Gedela Sowjanya vs The Union Of India,
2022 Latest Caselaw 2212 AP

     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.

(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.

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

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

2015 SCC OnLine Hyd 816 = (2015) 3 ALT 1

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

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.

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

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

THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

WRIT PETITION No.12687 of 2022

02nd May, 2022 krk