THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
WRIT PETITION No.12687 of 2022
ORDER:
The petitioners implore for writ of mandamus directing the respondents 3 to 5 to withdraw Look Out Circular (for short "LOC") issued against the petitioners in Crime No.231/2021 on the file of the Disha Police Station, Nellore, SPSR Nellore District and consequently direct the respondent No.7 to permit the petitioner to travel abroad.
2. Petitioners' case briefly is thus:
(a) The 1st petitioner is the wife of 2nd petitioner and both of them are Doctors. The 1st petitioner applied to Canadore College, Canada for admission in health care administration and she was granted admission for academic year 2020-21 and while she was planning to leave the country to attend the college, at that time her brother's wife i.e., her sister-in-law gave a complaint which was registered as Crime No.231/2021 by the police of the Disha Police Station, Nellore against the 1st petitioner's brother, parents and the petitioners for the offences under Section 498-A, 506 and Sections 3 & 4 of Dowry Prohibition Act. The police directed the petitioners not to leave the Country and available for the investigation. In that view, the 1st petitioner postponed her admission to next academic year i.e., 2022-23 and the college would commence from 02.05.2022 and the 1st petitioner has to report one month prior to opening of the college. 2
(b) While so, the police completed investigation and filed charge-sheet against the accused Nos.1 to 3 and as there was no involvement of the petitioners i.e., accused Nos.4 and 5, they mentioned the said fact in the charge sheet. Be that it may, since in the passport the name of the 1st petitioner's father is mentioned, she made an application to the Regional Passport Officer, Visakhapatnam to mention the name of her husband in the passport and paid necessary fee. The said application was forwarded for verification to the Station House Officer, III Town Police Station, Visakhapatnam. There was a delay in issuing verification report in view of the pending investigation in Crime No.231/2021. Even though subsequently charge sheet was filed against other accused, the police did not issue verification certificate and so the 1st petitioner filed W.P.No.7391/2022 against not issuing of passport. By order dated 30.03.2022 this Court directed the Regional Passport Officer, Visakhapatnam to process the 1st petitioner's application for issuance of passport. Accordingly the passport was issued to the petitioner and while she was boarding the flight, Immigration Officer has refused to permit her to travel on the ground that the respondents 3 to 5 have issued LOC against the 1st petitioner and the same is still in force. Hence the 1st petitioner was restrained from travelling. The issue of LOC is illegal and violative of Article 19(1)(d) of the Constitution of India and it is against the guidelines issued by the Ministry of Home Affairs, Foreigners Division (Immigration Section), dated 22.02.2021. 3 The petitioners have neither deliberately evaded arrest nor failed to appear before the authorities. On the other hand the police after investigation found that there was no complicity of the petitioners in the offence. Hence the writ petition.
3. Heard Sri O. Manohar Reddy, learned counsel for the petitioners and learned Assistant Government Pleader for Home representing respondents 2 to 6.
4. While severely fulminating the issuing of LOC against the petitioners and allowing its continuation even after filing of the charge-sheet holding that there was no complicity of the petitioners in the alleged offences, learned counsel for the petitioners referring to the judgment in Sumer Singh Salkan v. Assistant Director's case in W.P.(Crl.) No.1315/2008 and Crl.Ref.1/2006 of High Court of Delhi, argued that in the said judgment it was clearly held that recourse to the 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 a likelihood of accused leaving the Country to evade trial / arrest. He would submit that it is only in such drastic contingencies that the police can seek for issuance of LOC. In the instant case, the police have already filed charge-sheet mentioning that there was no role of the present petitioners. In that 4 view, though the issuance of LOC at the inception itself was unjust, at least the same should have been deleted from the concerned records after filing of the charge-sheet. Instead, the respondent authorities allowed the LOC to continue causing much agony and insult to the petitioners particularly the 1st petitioner, violating her fundamental right of travelling abroad and pursuing her medical studies.
5. Learned Assistant Government Pleader for Home while admitting that the police filed charge-sheet against the accused Nos.1 to 3 and deleted the petitioners who are accused Nos.4 and 5, he would however submit that the trial Court has not so far accepted the charge-sheet and the same is pending for consideration and in that view of the matter, this Court may direct the petitioners to approach concerned Criminal Court to seek suitable relief. He relied upon the judgment in Dasari Sudheer v. State of Andhra Pradesh1 and submitted that in similar circumstances the High Court of Andhra Pradesh gave permission to the petitioners therein to move concerned Criminal Court to seek withdrawal of LOC.
6. The point for consideration is whether there are merits in the writ petition to allow?
7. POINT: I gave my anxious consideration to the above respective submissions. It is trite that the recourse can be had for 1 2015 SCC OnLine Hyd 816 = (2015) 3 ALT 1 5 issue of LOC only in extreme cases where the investigating agency establishes that the accused in cognizable cases deliberately evaded arrest or not appeared despite issuing of NBW and other coercive measures and also that there was every likelihood of accused absconding from the Country so as to not to submit to the jurisdiction of the concerned Criminal Court and thereby to evade arrest / trial and other criminal proceedings. In Sumer Singh Salkan's case cited by the learned counsel for the petitioners the High Court of Delhi reiterated the above aspect as to under what circumstance recourse to the LOC can be taken.
8. Be that it may, the present case is concerned, admittedly, we are not at the stage of issuing of LOC since it was already issued and pending against the petitioners. However what is germane for consideration is whether the LOC can be allowed to be continued against the petitioners when in the charge-sheet filed by the police, they gave clean chit to them. To confirm whether the police laid charge-sheet and exonerated petitioners or not, this Court through Registrar (Judicial) called for relevant information from the Court of Judicial Magistrate of I Class for Trial of Prohibition & Excise Offices-cum-FAC JMFC Mobile Court, Nellore. Learned magistrate vide letter dated 29.04.2022 sent the relevant information stating that in Crime No.231/2021 the Sub-Inspector of Police, Disha Police Station, Nellore laid charge-sheet against accused Nos.1 to 3 on 6 24.09.2021 while mentioning that he found no involvement of accused Nos.4 and 5 i.e., the petitioners herein and thereby not charge-sheeted them. Learned magistrate further intimated that the charge-sheet came up for consideration before him on 02.03.2022 and on perusal of the record he found prima facie case against the accused Nos.1 to 3 but found no incriminating material against the accused Nos.4 and 5 in the charge-sheet and hence he issued notice to de facto complainant directing her appearance before the Court on 25.04.2022 for filing objections if any. Accordingly de facto complainant appeared before the Court on 25.04.2022 and sought time for filing protest petition and hence learned magistrate extended the time till 03.06.2022.
9. Thus it is evident that in Crime No.231/2021 the police laid charge-sheet against the accused Nos.1 to 3 alone and found accused Nos.4 and 5 / petitioners herein not guilty of any offences. The trial Court, as a matter of rule, issued notice to the de facto complainant to submit her objections if any and accordingly the de facto complainant appeared and sought time for filing protest petition and the matter is posted to 03.06.2022. Thus strictly speaking so far as petitioners are concerned, the criminal proceedings are only technically existing as of now and their continuance depends on the ultimate order of the trial Court on the protest petition to be filed by the de facto complainant. 7
10. Now the request of the petitioners to delete the LOC and permit the 1st petitioner to travel abroad is concerned, when the matter is scrutinized holistically, the criminal case is a matrimonial offence wherein the prime accused is accused No.1 who is the husband of the de facto complainant. Petitioners are sister and brother-in-law of accused No.1. They are Doctors by profession and as per the charge- sheet they are residing separately from accused No.1 and de facto complainant. Now the 1st petitioner proposed to pursue her further medical studies in Canada. Even assuming for argument sake, protest petition is accepted and cognizance of offence is taken against the petitioners also, still, in my considered view, having regard to the nature of the offence which is neither a grave one nor involving moral turpitude of the petitioners, continuation of LOC is not warranted. Further, it is nobody's case that during the stage of investigation they did not cooperate with police. Hence the petitioners can be permitted to visit abroad for pursuing studies or employment by imposing suitable conditions.
11. Accordingly, this writ petition is allowed and petitioners are directed to appear before the Judicial Magistrate of I Class for Trial of Prohibition & Excise Offices-cum-FAC JMFC Mobile Court, Nellore on or before 10.05.2022 and execute personal bond for Rs.2,50,000/- each with two sureties each for like sum and file an affidavit giving undertaking that as and when required by the Court they will appear 8 for any enquiry / trial and furnish their full address including e-mail addresses and phone numbers to the satisfaction of the Court. On such compliance, learned Magistrate shall send intimation to the Respondents Nos. 3 to 5 and 7 in the writ petition and accordingly respondents 3 to 5 shall take immediate steps for withdrawal of LOC against the petitioners and 7th respondent shall permit the petitioners to travel abroad if they comply with the travel conditions. No costs.
As a sequel, interlocutory applications pending, if any, shall stand closed.
__________________________ U. DURGA PRASAD RAO, J 02.05.2022 krk 9 THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO WRIT PETITION No.12687 of 2022 02nd May, 2022 krk