2010 (8) TMI 1083 - HC - Indian Laws

Quashing unjustified Red Corner Notice & Look-out Circular: Court sets guidelines for proper issuance

Sumer Singh Salkan Versus Asstt. Director & ors. And Court On its own Motion Versus State Vs. Gurnek Singh Etc.

The court quashed the Red Corner Notice (RCN) and Look-out Circular (LOC) issued against the petitioner, finding them unjustified and motivated by ... Look-out Circular (LOC) - Red Corner Notice (RCN) issued by Delhi Police and Interpol - petitioner emotionally tortured his wife while his family physically tortured his wife - RCN described the petitioner as “fugitive wanted for prosecution”. A warning is there that the petitioner may be “dangerous” and “violent” - 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 on 24th March, 2002 according to Hindu rites and ceremonies. 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) u/s 498-A/406 IPC making various allegations. Later on, an FIR was registered on 22nd April, 2003 on the basis of this complaint. The parents and sister of petitioner obtained anticipatory bail from the court. Since petitioner was in Canada, he could not be arrested by the police. ADC of Police wrote a letter dated 27th May, 2003 to Foreigners Regional Registration Office (FRRO) for opening LOC against the petitioner, a letter seems to have also been written to Interpol Wing of CBI on 11th June, 2003 for opening and issuance of a Red Corner Notice and service of summons on the petitioner in Canada. HELD THAT:- 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. LOC was issued against the petitioner soon after the registration of FIR. It is alleged by the petitioner that LOC was issued in view of the fact that complainant’s close relative was an IPS officer. This allegation of the petitioner finds support from the fact that the punishment stated by the police to Interpol in respect of the offences committed has been deliberately given as 10 years while the prescribed punishment is maximum 3 years imprisonment. The petitioner’s description of being ‘violent and dangerous’ also has been added malafidly, with ulterior motive, in view of the fact that allegations against petitioner were of only of emotional torture. Offence of kidnapping was given as the reasons for issuance of RCN, which on the representation of petitioner was removed. It is apparent that the LOC & RCN were issued for extraneous reasons by an officer who was not authorized. The petitioner has also highlighted the difference in statements made by witnesses on different occasions. Since the matter pertaining to these offences is sub judiced, 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. 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: What are the categories of cases in which the investigating agency can seek recourse of Lookout-Circular and under what circumstances? - 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. What procedure is required to be followed by the investigating agency before opening a Lookout-circular? 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. What is the remedy available to the person against whom such Look-out-Circular has been opened? 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. 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? 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. The petitions stand disposed of in above terms. Issues Involved:1. Recall of Look-out Circular (LOC) and Red Corner Notice (RCN)2. Legal basis and procedure for issuing LOC and RCN3. Remedies available to individuals against whom LOC or RCN is issued4. Role of the court in cases involving LOC or RCNIssue-wise Detailed Analysis:1. Recall of Look-out Circular (LOC) and Red Corner Notice (RCN):The petitioner sought the recall of LOC and RCN issued by the Delhi Police and Interpol, alleging arbitrary and malafide exercise of power by the respondent. The petitioner, a Canadian citizen of Indian origin, was implicated in a complaint filed under sections 498-A/406 IPC by his wife. Following the complaint, an FIR was registered, and LOC and RCN were issued. The petitioner argued that these were issued without proper legal basis and were motivated by extraneous reasons, including the complainant's connection to an IPS officer. The court found that the LOC and RCN were issued for extraneous reasons and quashed the RCN, stating that the offences were not extraditable, and no extradition request had been made despite knowing the petitioner's whereabouts for seven years.2. Legal Basis and Procedure for Issuing LOC and RCN:The judgment detailed the legal framework for issuing LOCs, referencing the Ministry of Home Affairs' Circular No. 15022/13/78-F.1 dated 5th September 1979, and subsequent Office Memorandum dated 27th December 2000. LOCs are issued to monitor or restrict the arrival/departure of individuals wanted in criminal cases. The statutory backing for LOCs includes the Passport Act, 1967 (sections 10A and 10B) and Section 41 of Cr. P.C. The procedure requires a written request from an authorized officer, and the approval of an officer not below the rank of Deputy Secretary to the Government of India or Joint Secretary in the State Government.For RCNs, the judgment cited Interpol's requirements, including that the offence must be extraditable, a warrant of arrest must be issued, and extradition must be requested. The court noted that the petitioner's RCN described him as 'fugitive wanted for prosecution' and included exaggerated charges and descriptions, such as being 'dangerous' and 'violent,' which were found to be malafide.3. Remedies Available to Individuals Against Whom LOC or RCN is Issued:The judgment outlined the remedies available to individuals against whom LOCs are issued. These include joining the investigation, surrendering before the court, or satisfying the court that the LOC was wrongly issued. The individual can also approach the officer who ordered the LOC to explain its wrongful issuance. LOCs can be withdrawn by the issuing authority or rescinded by the trial court.4. Role of the Court in Cases Involving LOC or RCN:The court emphasized that LOCs are coercive measures to ensure the appearance of individuals in court or before investigating agencies. The subordinate courts have jurisdiction to affirm or cancel LOCs, similar to their jurisdiction over Non-Bailable Warrants (NBWs). The judgment referenced previous cases, such as Vikram Sharma & Ors Vs. Union of India & Ors., where the court provided guidelines for issuing LOCs and emphasized the need for statutory commissions to not misuse their power.Conclusion:The court concluded that the LOC and RCN issued against the petitioner were not justified and were motivated by extraneous reasons. The RCN was quashed, and the court provided guidelines for issuing and challenging LOCs, emphasizing the need for proper legal basis and procedural adherence. The judgment also highlighted the extraordinary nature of powers like issuing LOCs and RCNs, which must be exercised with caution and for valid reasons.