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

2010 (8) TMI 1083 - DELHI HIGH COURT

W.P.(Crl.) No. 1315/2008 And Crl. Ref. 1/2006 - Dated:- 11-8-2010 - Shiv Narayan Dhingra, J. For the Petitioner : Malavika Rajkotia, Bandan Kumar For the Respondents : Vikas Pahwa, Standing Counsel for CBI, Pawan Sharma, APP for the State, D. K. Sharma, SHO, P. S. Alipur, Sunil Sharma, APP 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 .....

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iage. 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 Ce .....

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h 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. Comm .....

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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, issue .....

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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 arrested. Since the petitioner was at Canada, he could not be arrested and LOC was got opened against him and also R .....

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try 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 del .....

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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 au .....

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val/departure of foreigners and Indians or to restrict arrival/departure of foreigners or Indians. It is stated that 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 offic .....

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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. - Extradition will be requested, at least from certain countries. 7. It is apparent that the offence for which an RCN can b .....

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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., .....

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uspected 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 Depu .....

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velling 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: 35. …There h .....

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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 .....

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say precisely 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 an .....

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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 ves .....

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ith 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 strictl .....

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f 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 issua .....

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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 .....

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