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Judgment
These Writ Petitions have been filed for a mandamus directing the 1st respondent to withdraw the look out circular issued against the petitioners in LOC Nos.2016413411 and 2016413416 respectively dated Nil and restraining the respondents 1 to 3 from in any way preventing them for travelling abroad and detaining and arresting them in any immigration (entry or exit) point in India and interfering with her freedom of movement within or without India.
The petitioner in W.P.(MD) No.22861 of 2017 is the husband and the petitioner in W.P.(MD) No.22862 of 2017 is the wife.
It is stated that the petitioner/husband in W.P.(MD) No.22861 of 2017 is a permanent resident of Singapore and that he was also a resident of Madurai. It is stated that the petitioner/husband, after completing studies, went to Singapore in the year 1998 for employment purpose and residing there till date with his family members. It is not in dispute that the petitioner/husband got married with the 4th respondent on 11.09.2011 and due to some misunderstanding, both of them are living separately. The fourth respondent has lodged a complaint alleging dowry harassment against her husband/petitioner in W.P.(MD) No.22861/2017 with the 2nd respondent police and a case has been registered in Crime No. 18/2014 under Sections 498(A), 406 and 109 IPC and Section 4 of Dowry Prohibition Act, where the petitioners in both the writ petitions are shown as accused 4 and 5. After filing of the chargesheet, the case is now pending in C.C.No.631/2014 before the Judicial Magistrate/Additional Mahila Court, Madurai.
The petitioners state that when their family members came to India on 17.11.2017 and that when they landed in Bangalore Airport to their shock and surprise, they were given intimation about the Look Out Circular that were issued against them. It is further stated that at that time, they were arrested and produced before the Judicial Magistrate/Additional Mahila Court, Madurai, wherein, the petitioners were remanded to judicial custody and confined to Central Prison, Madurai, till they were released on bail by the I Additional District and Sessions Judge, Madurai, on 29.11.2017. The petitioners further state that the 4th respondent has also filed a petition under Section 12 of Protection of Women from Domestic Violence Act, 2015.
It is now admitted before this Court that in both the cases, the petitioners have obtained an order of interim stay of further proceedings. It is in the above stated circumstances, the petitioners have approached this Court for the relief as stated above.
The learned counsel for the petitioners relied upon several judgments of this Court as well as the Hon''ble Supreme Court reiterating the principles and directions issued by the Court in similar instances and submitted that the petitioners have already given an undertaking before the lower Court that they will appear before the Court concerned as and when they are required to be present. The learned counsel also states that their passports were directed to be returned to them on such undertaking and subject to further directions to execute sureties for a sum of Rs.1,00,000/-. The learned counsel also undertakes before this Court that the petitioners will file an affidavit of undertaking guaranteeing their appearance as and when their presence is required by the order of the concerned Court, where the criminal proceedings as well as the petition filed under Domestic Violence Act are pending.
The learned counsel for the 4th respondent has pointed out that the criminal case was pending for more than three years, solely on account of the non cooperation of the petitioners and that non bailable warrants were issued against them as early as on 30.01.2015 and that therefore, the petitioners were arrested, when they landed in India. Having regard to the conduct of the petitioners, the learned counsel for the 4th respondent submitted that they are not entitled to the relief prayed for in these writ petitions. Apart from that, the learned counsel for the 4th respondent relied upon the judgment of Bombay High Court, in the case of Deepak Dwarkasingh Chhabria v. Union of India reported in AIR 1997 Bombay 181.
Having regard to the fact that the petitioner/husband is permanently employed in abroad, this Court is of the view that the right guaranteed under Article 21 of the Constitution of India will be ensured to the petitioners only if the petitioners are granted the relief as prayed for.
Since the petitioners have given an undertaking to appear before the Judicial Magistrate concerned as and when their presence is required by an order of the Court, this Court is unable to refuse to grant the relief to the petitioners.
This Court earlier on several occasions followed the judgment of the Hon''ble Supreme Court in Crl.A.No.1265 of 2017 in the case of Rajesh Sharma and others v. State of Uttarpradesh, wherein it has been specifically held that personal appearance of the family members and particularly outstation members may not be required and the trial Court ought to grant exemption for their personal appearance or permit their appearance by video conferencing without adversely affecting the progress of the trial.
Since this is a dispute between husband and wife, this Court is inclined to issue the following directions: (i) The petitioners shall file an affidavit of undertaking to appear before the Judicial Magistrate as and when they specifically directed by an order of the Court by the Judicial Magistrate to appear ;
(ii) On filing such affidavit of undertaking by the petitioners that they will appear as and when their presence is required by the learned Judicial Magistrate either in the criminal case or Domestic Violence Act proceedings, the petitioners are permitted to travel abroad ; and
(iii) The respondents 1 to 3 are restrained from preventing the petitioners from travelling abroad in any immigration entry or exit point in India or interfering with their freedom of movement.
These writ petitions are disposed of with the above directions. No costs. Consequently connected Miscellaneous Petitions are closed.