitioner's right to movement under Article 19(1)(d) such restriction certainly falls within Article 19(5) and is a reasonable restriction imposed by a law made by the State. Similarly even if the petitioner's employment guaranteed by Article 19 (1)(9) is affected by the impugned order under the Passport Act, such an order has been passed under the Passport Act which imposes a reasonable restriction on the petitioner's right under Article 19(6) of the Constitution. Similarly the restrictions complained of in the writ petition emanate from a procedure established by law i.e., Passport Act & the IPC and Cr.P.C., and Article 21 thus cannot be said to be violated. There is thus no merit in the petitioner's plea as to the invalidity of Section 10(e) & (h) of the Act as being violative of Articles 14, 19 and 21 of the Constitution and the plea of constitutional validity thus stands rejected.

5. In so far as the writ petition on merits is concerned, it seeks to quash the order of 21st August, 2004 passed by the learned Metropolitan Magistrate which reads as follows:-

Present : I.O., S.I. Prahlad Singh. Heard. Perused. It is stated that there is no extradition treaty with U.S. Till the time the accused is declared P.O., or charge sheet is filed. It is also stated that the address of the accused at America is known to the victim or investigating agency. Whereas the accused has the knowledge of NBWs issued against him and he is in touch with his parents. Correspondence supporting the contention is also on record. Proceedings u/s 82/83 are complete on his last known address. In these circumstances I am satisfied that accused is absconding whereas publication in America is not practical unless the address of the accused is known. Hence I declare accused as P.O., in the matter.

6. It is not in dispute that the petitioner is aware of this order. The petitioner's parents' Crl.M.(M) No.1592/2003 was disposed of on 21st April, 2003 by the learned Single Judge of this Court when they moved for their anticipatory bail in respect of the aforesaid FIR No.89/2003. The aforesaid order of 21st April, 2003 reads as follows:-

Learned counsel for the complainant submits that the complainant's husband who is in USA, may also be given protection but he should be asked to come to India, at least, once for sorting out the disputes with the complainant. He submits that in this case there is a fair chance that the couple may re-unite and as such efforts are required to be made for exploring the possibility of their re-union.

Learned counsel for the petitioners

prays for some time so that the petitioners may contact their son in U.S.A. and ask him to come to India for some time so that the negotiations may start and the controversies are amicably resolved.

Till the next date, in the event of their arrest, the petitioners shall be released on bail upon their executing personal bonds in the sum of Rs.30,000/- each with one surety each in the like amount to the satisfaction of the Arresting Officer. The petitioners shall, however, join investigation as and when required.

Application on behalf of the husband of the complainant may be moved in the meanwhile, if so desired.”

It is not in dispute that the petitioner is aware of this order though his strenuous plea is that only his parents were aware of the order passed in Crl.M.(M) No.1592/2003 on 21st April, 2003.

7. The above order also shows that the petitioner's parents were in touch with the petitioner and it is not possible to believe that the petitioner was not aware of the pending proceedings in the Court of Metropolitan Magistrate. This Court is informed that in spite of the above order the petitioner did not visit India to sort out the dispute. Even this Court made efforts to settle the dispute by suggesting a mutual settlement but the settlement fell through as the petitioner was not willing to accept the settlement suggested by this Court.

8. We have an interesting situation where the petitioner seeks to quash the order dated 21st August, 2004 and yet refuses to join the proceedings pending before the Metropolitan Magistrate largely on the ground that he is now residing in USA and subject him to the criminal process in India would be an unfair burden as is evident from the challenge raised earlier to the constitutional validity of the Passport Act and rejected by this Court. The petitioner also submits that he has not yet been served with the summons. The petitioner's counsel has further submitted that the investigation in his case ought to be conducted by sending him a questionnaire and he should not be asked to join the investigation in India. The acceptance of such a plea would give a premium to the petitioner/accused who happens to travel abroad and it will thus be open to such an accused/petitioner to misuse the process of law to make a mockery of the Indian judicial system by asking for such a special procedure totally opposed to the principles of the criminal jurisprudence. The petitioner was repeatedly asked by this Court to join the proceedings before the Metropolitan Magistrate when the Court was prepared to provide him suitable protection against his arrest or any other penal consequences in respect of his passport, but the petitioner declined to do so and even today inter alia insists that the summons must be served on him before he is required to answer it. We cannot countenance the conduct of a party who while seeking to quash the order of the learned M.M., nevertheless declines to join proceedings on the hypertechnical plea of the summons not having been served on him notwithstanding the protection offered by this Court.

9. Accordingly we are of the view that in any event the petitioner's conduct disentitles him for any discretionary relief under Article 226 of the Constitution even if a case for intervention was made out. Consequently the writ petition is dismissed. The order of status quo dated 5th September, 2005 stands vacated.

Sd/- MUKUL MUDGAL, J

Sd/-

OCTOBER 20, 2005 H.R. MALHOTRA, J