Date of Reserve: July 15, 2010
Date of Order: August 11, 2010
W.P.(Crl.) No. 1315/2008 11.08.2010
Through: Ms. Malavika Rajkotia with Mr. Bandan Kumar, Advocates
Through: Mr. Vikas Pahwa, Standing Counsel for CBI, Mr. Pawan Sharma, APP for the State, Mr. D.K.
Sharma, SHO, P.S. Alipur.
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: Mr. Sunil Sharma, APP
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
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 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 15thJuly, 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 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.)
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 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.
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 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.”
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 Maneka Gandhi v. Union of India (1978) 1 SCC 248, observed:
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 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 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 descripttion 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.
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?
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.
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
Ministry of Women and Child Development15-February, 2011 20:22 IST
WCD Minister Krishna Tirath Opens National Seminar on “Issues Relating to NRI Marriages”
Shri D K Sikri, Secretary, Ministry of WCD said the seminar on NRI marriages is timely as it is very important to address the vulnerability of these NRI marriages. The problems of NRI marriages are more acute in States like Punjab, Kerala, Delhi, Gujarat and Andhra Pradesh. He cited two major problems,
First abduction of children from NRI girls and
Second, ladies who got married and had not gone abroad after marriage. He suggested that Government can still do something as far as issue of abduction of children is involved.
Whereas the second problem of desertion is concerned, we do not have convention as for now. This is a matter of civil law and until and unless if there is criminality involved, we cannot indulge in extradition treaty. About 2.5 million people from Punjab go abroad to get NRI marriages, hence, urgent need to check the credentials of the NRI Grooms and sensitize relations about Do’s and Don’t’s in the NRI Marriages.
In its present form, it would not apply to a foreign citizen hiding in India (several of whom have been extradited) or an Indian citizen hiding abroad against whom a RCN has been issued.
"the Supreme Court has ruled that an Indian citizen locked in a "matrimonial dispute" cannot be extradited to another country, as a "matrimonial dispute does not constitute an extraditable offence."
The apex court recognised that the husband violated US laws. "The husband came to India with the child in 2006 and in violation of US custody orders." But the SC held that merely the issuing of a "Red Corner" notice by a court abroad doesn't mean the arrest of the person is required. The foreign government needs to issue a request for extradition, which hasn't been done in this case."
New Delhi: Ashwin and Dina Patel (names changed) got married in Mumbai in 2002. Soon after, they moved to the US and there, had a daughter, Seema. In 2005, Dina, on grounds of abuse, obtained an order of judicial separation from Ashwin from a US court. The court granted interim custody of Seema to Dina, and access to the child to Ashwin.
After Ashwin returned to India with their daughter, Dina filed a case against Ashwin in the US accusing him of kidnapping Seema. Consequently, the US police issued two arrest warrants against him: a custody violation warrant, and a kidnapping felony warrant. A Red Corner notice was also issued against Ashwin by Interpol, which was recently upheld by the Bombay High Court after a petition was filed by Ashwin seeking stay on the warrants and notice.
Now, the Supreme Court has ruled that an Indian citizen locked in a "matrimonial dispute" cannot be extradited to another country, as a "matrimonial dispute does not constitute an extraditable offence."
The apex court recognised that the husband violated US laws. "The husband came to India with the child in 2006 and in violation of US custody orders." But the SC held that merely the issuing of a "Red Corner" notice by a court abroad doesn't mean the arrest of the person is required. The foreign government needs to issue a request for extradition, which hasn't been done in this case. An act may be an offence in a particular country, but ifnot a crime in India, a citizen can't be extradited, ruled the bench comprising Justices SB Sinha and Mukundakam Sharma. Upholding the precedence of local laws over foreign enactments, the apex court said, "HC was, therefore, in our opinion, clearly wrong in holding that a Red Corner Notice should not be tinkered with."
|NCW can not initiate criminal proceedings: HC|
|New Delhi, Aug 1 (PTI) :|