Posts tagged ‘arrest’

LOOK OUT CIRCULAR

For most Indians, the term LOC would normally mean the Line of Control. However in Indian legal context LOC means Lookout Circular.

Meaning of LOC:
•It is a circular used by authorities to check whether a travelling person is wanted by the police. LOC is a coercive measure to make a person surrender to investigating agency or courts of law. It is generally issued against absconding criminals/ accused to stop them from entering or crossing borders or to track /detain the wanted person and hand them over to appropriate authority.

Types of LOC:
•Local LOC: It is limited to a particular town / city area. In this case, usually the LOC is issued to the local Airport, Sea port, Train or Bus stations.

•National LOC: Is a nationwide circular to all the Airports, Seaports, and border agencies across the border within a country.

•International LOC: International circular to different countries’ Airports, Seaports and across the international Border agencies. This has a limitation of bilateral understanding between the countries.

•Section 498A IPC and LOC: Usually issued by the Police against the accused NRI husband and his family members after the Police register an FIR. In some cases, the Court orders the same against the accused NRI’s, if the accused does not surrender to the court within the stipulated time interval given.

Authority to issue LOC:
•LOC can be issued only with the approval of an officer not below the rank of Deputy Secretary to the Government of India/ Joint Secretary in the State Government /Superintendent of Police concerned at the district level. It can also be issued by the court before which the criminal case lies.

Principles to issue LOC:
The basic guidelines regarding the issuance of LOC’s in relation to Indian citizens issued by the Ministry of Home Affairs are as follows:

•The request to issue/opening of LOC must be issued with the approval of an officer in authority. The authorities includes the Ministry of Home Affair, Ministry of External Affairs, the Customs and Income Tax Department, Directorate of Revenue intelligence, Central Bureau of Investigation, Court, Interpol, Regional passport Officers, Police authorities in various States, etc.

•Lookout circulars/notice for all immigration check posts against any Indian person can be issued only in the format prepared by the Home Ministry.

•The notice issuing agency must give full identification details of the accused person on an already prescribed format. LOC will not be issued for less than three identity parameters other than name of the accused.

Performa of LOC:
•The request for opening of LOC is required to be made to all immigration Check-posts in the country in the Official Format prescribed by the MHA.
•The details of the person looked out for in the circular includes: Name, address, Picture / photo or description of the person’s physical appearance, Passport number/details, other unique identification card number, alleged offence details / case involved in.
•In cases linked to, terrorist, anti national elements etc, LOC can be issued without complying with all rules, parameters or prescribed Performa.

Validity of LOC:
•LOC is valid for a period of one year. However, in case the originating agency wants to extend the validity beyond one year, it can ask for the extension before the expiry of the one-year period. If no request is made for the extension of the LOC within the stipulated period of one year, the Immigration Officer concerned is authorized to suspend the LOC.
•In the case of Court and Interpol, LOC does not expire within one year.

Consequences of LOC:
•Issuance of LOC can impact different persons differently. It curtails person’s ability to travel in and outside of country. The person has to face arrest or detention at the place where found.

Right to Information:
LOC is highly confidential document. Unless the case is high profile, whether the LOC is issued or not is not known to public at large.

Still one can try to get the information from the following sources:

•Police Station where the FIR is lodged
•District SP/DSP Office or similar rank officer in any investing agency.
•Immigration Authorities
•Foreigner Regional Registration Office (FRRO) in case of NRI.
•Trial Court records, if court have initiated the issuance of LOC.

Steps to be followed when LOC is issued:
•Have all the legal documents with you.
•Obtain Anticipatory bail in the case.
•Confirm whether the LOC is issued against you by the police / court and also the type of LOC.
•Show the certified copy of the Anticipatory bail to the authorities whilst entering the country. For e.g.: to immigration officers in the airport during the immigration check.
•Authorities should take a photocopy of the Anticipatory bail and hand back the original to you, so that you take your originals with you and proceed.
•Moreover, if the authorities try to detain you, get in touch with concerned Police (Sub Inspector / Deputy Superintendent Police/Investigating Officer) to inform the immigration authorities that you are already enlarged on Anticipatory bail and that they do not require your arrest. If they fail to do so, the victim can file a complaint against them next day detailing the violation of your rights and the contempt of the court order i.e. Anticipatory bail.
•Whilst regularizing the bail or whilst seeking the regular bail in the court, file a supplementary application seeking the LOC to be lifted.
•Failing to file supplementary application, one should look for the bail conditions to make sure there are no restrictions like not to leave the country without prior permission of the court. If there is such condition, please do get the permission from the court and keep the certified copy of the court’s order permitting your departure from the country to produce before the immigration officers in the airport or sea-port.
•One need to push the police to forward the court order to the concerned authorities (the concerned police station and in turn to the immigration authority at the port) to lift the LOC altogether as well as keeping the certified copy with yourself in hand. You need to request the copy of the confirmation for the same from the Police or ask for a letter confirming the same (this is in addition to the court order).

Cancellation or Lifting of LOC:
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.
After getting LOC withdrawn by the authority or court, apply for multiple certified copies of the same. Provide one certified copy with covering letter to investigating officer; SP/DSP concerned and send a copy to the nodal officer at, ‘Deputy Director, Bureau of Immigration (Bol), East Block-VIII, R K Puram, New Delhi-110066.
If you have LOC removal court order, the immigration officer would contact the originator and only on confirmation the LOC will be cancelled or lifted.

Authored by:
Adv. Shirin Yusuf,
Associate,
MENTO ASSOCIATES.

Arneshkumar v/s State of Bihar and another

The Supreme Court in Arneshkumar v/s State of Bihar and another, observed that there is rampant misuse of the provisions of Sec. 498-A of IPC and Sec 3 & 4 of Dowry Prohibition Act. In order to bring the situation under control the Supreme Court has passed the following guidelines.
The Supreme Court, through this judgement ensures that -
i. The Police officers do not arrest accused unnecessarily and
ii. The Magistrate do not authorise detention casually and mechanically.
The State Governments are directed by this Judgement:
1. To instruct the Police officers not to automatically arrest when the case is registered under section 498-A of the IPC and Dowry Prohibition Act, until it satisfies the necessity for arrest under the parameters laid down in section 41 of CrPC.
2. The Police Officers to be provided with the check list containing specified sub-clauses under section 41(1)(b)(ii) of CrPC. The said check list shall be duly filled and the police officer shall furnish the reasons and materials which necessitated the arrest, while producing the accused before magistrate for further detention.
3. The Magistrate on inspecting the report furnished by the Police officer, only after recording its satisfaction, shall authorise the detention of the accused.
4. The decision not to arrest an accused is to be forwarded to the Magistrate within 2 weeks from the date of institution of case with a copy to Superintendent of Police which may be extended by the superintendent of Police for reasons to be recorded in writing.
5. Notice of appearance in terms of section 41 CrPC shall be served to accused within 2 weeks of institution of the case, which may be extended by the Superintendent of Police of District for the reasons to be recorded in writing.
6. Failure to comply with the directions given above, the police officer concerned shall be liable for departmental action and punished and , the contempt of court is to be instituted against them before the High Court having territorial jurisdiction.
7. Authorising detention without recording reasons as above said, by the Judicial Magistrate concerned, shall make the Magistrate liable for departmental action by the appropriate High Court.

The Hon’ble Supreme Court also clarifies that the directions aforesaid shall not only apply to the cases under sec. 498-A of the IPC or sec. 4 of the Dowry Prohibition Act, but also to such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
Authored by:
Shrinivasreddy Mudagannavar
Intern
Mento Associates

IS ANTICIPATORY BAIL AVAILABLE WHEN A COMPLAINT IS NOT REGISTERED?

Registration of an FIR is not mandatory for a person to approach the court of law for an order of anticipatory Bail. There are various citations of Supreme Court and High Courts in this regard.   Even in the absence of a pending criminal complaint against a person, if such person has an apprehension of arrest, he can approach the Sessions court or High court for an order of Anticipatory Bail. The apprehension of arrest may be elicited from the facts and circumstances of the matter, conduct of respondent police, the acts and communications of the potential complainant etc. On the whole, the applicant must convince the court, primarily that there is every likelihood for a criminal complaint to be lodged against him and the probability of respondent police arresting him based on the said complaint.

             An applicant cannot expect a blanket order from the court granting Anticipatory Bail. The applicant need to specify in his application the probable sections under which his opponent  may file a complaint against him,  which is even more difficult in comparison to a scenario where the complaint is already registered against him. This is because, if a complaint is already registered against the applicant, then the applicant as well as the court,  both are  convinced as to what are the sections which constitute the alleged offence. However in a case where the FIR is not yet registered, it is left to the mental exercise of both the applicant as well as the court to figure out the probable offence.
                                  
             The requirement of spelling out the exact provisions of the offence in an application for Anticipatory Bail may cause a technical difficulty for the applicant.  For instance if a court grants anticipatory bail to an applicant for an offence punishable under certain penal sections, his opponent can still trap him by lodging a complaint under some other sections. This dilutes the effect of the result got by the applicant. However the applicant is entitled to file for a fresh anticipatory bail and the obtainment of previous anticipatory bail will definitely be a plus factor while considering the second bail application.

             Similarly in matters where the FIR is not yet registered, courts have a tendency to grant anticipatory bail for limited periods like 45 days, 60 days etc. This again puts the applicant into some inconvenience, as his opponent may wait for the period to elapse for filing a complaint against him. In such a scenario the applicant can file one more application and obtain an anticipatory bail. The earlier anticipatory bail will definitely assist him in the obtainment of a new anticipatory bail. 

Power of arrest

A Police officer has the power to arrest any person without a warrant,  (a) who has been concerned in a cognizable offence or against whom a reasonable complaint has been made (b) who has in his possession any, implement of house breaking, without lawful excuse,(c) who is a proclaimed offender (d) in whose possession stolen property is found (e) who obstructs a police officer in the execution of his duty, or who has escaped or attempts to escape from lawful custody and (f) who is a deserter from the armed forces of the Union.

When any person commits a non-cognizable offence in the presence of a police officer and refuses to gives his name and residence or gives a false name or residence, then he may be arrested by such officer in order to ascertain his name or residence.

A private person may arrest or cause to be arrested any person who in his presence commits a non bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.

If a person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, the police officer may use all means necessary to effect the arrest. However the police officer shall not cause of the death of a person, while trying to arrest, who is not accused of an offence punishable with death or with imprisonment for life.