Hindu Marriage Act, 1955: s.13(1)(i-a) - Petition for divorce by husband alleging cruelty by wife - Dismissal by trial court as also by High Court - Plea that divorce be granted on the ground of irretrievable breakdown of marriage -
REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1330 OF 2009 (Arising out of SLP(C) No.13166 of 2007)
Vishnu Dutt Sharma ..Appellant
versus
Manju Sharma ..Respondent
ORDER
Leave granted.
This Appeal has been filed against the judgment and order dated 07th
May, 2007 passed by the High Court of Delhi in FAO No.302 of 1996 whereby the
High Court has dismissed the appeal filed by the husband-appellant.
Facts giving rise to this appeal are:
The marriage took place between the appellant and the respondent on
26.02.1993 and a female child was born on 6.12.1993. In the petition filed by the
appellant, it was alleged that soon after the marriage the respondent was behaving
in a cruel manner derogatory to the appellant and the family members; that the
respondent avoided staying in the matrimonial home and never remained there for
more than 25 days together; and that after leaving the matrimonial
-2-home on 19.5.1993 while she was pregnant with the child, the respondent never
returned to live with the appellant. It was also alleged that the father of the
respondent is a retired Sub-Inspector of the Delhi Police and brother is a Constable
and both used to extend threats to the appellant and his family members that they
would be implicated in false cases.
Respondent in her written statement stated that on 14.09.1994, the
appellant and his family members gave her a severe beating which led to her being
medically examined by the doctors at Ram Manohar Lohia Hospital. A copy of the
extract of the MLC register on that date was enclosed to the written statement. It
was also stated that the appellant and his mother had taken the jewellery of the
respondent and given it to the wife of the appellant's brother and on asking,
respondent was again assaulted and sought to be burnt alive by the family members
of the appellant.
The trial Court after examining the evidence came to the conclusion that
no case of cruelty had been made out as alleged by the appellant. The Trial Court
held that considering that the respondent had been turned out of the matrimonial
house and had been given beatings for which she
-3-
was medically examined,it was the respondent who was treated cruelly by the
appellant.
Being aggrieved, the appellant preferred an appeal in the High Court. The High Court, by the impugned order, while dismissing the appeal filed
by the appellant-husband, observed in paras 13 & 17 as under:
"13. ...The respondent has categorically stated in her examination-in-chief that the appellant and her in laws beat her mercilessly on 14.09.1994 as a result of which she was medically examined at the Ram Manohar Lohia Hospital, New Delhi on 15.09.1994. She has also withstood the cross- examination on this aspect. On a reading of the entire evidence, it is not possible to conclude that the appellant has been able to establish that the respondent treated him with cruelty.
17. In the instant case, the respondent wife has both before the trial Court and this Court been able to demonstrate that far from treating the appellant with cruelty, she in fact suffered cruelty at the hands of the appellant. To grant divorce to the appellant despite this only on the ground of irretrievable breakdown would not, in the view of this Court, be doing justice to the respondent."
We are not inclined to interfere with the finding of fact of both the courts
below that it was the appellant who treated the respondent with cruelty, rather than
the other way around.
-4-
Learned counsel appearing for the appellant has streneously argued that
the marriage between the parties be dissolved on the ground of irretrievable
breakdown.
In this connection it may be noted that in Section 13 of the Hindu
Marriage Act, 1955 (for short 'the Act') there are several grounds for granting
divorce e.g. cruelty, adultery, desertion etc. but no such ground of irretrievable
breakdown of the marriage has been mentioned for granting divorce. Section 13 ofthe Act reads as under:
"13.Divorce--(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii)has ceased to be a Hindu by conversion to another religion; or (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. -5-
xx xx xx
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(iv)has been suffering from a virulent and incurable form of leprosy; or (v)has been suffering from venereal disease in a communicable form; or (vi)has renounced the world by entering any religious order; or (vii)has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive."
On a bare reading of Section 13 of the Act, reproduced above, it is crystal
clear that no such ground of irretrievable breakdown of the marriage is provided by
the legislature for granting a decree of divorce. This Court cannot add such aground to Section 13 of the Act as that would be amending the Act, which is a
function of the legislature.
Learned counsel for the appellant has stated that this Court in some cases
has dissolved a marriage on the ground of irretrievable breakdown. In our opinion,
those cases have not taken into consideration the legal position which we have
mentioned above, and hence they are not precedents.A mere direction of the Court
without considering the legal position is not a precedent. If we grant divorce on the
ground of irretrievable breakdown, then we shall by
-6-
judicial verdict be adding a clause to Section 13 of the Act to the effect that
irretrievable breakdown of the marriage is also a ground for divorce. In our opinion,
this can only be done by the legislature and not by the Court. It is for the
Parliament to enact or amend the law and not for the Courts. Hence, we do not find
force in the submission of the learned counsel for the appellant.
Had both parties been willing we could, of course, have granted a divorce
by mutual consent as contemplated by Section 13B of the Act, but in this case the
respondent is not willing to agree to a divorce.
For the aforesaid reasons, this appeal is dismissed. No order as to costs.
.........................J. [MARKANDEY KATJU]
.........................J. [V.S.SIRPURKAR]NEW DELHI;FEBRUARY 27, 2009.
Divorce on Cruelty Gounds:
MAT APP No. 98/2010 Page 1 of 11
IN THE HIGH COURT OF DELHI AT NEW DELHI
MAT APP No. 98/2010
Judgment delivered on: 19.11.2010
Smt. Nitu Aggarwal ..... Appellant
Through: Mr.Rajiv Shukla, Adv.
Versus
Sh.Gireesh Gupta ..... Respondent
Through: Mr.Gyan Prakash, Adv.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J. Oral:
*
1. By this appeal filed under Section 28 of the
Hindu Marriage Act, 1955 the appellant seeks to challenge
MAT APP No. 98/2010 Page 2 of 11
the judgment and decree dated 27.4.2010, passed by the
learned Additional District Judge, Delhi, whereby a decree
of judicial separation was passed.
2. Brief facts of the case relevant for deciding the
present appeal are that the parties got married on 5.11.03
at Noida according to Hindu rites and ceremonies and a
female child was born out of wedlock on 14.9.04. The
matrimonial relations between the parties were stained
right from the very beginning of their married life and
distressed by the behaviour of the appellant, the respondent
filed a petition under section 10 of the Hindu Marriage Act,
1955 for a decree of judicial separation on the ground of
cruelty which vide judgment dated 27.4.10 was granted.
Feeling aggrieved with the same, the appellant has filed the
present appeal.
3. Mr. Rajiv Shukla, counsel for the appellant
submits that the learned trial court has wrongly assumed
that the appellant had consumed some poisonous substance
with a view to commit suicide. The contention of the
MAT APP No. 98/2010 Page 3 of 11
counsel for the appellant is that the respondent used to
compel and force the appellant to consume certain
medicines under the pretext that the same were good for
her health and for the child in the womb. Counsel further
submits that the respondent also failed to prove on record
that an attempt of suicide by the appellant was made with
a view to coerce the respondent to accede to any of her
demands and in the absence of any such assertion on the
part of the respondent, no logic or rationale behind the
alleged attempt of suicide by the appellant could be
established by the respondent. Explaining the contradiction
on the part of the appellant in the FIR lodged by her under
Section 498A/406/34 IPC, counsel submits that even if the
appellant in the said FIR took a stand that the respondent
had given her something to drink, the same will not make
any difference vis-Ã -vis her stand in the matrimonial
proceedings where she had stated that the respondent used
to administer some medicines. Counsel thus submits that
there was a minor variation in the stand of the appellant
which would not amount to any kind of self contradiction on
MAT APP No. 98/2010 Page 4 of 11
her part. Counsel thus states that there is clear infirmity and
perversity in the findings of the learned trial court on this
aspect and the same should be set aside.
4. Assailing the impugned judgment on another
ground, counsel submits that the learned trial court has
wrongly observed that the implication of the relatives of the
respondent is in itself an act of cruelty against the
respondent. The contention of the counsel for the appellant
is that the mere fact that the said relatives were not charge
sheeted by the police would not show that the allegations
leveled by the appellant against the relatives of the
respondent were false. The contention of the counsel is
that at the stage of framing of charges, it would be for the
concerned Criminal Court to see whether based on the
allegations leveled by the appellant in her criminal
complaint such relatives are required to be proceeded
against or not.
5. Counsel for the respondent on the other hand
refutes the submissions made by the counsel for the
MAT APP No. 98/2010 Page 5 of 11
appellant and submits that the present appeal deserves to
be dismissed at the admission stage itself as the appellant
has failed to point out any material illegality or perversity in
the order passed by the learned trial court.
6. I have heard learned counsel for the parties.
7. The petition under Section 10 of the Hindu
Marriage Act was preferred by the respondent husband so
as to seek a decree of judicial separation from the appellant
on the ground of cruelty. The marriage between the parties
was solemnized according to Hindu rites and ceremonies on
5.11.2003 and both the parties are well educated
academically. One of the allegations leveled by the
respondent against the appellant is that the appellant had
consumed some poisonous drink on 18.8.2004 and her
condition became very critical in the morning of 18.8.2004
and she was immediately taken to Kailash Hospital, Noida
and it is only on account of the timely action taken by the
respondent and his parents that life of the appellant and
the unborn child could be saved. It is an admitted case of
MAT APP No. 98/2010 Page 6 of 11
the parties that subsequent to the filing of the said petition
by the respondent husband the appellant wife got
registered one criminal complaint under Section
498A/406/34 IPC vide FIR No. 498/2005 not only against
the respondent but his parents and some other relatives as
well. Some of the relatives implicated by the appellant in the
said complaint case were the residents of far off places like
Saharanpur and Baroda. It is also an admitted case of the
parties that the relatives of the respondent were not chargesheeted
by the police as no incriminating material was
found against them during the course of investigation. The
respondent has taken this false implication of his relatives
on the part of the appellant as a ground of cruelty. Learned
trial court has also granted decree of judicial separation in
favour of the respondent and against the appellant taking
the said two grounds clearly establishing the cruel conduct
of the appellant towards the respondent. Before the learned
trial court as well as before this court the appellant has
failed to disclose as to what kind of medicines were being
administered by the respondent to her during the stage of
MAT APP No. 98/2010 Page 7 of 11
pregnancy on the pretext of the same being good for her
health and that of the unborn child. It is incomprehensible
to accept the argument that the appellant who is a well
qualified lady having a degree of Chartered Accountancy
and Company Secretary would take the medicines without
even knowing what kind of medicines she was taking. The
appellant has also clearly taken a contradictory stand in
her criminal complaint, wherein she stated that she was
given something to drink by the respondent and his parents
on the pretext that it is good for her pregnancy. The
appellant has also not denied the fact that she was admitted
to Kailash Hospital in the morning of 18.8.2004 where she
was treated after having consumed some poisonous
substance. It is also not in dispute that the appellant did not
lodge any police complaint against the respondent or his
parents complaining about administration of some
poisonous medicines by her husband or his parents. The
learned trial court has duly taken into consideration all
these circumstances into account and thus has arrived at a
finding that such an attempt by the appellant to commit
MAT APP No. 98/2010 Page 8 of 11
suicide is an act of cruelty on her part upon her husband.
8. The concept of cruelty is of wide amplitude and has not
been defined in the act. The Apex Court through various
judicial pronouncements has explained the concept and
scope of cruelty. It would be useful here to refer to the
judgment of the Apex Court in the case of A. Jayachandra
vs. Aneel Kaur AIR 2005 SC 534 where it was held as
under:
“12. To constitute cruelty, the conduct complained of should be
"grave and weighty" so as to come to the conclusion that the
petitioner spouse cannot be reasonably expected to live with the
other spouse. It must be something more serious than "ordinary
wear and tear of married life". The conduct, taking into
consideration the circumstances and background has to be
examined to reach the conclusion whether the conduct
complained of amounts to cruelty in the matrimonial law.
Conduct has to be considered, as noted above, in the background
of several factors such as social status of parties, their education,
physical and mental conditions, customs and traditions. It is
difficult to lay down a precise definition or to give exhaustive
description of the circumstances, which would constitute cruelty.
It must be of the type as to satisfy the conscience of the Court
that the relationship between the parties had deteriorated to
such an extent due to the conduct of the other spouse that it
would be impossible for them to live together without mental
agony, torture or distress, to entitle the complaining spouse to
secure divorce. Physical violence is not absolutely essential to
constitute cruelty and a consistent course of conduct inflicting
immeasurable mental agony and torture may well constitute
cruelty within the meaning of Section 10 of the Act. Mental
cruelty may consist of verbal abuses and insults by using filthy
and abusive language leading to constant disturbance of mental
peace of the other party.
MAT APP No. 98/2010 Page 9 of 11
13. The Court dealing with the petition for divorce on the ground
of cruelty has to bear in mind that the problems before it are
those of human beings and the psychological changes in a
spouse's conduct have to be borne in mind before disposing of
the petition for divorce. However, insignificant or trifling, such
conduct may cause pain in the mind of another. But before the
conduct can be called cruelty, it must touch a certain pitch of
severity. It is for the Court to weigh the gravity. It has to be seen
whether the conduct was such that no reasonable person would
tolerate it. It has to be considered whether the complainant
should be called upon to endure as a part of normal human life.
Every matrimonial conduct, which may cause annoyance to the
other, may not amount to cruelty. Mere trivial irritations, quarrels
between spouses, which happen in day-to-day married life, may
also not amount to cruelty. Cruelty in matrimonial life may be of
unfounded variety, which can be subtle or brutal. It may be
words, gestures or by mere silence, violent or non-violent.”
Cruelty therefore is to be garnered taking the cumulative
effect of all the factors into play. The parties are well
educated and such an attempt to end her life by the
appellant would certainly cause mental agony to the
respondent. It would aggravate the case when the appellant
tried to commit suicide in the state of pregnancy. A highly
educated lady claiming that she was administered poisonous
substance which she was unaware of does not help her case.
No doubt in the petition the respondent did not give any
specific reason or cause behind such suicidal attempt but
it goes without saying that such an act even in the absence
MAT APP No. 98/2010 Page 10 of 11
of any reason certainly would constitute an act of cruelty on
the respondent husband.
9. Even on the second argument of the counsel for
the appellant, this court does not find any merit in it. The
complaint under Section 498A/406/34 IPC was lodged by the
appellant during the pendency of the said petition filed by
the respondent for judicial separation. In her complaint the
appellant roped in various relatives of the respondent which
include his uncle and aunt residing at Saharanpur and
brother and sister in law residing at Baroda. The learned
trial court is right in taking a view that false implication of
relatives who were residing at far off places from the
matrimonial home of the appellant and against whom there
are no specific allegations of cruelty in itself is an act of
cruelty by the appellant towards her husband. However, as
these relatives were not charge-sheeted by the police the
same would clearly show that the police did not find any
incriminating material against these relatives during the
investigation and this by itself is sufficient enough to show
MAT APP No. 98/2010 Page 11 of 11
that the appellant had roped in and implicated all these
relatives with vengeance to cause unnecessary harassment
to them and such act certainly would cause cruelty to the
husband with whom they are related. Implicating the
relatives with a motive to harass the relatives, residing in
different parts of the country, is nothing but a ruthless act of
harassment. Therefore, the respondent husband has
successfully proved cruelty on the part of the appellant on
both the counts.
10. In the light of the above, this court does not find
any infirmity or illegality in the findings arrived at by the
learned trial court. There is no merit in the present appeal
and the same is hereby dismissed at the stage of admission
itself.
November 19, 2010 KAILASH GAMBHIR, J
mg
Judgement on LOC in 498 a IPC:
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
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