Telangana High Court

Mirza Ali Hassan vs The Union Of India on 23 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

       THE HON'BLE MRS JUSTICE SUREPALLI NANDA

              WRIT PETITION No. 1594 OF 2024

ORDER:

Heard Mr. Dharmesh D.K. Jaiswal, learned counsel

for the petitioner, and Mr. Gaadi Praveen Kumar, learned

Deputy Solicitor General of India appearing on behalf of

respondent Nos.1 & 2, learned Government Pleader for

Home, appearing on behalf of respondent Nos.3 to 5.

2. The petitioner approached this Court with the

following prayer :

" ..... to issue to issue an appropriate Writ Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondent No 5 in originating an LOC with the Respondent No 2 against the petitioner in spite of the Order of this Hon'ble Court, dated 16.03.2023 in Crl. P. No. 2639 of 2023 issuance of the Notice U/s 41A Cr P C as well as filing of Charge sheet vide C.C.No.6184 of 2023 on the file of the Learned XIII Additional Chief Metropolitan Magistrate, Nampally, Hyderabad as illegal arbitrary violation of Article 21 of the Constitution of India and consequently i) Set aside the Look Out Circular pending against the Petitioner originated by the Respondent No.5, ii) Direct the Respondent No 3 and 4 to communicate to the Respondent No. 2 for closure of LOC originated by any of the Police Station under their Jurisdiction which was issued at the behest of the Respondent No.6 iii) and pass such other order or orders as the Hon'ble Court may deem fit and proper in the circumstances of the case."

3. The case of the petitioner, in brief, as per the

averments made in the affidavit filed by the petitioner in

support of the present writ petition is as follows:

That the petitioner married respondent No.6 under Muslim

Personal Law at Hyderabad by spending more than Rs.37 lakhs

for the rituals and jewellery etc. which petitioner had spent on

respondent No.6 and both of them stayed at Park Hyatt Hotel

from 17.7.2022 to 28.7.2022 thereafter, at petitioner mother's

apartment at Banjara Hills. The 6th respondent broke petitioner's

wrist while exercising in the GYM. Both of the petitioner and the

6th respondent were in the process of taking a decision about

their marriage and respondent No.6 communicated to the

petitioner in the presence of his family members, over phone

that she wants to take Khula and her father would start the

Khula process. The father of respondent No.6 with his

henchmen, criminally trespassed into the flat of mother of the

petitioner, taking advantage of her old age and illness, and

threatened her with dire consequences and took away the

belongings of respondent No.6, who was guiding her father over

video call.

4. It is further the case of the petitioner that the Police,

Panjagutta issued F.I.R. No.68 of 2023 dated 21-01-2023

against the petitioner and his mother for the offences punishable

under Sections 417, 498-A, 323 of IPC and Sections 3 and 4 of

Dowry Prohibition Act. The Police, Panjagutta issued notice to

the petitioner under Section 41-A of Cr.P.C. over Whats App.

Respondent No.6 also filed D.V.C.No.56 of 2023 against the

petitioner and his mother with all false and defamatory

allegations. For which the petitioner and his mother approached

this Court on Crl.P.No.2639 of 2023 and the Court, directed the

Police, Panjagutta Station to conclude the investigation without

taking any coercive steps against the petitioner by strictly

following the procedure laid down under Section 41-A of Cr.P.C.

and the guidelines issued by the Hon'ble Supreme Court of India

in Arnesh Kumar vs. State of Bihar reported in (2014) 8

SCC 273. The Police purportedly concluded the investigation

and filed charge sheet vide C.C.No.6184 of 2023 on the file of

XIII Addl. Chief Metropolitan Magistrate, Manoranjan complex

arraying the petitioner as accused No.1 and his mother as

accused No.2.

5. The mother of the petitioner lodged a private complaint

before the III Addl. Chief Metropolitan Magistrate, Nampally,

Hyderabad, which was referred to Banjara Hills P.S. and F.I.R.

No.463 of 2023 was registered. The petitioner and his mother

filed a detailed counter affidavit in D.V.C.No.56 of 2023. The

petitioner made an RTI online application with the respondent

Nos.1 and 2 to furnish details of pendency of LOC against him.

Respondent No.1 also sent a confirmation email. The petitioner

through his Advocate also addressed an email to the respondent

No.2 and 4 to issue the details of Look Out Circular originated

against him. The petitioner made an RTI application with

respondent No.3 seeking details of the Look Out circular

originated by Panjagutta Police Station. Aggrieved by the said

lookout circular petitioner filed the present writ petition.

6. Counter affidavit has been filed by the 4th

respondent, in particular para Nos. 4 to 6 read as under:

"4. It is respectfully submitted that pursuant to the said complaint a case has been registered in Crime No. 68/2023 Dated: 21.01.2023 U/s. 417, 498-A, 323 of IPC; Section 3 and 4 of Dowry Prohibition Act, against the said Mirza Hassan and his mother and investigation has been taken up. During the course of investigation, the

investigating officer apprehended the accused A-2 on 02.02.2023 and she voluntarily confessed to have committed the offence along with her son, and she also revealed that, her son is still in Saudi Arab, as such the investigating officer served Notice U/s. 41-A Cr.P.C.. on the accused A-2 on 02.02.2023 under proper acknowledgment.

5. It is respectfully submitted that moreover, the investigating officer made a requisition to the Joint Commissioner of Police, CCS, DD, Hyderabad on 12.03.2023 for issuance of Look Out Circular against the accused A-1, as he is residing abroad. Subsequently, Look Out Circular (LOC) has been initiated vide No. 74/Look Out Circular/CCS-DD/HYD/2023 Dated:

01.04.2023 and the same is continued. After completion of investigation, charge sheet has been filed, vide C.C. No. 6184/2023 and the case is pending trial before the Hon'ble XIII Addl. Chief Metropolitan Magistrate at Hyderabad.

6. It is respectfully submitted that the petitioner contended to delete/withdraw the Look Out Circular issued (LOC) against him. In this regard it is submitted, as stated above, the petitioner/A-1 is still abroad and did not cooperate with the investigating agency and instead came up with this writ petition. If the Look Out Circular (LOC) is withdrawn there is every chance that the petitioner/A-1 may escape from the clutches of

law, hence continuation of LOC against him is essential in the above case".

PERUSED THE RECORD.

7. Office Memorandum dated 22.02.2021 dealing with

consolidated guidelines for issuance of Look Out Circular

in respect of Indian Citizens and Foreigners and the

relevant paras of the said Office Memorandum issued by

the Ministry of Home Affairs and in particular, A, B, C, D, H,

I, J, and L, of the said circular are extracted hereunder:

"6. The existing guidelines with regard to issuance of Look Out Circulars (LOC) in respect of Indian citizens and foreigners have been reviewed by this Ministry. After due deliberations in consultation with various stakeholders and in supersession of all the existing guidelines issued vide this Ministry's letters/O.M. referred to in para 1 above, it has been decided with the approval of the competent authority that the following consolidated guidelines shall be followed henceforth by all concerned for the purpose of issuance of Look Out Circulars (LOC) in respect of Indian citizens and foreigners:-

A. The request for opening an LOC would be made by the Originating Agency (OA) to the Deputy Director, Bureau of Immigration (BoI), East Block - VIII, R.K. Puram, New

Delhi - 110066 (Telefax: 011- 26192883, email:[email protected]) in the enclosed proforma.

B. The request for opening of LOC must invariably be issued with the approval of an Originating Agency that shall be an officer not below the rank of - (i) Deputy Secretary to the Government of India; or (ii) Joint Secretary in the State Government; or (iii) District Magistrate of the District concerned; or (iv) Superintendent of Police (SP) of the District concerned; or (v) SP in CBI or an officer of equivalent level working in CBI; or (vi) Zonal Director in Narcotics Control Bureau (NCB) or an officer of equivalent level (including Assistant Director (Ops) in Headquarters of NCB]; or (vii) Deputy Commissioner or an officer of equivalent level in the Directorate of Revenue Intelligence or Central Board of Direct Taxes or Central Board of Indirect Taxes and Customs; or (viii) Assistant Director of Intelligence Bureau/Bureau of Immigration (BoI); or (ix) Deputy Secretary of Research and Analysis Wing (R&A W); or (x) An officer not below the level of Superintendent of Police in National Investigation Agency; or (xi) Assistant Director of Enforcement Directorate; or (xii) Protector of Emigrants in the office of the Protectorate of Emigrants or an officer not below the rank of Deputy Secretary to the Government of India; or (xiii) Designated officer of Interpol; or (xiv) An officer of Serious Fraud Investigation Office (SFIO), Ministry of Corporate Affairs not below the rank of Additional Director (in the rank of Director in the

Government of India); or (xv) Chairman/Managing Directors/Chief Executive of all Public Sector Banks."

C. LOCs can also be issued as per directions of any Criminal Court in India. In all such cases, request for opening of LOC shall be initiated by the local police or by any other Law Enforcement Agencies concerned so that all parameters for opening LOCs are available.

D. The name and designation of the officer signing the Proforma for requesting issuance of an LOC must invariably be mentioned without which the request for issuance of LOC would not be entertained.

H. Recourse to LOC is to be taken in cognizable offences under IPC or other penal laws. The details in Column IV in the enclosed Proforma regarding 'reason for opening LOC must invariably be provided without which the subject of an LOC will not be arrested/detained.

I. In cases where there is no cognizable offence under IPC and other penal laws, the LOC subject cannot be detained/arrested or prevented from leaving the country. The Originating Agency can only request that they be informed about the arrival/departure of the subject in such cases.

J. The LOC opened shall remain in force until and unless a deletion request is received by BoI from the Originator itself. No LOC shall be deleted automatically. Originating Agency must keep reviewing the LOCs opened at its behest on quarterly and annual basis and submit the proposals to delete the LOC. If any, immediately after such a review. The BOI should contact the LOC Originators through normal channels as well as through the online portal. In all cases where the person against whom LOC has been opened is no longer wanted by the Originating Agency or by Competent Court, the LOC deletion request must be conveyed to BoI immediately so that liberty of the individual is not jeopardized.

L. In exceptional cases, LOCs can be issued even in such cases, as may not be covered by the guidelines above, whereby departure of a person from India may be declined at the request of any of the authorities mentioned in clause (B) above, if it appears to such authority based on inputs received that the departure of such person is detrimental to the sovereignty or security or integrity of India or that the same is detrimental to the bilateral relations with any country or to the strategic and/or economic interests of India or if such person is allowed to leave, he may potentially indulge in an Act of terrorism or offences against the State and/or that

such departure ought not be permitted in the larger public interest at any given point in time.

8. This Court opines that the Look Out Circular should

be issued in exceptional circumstances and on cogent

reasons and the same cannot be permitted to be issued in

a mechanical manner.

9. A bare perusal of Sub-para J of Office Memorandum

dated 22.02.2021 (referred to and extracted above)

mandates that a LOC shall remain in force until and unless

a deletion request is received by the Bureau of

Immigration from the Originator and that no LOC shall be

deleted automatically. Although this clause J cast an

obligation on the originating agency to review the LOC on

a quarterly/annual basis and submit proposals for deletion

of the same, the same however is not followed strictly by

the authorities concerned. In the present case the LOC

have been issued against the Petitioner in the year 2023

i.e. on 01.04.2023 and subsequently, however, has not

been reviewed as mandated at sub-para J of the Office

Memorandum dated 22.02.2021 and the same is being

continued indefinitely.

10. A bare perusal of Sub-para L of the circular

dt.22.02.2021 (referred to and extracted above) clearly

indicates that LOCs could be issued in exceptional cases

where the departure of the person concerned will be

detrimental to the sovereignty, security and integrity of

India or is detrimental to the bilateral relations with any

country or to the strategic and/or economic interests of

India or that person may potentially indulge in an act of

terrorism or offence against the State, if such person is

allowed to leave or where travel ought not be permitted in

the larger public interest at any given point of time. This

Court is of the firm opinion that lookout circular can be

issued on the specific grounds stated in Sub-para L of the

OM dt.22.02.2021 (referred to and extracted above). The

ground used against the Petitioner herein even as per the

averments made at paras 5 and 6 of the counter affidavit

filed by the 4th respondent is two fold. Firstly, the

petitioner is residing abroad and secondly, that if the

lookout circular is withdrawn there is every chance that

the petitioner/A1 may escape from the clutches of law,

hence, continuation of LOC agaist the petitioner is

essential. This Court opines that the plea that Petitioner

would abscond and not co-operate with the Court

proceedings cannot be the ground for continuing LOC

against the petitioner indefinitely. This Court opines that

the Police can resort to LOC only in drastic contingencies

and it is not the case that the Petitioner herein would not

co-operate with the trial and the Court proceedings since

the learned counsel appearing on behalf of the petitioner

contends that the petitioner herein undertakes to co-

operate with the investigation and Court proceedings as

well. This Court opines that when once a notice under

Section 41-A Cr.P.C. is issued by the police, and if the

police apprehend that the accused will not co-operate with

the investigation OR TRIAL OR Court proceedings it is

always open to the police to make an appropriate

Application before the Court concerned for imposing a

condition that the accused be directed not to leave the

country. But without there being any cogent reasons

merely on apprehension and presumption that if lookout

circular is withdrawn, the petitioner may escape from the

clutches of the law, LOC cannot be continued against the

petitioner for months together curtailing the liberty of the

petitioner guaranteed under Article 21 of the Constitution

of India.

11. The look out circular issued against the petitioner is

contrary to sub-para J and L of the Office Memorandum

dated 22.02.2021 and therefore, this Court opines that the

2nd Respondent herein cannot have any continuing reasons

to interfere with the Petitioner's personal liberty and

Petitioner's right to travel outside the country.

12. Few judgments of the Apex Court and other Courts

pertaining to right to liberty and lookout circulars and the

observations made there under :

A. The Apex Court in judgment reported in 2013 (15)

SCC page 570 in Sumit Mehta v State of NCT of Delhi at

para 13 observed as under :

"The law presumes an accused to be innocent till his guilt is proved. As a presumable innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution of India."

B. The Apex Court in "MENAKA GANDHI VS. UNION OF

INDIA AND ANOTHER" reported in AIR 1978 SC 597, and

in "SATISH CHANDRA VERMA v. UNION OF INDIA (UOI)

AND OTHERS" reported in 2019 (2) SCC Online SC 2048

very clearly observed that the right to travel abroad is a

part of a personal liberty.

C. The Apex Court way back in 1967, in Judgment

reported in AIR 1967 SC 1836, in "Satwant Singh Sawhney

v. D. Ramarathnam, Assistant Passport Officer held that

the right to travel abroad falls within the scope of personal

liberty enshrined under Article 21 of the Constitution of

India and that no person can be deprived of his right to

travel except according to the procedure established by

law.

D. In the case of E.V.Perumal Samy Reddy v State,

reported in 2013 SCC online Mad 4092, the Madras High

Court while setting aside an LOC, observed as under:

"9. It is basic that merely because a person is involved in a criminal case, he is not denude of his Fundamental Rights.

It is the fundamental right of a person to move anywhere he likes including foreign countries. One's such personal freedom and liberty cannot be abridged.[See: Article 21 Constitution of India]. In the celebrated case in MENAKA GANDHI Vs. UNION OF INDIA[AIR 1978 SC 597], the Hon'ble Supreme Court upheld the constitutional right of persons to go abroad. The phrase no one shall be deprived of his "life and liberty" except procedure established by law employed in Article 21, had deep and pervasive effect on fundamental right and human right. MENAKA GANDHI (supra) ushered a new era in the annals of Indian Human Rights Law. It had gone ahead of American concept of 'Due Process of Law'.

10. But, the fundamental right to move anywhere including foreign countries could be regulated. Where persons involved in criminal cases are wanted for investigation, for court cases, persons, who are anti-social elements their movements can be regulated. Need may arise to apprehend persons, who have ability to fly, and flee away from the country. So, L.O.C. orders are issued. It is an harmonius way out between a person's fundamental right and interest of the society/state. But, in any case, it must be fair and reasonable. It should not be indiscriminate without any reason or basis.

E. In the case of Rana Ayyub v Union of India and

another W.P. (CRL) 714/2022, reported in 2022 SCC

Online Del 961 the Delhi High Court at paras 12 and 13 of

the said judgment observed as under:

"12. In the particular facts of the case, it becomes evident that the LOC was issued in haste and despite the absence of any precondition necessitating such a measure. An LOC is a coercive measure to make a person surrender and consequentially interferes with petitioner's right of personal liberty and free movement. It is to be issued in cases where the accused is deliberately evading summons/arrest or where such person fails to appear in Court despite a Non-Bailable Warrant. In the instant case, there is no contradiction by the respondent to the submission of the petitioner that she has appeared on each and every date before the Investigating Agency when summoned, and hence, there is no cogent reason for presuming that the Petitioner would not appear before the Investigation Agency and hence, no case is made out for issuing the impugned LOC.

13. The impugned LOC is accordingly liable to be set aside as being devoid of merits as well as for infringing the Human right of the Petitioner to travel abroad and to exercise her freedom of speech and expression. For the reasons discussed above, the impugned LOC is set aside and quashed.

F. In the case of Soumen Sarkar v State of Tripura,

represented by the Secretary, Home Department and

others reported in 2021 SCC online Tri 143, the High Court

of Tripura on perusal of MHA's Office Memorandum dated

31.08.2010, stated that the reasons for opening LOC must be

given categorically. It was held that LOCs could not be

issued as a matter of course, but only when reasons

existed and the accused deliberately evaded arrest or did

not appear in the trial Court.

G. In the case of Karti P.Chidambaram v Bureau of

Immigration, reported in 2018 SCC online Mad 2229, the

Hon'ble Madras High Court observed as under:

"LOCs cannot be issued as a matter of course, but when reasons exist, where an accused deliberately evades arrest or does not appear in the trial Court. The argument of the learned Additional Solicitor General that a request for Look Out Circular could have been made in view of the inherent power of the investigating authority to secure attendance and cooperation of an accused is contrary to the aforesaid circulars and thus, not sustainable.

74. It is, in the view of this Court, too late in the day to contend that whether or not to issue an LOC, being a executive decision, the same is not subject to judicial review. It is now well settled that any decision, be it executive or quasi-judicial, is amenable to the power of judicial review of the writ Court under Article 226 of the Constitution of India, when such decision has adverse civil consequences. An LOC, which is a coercive measure to make a person surrender and consequentially interferes with his right of personal liberty and free movement, certainly has adverse civil consequences. This Court, therefore, holds that in exercise of power of judicial review under Article 226 of the Constitution, the writ Court can interfere with an LOC.

13. In the case on hand, the offences alleged against the

Petitioner are not grave offences. They are offences under

Sections 417 498-A, 323 of IPC and Sections 3 & 4 of

Dowry Prohibition Act. By virtue of opening an LOC against

the Petitioner and continuing the same indefinitely there is

every chance that the Petitioner would loose his job and

would be put to serious hardship.

14. Taking into consideration the aforesaid facts and

circumstances of the case and duly taking into

consideration the law laid down by the Apex Court and

other High Courts in various judgments (referred to and

extracted above) and again enlisted hereunder:

1. The Apex Court judgment in Sumit Mehta v State of NCT of Delhi reported in 2013 (15) SCC 570.

2. The Apex Court judgment in Menaka Gandhi v Union of India and another reported in AIR 1978 SC 597.

3. The Apex Court judgment in Satish Chandra Verma v Union of India and others reported in 2019 (2) SCC Online SC 2048.

4. The Apex Court judgment in Satwant Singh Sawhney v D.Ramarathnam, Assistant Passport Officer reported in AIR 1967 SC 1836.

5. The Apex Court judgment in E.V.Perumal Samy Reddy v State reported in 2013 SCC Online Mad.4092.

6. The Delhi High Court judgment in Rana Ayyub v Union of India and another reported in 2022 SCC online Del 961.

7. The High Court of Tripura judgment in Soumen Sarkar v State of Tripura represented by the Secretary, Home Department and others reported in 2021 SCC oneline Tri.143.