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US based NRI husband Look Out Circular (LOC) quashed

Madhya Pradesh High court

W.P. No. 11468/2016

SUMIT KUMAR
VS.
STATE OF M.P. OTHERS

15.11.2016

Shri Anil Khare, learned senior counsel with Shri Harjas Singh Chhabra, learned counsel for the petitioner.

Shri B.D. Singh, learned Government Advocate for the respondents/State.

The petitioner has filed the present petition praying for quashment of Look Out Circular (LOC) dated 10.03.2016 passed by the respondents against the petitioner.

The petitioner has entered into the marriage with one Jaya Sharma on 05.07.2013 as per rituals of Arya Samaj. Thereafter, the marriage was took place as per Hindu Rituals on 08.03.2014. The complainant i.e. wife of the petitioner has went with him at America. She, thereafter, made a complaint that the petitioner and his parents are harassing her with regard to dowry and further used to physically assault her. On the basis of these allegations she had lodged an FIR on 08.08.2015. The petitioner lives in USA since 2007 and is working there since then. As soon as, the petitioner got the knowledge about the registration of FIR. He himself reached out to the Indian Embassy located in Washington DC and explained the whole situation to the highest officers in the Indian Embassy. The Indian Embassy, thereafter, passed all the information in the form of written document to the DGP Office Bhopal via Ministry of External Affairs. The family members of the petitioner also submitted their written statements to the Policy Authorities. As the FIR was lodged against the petitioner, the petitioner, therefore, filed an application for anticipatory bail under Section 438 of the Cr.P.C before this Hon’ble Court, which was registered as M.Cr.C. No. 5117/2016. This Court vide order dated 28.04.2016 has granted the anticipatory bail to the applicant, subject to certain conditions. During the pendency of this case for grant of anticipatory bail to the petitioner the Police Authorities filed a charge-sheet against the petitioner’s parents as well as the petitioner under Section 299 of the Cr.P.C. While seeking permission to file the charge-sheet, the City Superintendent of Police vide its letter dated 28.03.2016, written to respondent No. 2 stating for issuance of Look Out Circular (LOC) against the petitioner. Thereafter, the charge-sheet was handed over to the petitioner’s family at the time of filing of the same. When the brother of the petitioner came to know that the LOC has been issued against the petitioner. The petitioner’s brother, therefore, wrote to respondent No. 2 and also respondent No. 3 intimating the grant of anticipatory bail to the petitioner. It has been further stated that the petitioner is willing to appear before the trial Court and thus requested the respondent No. 2 to cancel the Look Out Circular opened against the petitioner. It has further been stated that from the letter dated 28.03.2016, it is clear that the LOC is issued solely on the ground that the petitioner is not appearing before the Court, however, it would be relevant to mention herein that since the petitioner’s application for anticipatory bail was pending, he did not appear before the authorities, but, duly cooperated through emails. It has further been stated that the reason for issuance of LOC has now become non existence as the petitioner after grant of anticipatory bail wants to come to India to duly appear before the trial Court. The petitioner has stated that the LOC has been issued arbitrarily without any justifiable reasons as the petitioner was duly cooperating with the investigation and always wanted to appear before the authorities subject to decision in his anticipatory bail application. Thus, against the said action of the respondents, the petitioner has filed the present writ petition.

The respondents have filed their reply and submits that as the petitioner was not appearing before the authorities and, therefore, the LOC was issued against the petitioner and the proceedings of issuance of LOC were initiated before grant of anticipatory bail by this Court. However, in view of the fact of grant of anticipatory bail to the petitioner, the respondents have submitted that the petitioner shall be released on bail immediately on his arrest as per the mandate of this Hon’ble Court in anticipatory bail order. It has further been stated that on prior intimation of date and place at which petitioner Sumit Kumar would come to India from USA, the answering respondents/police shall make all arrangements to ensure that he is not arrested and is given a reasonable time to fulfill the conditions for grant of bail as per the order passed by this Court i.e. Annexure P/4.

Learned senior counsel appearing on behalf of the petitioner submits that the sole object of issuance of LOC is to make the presence of the person who is not appearing before the Court in spite of issuance of non bailable warrant. He submits that in the present case, the petitioner is always ready to appear before the trial Court. He further submits that as now the anticipatory bail has been granted by this Court and, therefore, the LOC be quashed. He further submits that the petitioner wants to appear before the trial Court, however, due to issuance of LOC, the moment the petitioner would land in India, the immigration department would dealt him and hand over him to the Police Authorities of the said jurisdiction who make keep him in custody till an Officer of Bhopal Police does not reach to arrest him. He further submits that the said exercise would amounts to curtailing the personal liberty of the petitioner irrespective of the fact that he has been granted anticipatory bail. He further submits that the petitioner did not appear before the authorities, as his application for anticipatory bail was pending before this Court. He further submits that the LOC is to be issued only in the case where a person after issuance of the non bailable warrant did not appear before the authorities. However, in the present case, the LOC was issued on 10.03.2016 and non bailable warrant is issued against the petitioner on 25.04.2016. Thus, the LOC is issued prior to issuance of non bailable warrant. He further relied on the judgement passed by the Madras High Court in the case of Arockia Jeyabalan Vs. The Regional Passport Officer, Mount Road, Chennai Others, 2014-4-L.W. 841. In such circumstances, the learned senior counsel submits that the LOC be quashed.

On the other hand, learned counsel appearing for the respondents supports the issuance of the LOC. He submits that the investigating agency is very within its jurisdiction to issue a Look Out Circular in cases where the accused was deliberately evading arrest or not appearing in the trial Court despite non-bailable warrant. The circular issued by the Central Government, it provides that a request for issuance of LOC is to be made by the investigating officer to the competent authority of the Central Government and the person against whom the LOC is issued must join investigation by appearing before the IO or should surrender before the Court concerned or should satisfied the Court that LOC was wrongly issued against him and if the IO satisfied that the LOC has been wrongly issued he may withdrawn it. He further argues that now as the anticipatory bail has been granted to the petitioner then, the Police Authorities shall make all arrangements to ensure that he is not arrested and he will be given a reasonable time to fulfill the conditions for grant of bail. I have heard learned counsel for the parties and perused the record.

The petitioner had married to one Jaya Sharma in the year 2013 and FIR was lodged by Jaya Sharma i.e. complainant for offences punishable under Section 498-A, 506 and 34 of the Indian Penal Code and also Section 3/4 of the Dowry Prohibition Act on 08.08.2015 to the Police Station Mahila Thana, Bhopal. As soon as, the petitioner got the information about the registration of FIR against him. As he is residing at USA, he went to the Indian Embassy and explaining them about the all incident. The Petitioner duly followed with all Police Officers via email, thereby, stating that the petitioner’s clear intention to cooperate with the investigation. As the FIR was registered against the petitioner, the petitioner, therefore, filed an application under Section 438 of the Cr.P.C for grant of anticipatory bail. This Court vide order dated 28.04.2016 has allowed the application submitted by the petitioner and grant the anticipatory bail to the petitioner. In the mean time, the respondents have issued a Look Out Circular against the petitioner and, therefore, he is not able to come back to India to fulfill the conditions of the bail order, as the moment he would land in India, the immigration authorities at the Airport would arrest him in terms of the Look Out Circular opened against the him. The object of Look Out Circular is to ensure that a person is available for interrogation or trial or enquiry. However, in the present case, as the petitioner has already been released on anticipatory bail and, therefore, there is no reason to keep the LOC pending against the petitioner.

It has been stated by learned senior counsel that the petitioner is ready to appear before the trial Court and cooperate with the investigation and, therefore, there is no reason to keep the LOC pending against the petitioner. The Madras High Court in the case of Arockia Jeyabalan (supra) in paragraph 12 has held as under:-“The object of a Look Out Circular is to ensure that a person is available for interrogation or trial or enquiry. Now that the Court has released him on bail subject to certain conditions as well as sureties, the apprehension that the petitioner may not make himself available and amenable to law, has gone.”

The Madras High Court in the said case has held that the object of the LOC is to ensure that a person is available for interrogation or trial or enquiry and now as the Court has released him on bail on certain conditions as well as sureties, the apprehension that the petitioner may not make himself available and amenable to law, has gone. In the present case, also as the petitioner was already released on bail by the Court, the apprehension that the petitioner may not make himself available and amenable to law, has gone. Thus, in view of the aforesaid, the petition filed by the petitioner is allowed. The Look Out Circular dated 10.03.2016 issued against the petitioner is hereby quashed.

(Ms.Vandana Kasrekar)

Judge

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