2010 (7) TMI 1178 - HC - Indian Laws

Court rules Look-Out Circular illegal, awards compensation for unlawful detention & rights violation.

Vikram Sharma & Ors. Versus Union Of India & Ors.

The court found the Look-Out Circular (LOC) issued against Petitioner No. 1 to be illegal as it was requested by the National Commission for Women (NCW) ... Petition to direct enquiry or investigation - wrongful and malafide conduct of the officials of the CAW, NCW, FRRO and DCW - illegal detention - Facts of the case, It is alleged that Petitioner No.1 was 'made to stand in solitary confinement in a toilet, causing untold harassment, humiliation and infringement of his fundamental rights guaranteed under the Constitution of India. His passport was stamped with the remarks ‘Off loaded-deported due to criminal complaint’ albeit there was no criminal case pending against him nor any FIR was registered. He was released only after intervention by his solicitor. HELD THAT:- This Court is, of the view that action of the NCW in writing to the DCP, FRRO for the issuance of an LOC against the Petitioner No. 1 was without the authority of law. The consequent action of the FRRO in issuing such LOC which resulted in the Petitioner No.1 being detained at the IGI airport on 8th April 2008 was also, therefore, illegal. Regarding consequential relief - 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. As regards the illegal detention suffered by the Petitioner No. 1 on 8th April 2008 at the instance of both the NCW as well as the FRRO, this Court directs that the FRRO as well as the NCW will each pay the Petitioner No.1 a sum of ₹ 20,000/- by way of compensation within a period of four weeks from today. The Respondent No. 1 will, if not already done, within two weeks, make the necessary endorsement on the passport of Petitioner No. 1 expunging the earlier endorsement 'off-loaded (criminal complaint)'. In the circumstances, this Court does not consider it necessary to examine the other prayer of the Petitioners that a further detailed investigation should be undertaken to fix responsibility on those who may have been responsible for the issuance of the LOC. Accordingly, the writ petition is disposed of. Issues Involved:1. Legality of the Look-Out Circular (LOC) issued against Petitioner No. 1.2. Authority of the National Commission for Women (NCW) to request an LOC.3. Procedural adherence by the Foreigners Regional Registration Office (FRRO) in issuing the LOC.4. Transfer of the case from the Crime Against Women Cell (CAW Cell) to the Anti-Extortion Cell.5. Compensation for illegal detention and infringement of fundamental rights.6. Need for further instructions or circulars to prevent future incidents.Detailed Analysis:1. Legality of the Look-Out Circular (LOC) Issued Against Petitioner No. 1:The court found that the LOC issued against Petitioner No. 1 was illegal. The LOC was issued by the FRRO based on a request from the NCW without any authority of law. At the time of issuance, no FIR had been registered against Petitioner No. 1, and the LOC was subsequently withdrawn on 22nd April 2008 following anticipatory bail granted by the Additional Sessions Judge.2. Authority of the National Commission for Women (NCW) to Request an LOC:The NCW acted beyond its authority by requesting the issuance of an LOC. The court clarified that statutory bodies like the NCW do not have the power to request an LOC. The powers vested in the NCW under Section 10(4) of the National Commission for Women Act, 1990, do not extend to criminal law enforcement, and the NCW's action was without legal basis.3. Procedural Adherence by the Foreigners Regional Registration Office (FRRO) in Issuing the LOC:The FRRO issued the LOC based on a letter from the NCW, which was not authorized to make such a request. The court noted that the Ministry of Home Affairs (MHA) circular dated 5th September 1979 did not include statutory bodies like the NCW as 'concerned authorities' authorized to request an LOC. The FRRO's action was therefore deemed illegal.4. Transfer of the Case from the Crime Against Women Cell (CAW Cell) to the Anti-Extortion Cell:The court found the transfer of the case from the CAW Cell to the Anti-Extortion Cell unsatisfactory and directed the Commissioner of Police to re-examine the case and take a fresh decision. The reason provided for the transfer was the complainant's dissatisfaction with the investigation by the CAW Cell, but the court questioned the appropriateness of transferring the case to the Anti-Extortion Cell.5. Compensation for Illegal Detention and Infringement of Fundamental Rights:The court awarded Petitioner No. 1 compensation of Rs. 20,000 each from the NCW and the FRRO for the illegal detention and infringement of his fundamental rights. The court emphasized that the power to suspend a passport, issue an LOC, and off-load a passenger are extraordinary powers that must be exercised with caution and only by authorized authorities.6. Need for Further Instructions or Circulars to Prevent Future Incidents:The court directed the MHA to issue further clarificatory circulars or office memoranda within 12 weeks, clearly stating that statutory bodies like the NCW cannot request the issuance of LOCs. The clarification should ensure that such requests, if necessary, are made by law enforcement agencies like the police, following the prescribed procedure.Conclusion:The writ petition was disposed of with the court directing the FRRO and NCW to compensate Petitioner No. 1, expunge the endorsement on his passport, and issue further instructions to prevent similar incidents in the future. The court emphasized the need for adherence to legal procedures and the limited authority of statutory bodies in criminal law enforcement.