In a strongly worded ruling, the Karnataka High Court (Bengaluru Bench) has held that the issuance of a Look Out Circular (LOC), warrantless arrest despite subsisting anticipatory bail, and seizure of passport by the Investigating Officer were illegal and unconstitutional, while awarding Rs.5 lakh to the husband and Rs.4 lakh to his elderly father, and laying down exhaustive general directions to the State police on arrest, LOC and passport safeguards.
The legal principle that emerges is that the existence of the power to arrest is distinct from the justification for its exercise, and that in offences under Section 498A IPC (and more generally in offences punishable with imprisonment for a term which may be less than seven years or which may extend to seven years), an Investigating Officer may arrest only after satisfying himself and recording in writing his reasons that the arrest is necessary for one or more of the purposes in sub-clauses (a) to (e) of Section 41(1)(b)(ii) CrPC, as mandated by Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273], added the Court.
Further, the High Court explained that an order of anticipatory bail under Section 438 CrPC operates as a direction that, in the event of arrest, the person shall be released on bail, and Section 438(3) requires that where a person protected by such an order is arrested without warrant, he must be released on bail, and any subsequent warrant must be a bailable warrant in conformity with the order; a non-bailable warrant cannot be pressed into service to defeat the protection the sub-section confers.
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The Court also explained that a Look Out Circular is a coercive measure whose recognised purpose is to prevent a person from leaving or entering the country in a manner that would defeat the process of law, and it cannot be opened mechanically merely because a Section 498A case has been registered, nor against a person who is voluntarily entering the country. An Investigating Officer has no power to impound or retain a passport, since the power to impound under Section 10(3) of the Passports Act, 1967 vests only in the passport authority, and the Passports Act being a special law prevails over the general power of seizure.
Resultantly, the Court asserted that the State is vicariously liable for the tortious and unconstitutional acts of its police officers, and the public law remedy of compensation for violation of fundamental rights under Article 21, exists independently of and alongside departmental action against the erring officer. Where the State withholds the best evidence despite specific directions of the Court, an adverse inference may be drawn against the party in possession of that evidence.
A Single Judge Bench of Justice Suraj Govindaraj noted that an LOC is a coercive measure whose recognised purpose, under the executive instructions of the Ministry of Home Affairs, is to prevent a person from leaving or entering the country in a manner that would defeat the process of law, and to secure the presence of a person who is deliberately evading that process. Since Petitioner No.2 was voluntarily entering India, was residing abroad to the knowledge of the investigating agency, and was already protected by anticipatory bail, the Court held that the LOC was wholly misconceived.
The State, despite specific directions to produce the LOC file and the warrant record, ultimately reported that the records were not available, leading the Court to draw an adverse inference against the legality of the LOC and the foundation asserted for the arrest. On the disputed question of the non-bailable warrant, the Court held that while a certified copy is admissible under Section 77 of the Evidence Act, its evidentiary value is rebuttable and does not by itself prove that a warrant was actually issued when its very existence is challenged and the original record is not forthcoming; weighing the RTI reply, the Magistrate’s show-cause notice, and the enquiry report together, the preponderance of the record was that no valid non-bailable warrant justified the arrest.
On the anticipatory bail issue, the Court held that Section 438(3) CrPC requires that where a person protected by anticipatory bail is arrested without warrant, he must be released on bail, and where the Magistrate decides that a warrant should issue, the Magistrate must issue a bailable warrant in conformity with the order of anticipatory bail; a non-bailable warrant cannot be pressed into service to defeat the protection the sub-section confers.
On the passport, the Court held that an Investigating Officer has no independent power to seize and retain a passport in the course of investigating an offence under Section 498A IPC, since Section 10(3) of the Passports Act, 1967 confers the power to impound a passport only upon the passport authority on recorded reasons, and the fact that the Magistrate ordered release of the passport on Aug 26, 2014 confirmed that the seizure was without authority of law.
On the safeguards under Sections 41 and 41-A CrPC, the Court held that the offence under Section 498A IPC falls squarely within Section 41(1)(b), that no contemporaneous writing recording satisfaction under Section 41(1)(b)(ii) was produced, that no notice under Section 41-A was issued (which the Court treated as a clear breach of a mandatory safeguard going to the root of personal liberty), and that the test in paragraph 7.3 of Arnesh Kumar was not satisfied.
On the assault allegation, the Court held that the specific charge of custodial assault causing injury could not be recorded as established in writ jurisdiction because the discharge summary recorded the alleged assault only as patient history and did not disclose any external injuries or treatment for assault-related injury, requiring a trial for a categorical finding. However, the Court held that the illegal detention and harassment of Petitioner No.1 stood on a different footing, since proceedings against him had already been dropped in the charge sheet, there was no lawful basis to treat him as an accused or take him to a police station, and the MLC and hospitalisation established the subjecting of Petitioner No.1 to the coercive presence and process of the police when he was no longer an accused.
On abuse of power, the Court held that Respondent No.3’s conduct amounted to an abuse and excess of statutory power, but that a positive finding of collusion with Respondent Nos.1 and 2 could not be recorded on the material before it, since no submissions were advanced on their behalf and beyond the allegation there was no independent material establishing collusion. On the effect of departmental action, the Court held that a departmental enquiry and a claim for public law compensation operate in two different fields, that the disciplinary proceeding is between the State and its officer while the compensation claim is between the citizen and the State to vindicate fundamental rights.
Briefly, the dispute arises out of a matrimonial conflict between Petitioner No.2 (Naveen Kumar J), an IT consultant based in the United Kingdom, and Respondent No.1 (Smt. R Shruthi), his wife. Their marriage was solemnised on Dec 04, 2011 as an arranged marriage, after which the couple shifted to England. According to the petitioners, no dowry was demanded, the couple lived harmoniously abroad, jointly acquired a residential house, and Petitioner No.2 even sponsored Respondent No.1’s parents to England and purchased a house in their joint names.
The relationship allegedly soured after Respondent No.1 returned to India in November 2013 and was influenced by certain relatives, leading to demands for luxury articles, money, and transfer of business interests. On Mar 10, 2014, Respondent No.1 lodged a complaint at Vidyaranyapura Police Station alleging offences under Section 498A IPC, Sections 3 and 4 of the Dowry Prohibition Act, and Sections 323, 504 and 506 IPC against Petitioner Nos.1 and 2 and several family members, leading to registration of crime. Petitioner No.2 and his brother obtained anticipatory bail on June 10, 2014 from the Sessions Court.
The charge sheet ultimately came to be filed only against Petitioner No.2 and his mother, with proceedings against the remaining accused being dropped. The petitioners then alleged a series of illegal acts by Respondent No.3 (the Inspector of Police, Vidyaranyapura Police Station): on July 18, 2014, Respondent No.3 allegedly came in plain clothes with police personnel in private vehicles to the residence of Petitioner No.1’s daughter (situated outside his territorial jurisdiction), forcibly took Petitioner No.1 and the mother of Petitioner No.2 to Malleshwaram Police Station, manhandled Petitioner No.1 (a senior citizen with cardiac ailments), causing him to collapse and require hospitalisation at K.C. General Hospital and Fortis Hospital, where an MLC was registered. On Aug 16, 2014, when Petitioner No.2 voluntarily arrived at Kempegowda International Airport, he was detained by the Bureau of Immigration on the basis of a Look Out Circular (LOC) and handed over to Respondent No.3, who, despite the production of the anticipatory bail order, neither released him nor honoured the bail order, instead taking him to Vidyaranyapura Police Station and allegedly coercing him to settle the matrimonial dispute.
The jurisdictional Magistrate noticed the warrantless arrest despite the subsistence of anticipatory bail and issued a show-cause notice to Respondent No.3. Respondent No.3 also seized Petitioner No.2’s passport, which was ordered to be released by the Magistrate on Aug 26, 2014. Petitioner No.2’s challenge to the LOC was disposed of as infructuous after the respondents informed the Court that the LOC had been withdrawn, without any adjudication on its legality. RTI replies and copies from the criminal court indicated that no non-bailable warrant had ever been issued against Petitioner No.2. A departmental enquiry report recorded that Respondent No.3 had arrested Petitioner No.2 without a warrant and without any non-bailable warrant, despite the subsistence of the anticipatory bail order, but resulted only in the minor punishment of withholding one increment. The underlying criminal proceedings were quashed, and the order was affirmed by the Supreme Court; proceedings under the Hindu Marriage Act, the Protection of Women from Domestic Violence Act, 2005, and Section 125 CrPC were also dismissed.
