TMI Blog2018 (7) TMI 2000X X X X Extracts X X X X X X X X Extracts X X X X ..... go into the questions of whether an LOC could have been issued without statutory sanction, or whether the respondents concerned had jurisdiction to issue the impugned LOC. However, in our view, the Look Out Circular was issued in hot haste when the conditions precedent for issuance of such Circular did not exist. The impugned Look Out Circular is, thus, liable to be set aside. The impugned LOC is set aside and quashed - petition allowed. - W.P.Nos.21305 and 20798 of 2017 and WMP Nos.22241, 22242, 21645 and 21646 of 2017 - - - Dated:- 23-7-2018 - Ms.Indira Banerjee And Mr. Abdul Quddhose, JJ. For Petitioner: Mr.Gopal Subramanium Senior Advocate for M/s.C.Uma For Respondents: Mr.V.Venkatesan, Mr.G.Rajagopalan, Mr.K.Srinivasan For The Respondent. COMMON ORDER Ms. Indira Banerjee, These writ petitions are directed against a Look Out Circular being reference No.1/SIC (DMC)/LOC/2017 5812, dated 16.6.2017, issued in respect of the petitioner by the Bureau of Immigration under the Ministry of Home Affairs of Government of India. 2. On 15.5.2017, the Central Bureau of Investigation (hereinafter referred to as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to the provisions of applicable laws, to make a down stream financial investment to the extent of 26% of the issued and outstanding equity share capital of INX News. 7. The application of the company seeking FIPB approval was received and acknowledged by the Department of Economic Affairs, FIPB Unit, Ministry of Finance, through its letter dated 15.3.2007. Thereafter, by a Memorandum dated 16.3.2007, the FIPB Unit forwarded the proposal of INX Media to various departments of the Government of India for their comments. 8. The FIPB at its meeting held on 18.5.2007 recommended the proposal of INX Media for consideration and approval of the then Finance Minister. However, the FIPB did not approve the down stream investment by INX Media in INX News. The recommendation of FIPB was approved by the then Finance Minister, Shri.P.Chidambaram, who happens to be the father of the petitioner. 9. The FIPB Unit issued a press release dated 30.5.2007 indicating the details of proposals approved in the FIPB meeting. The quantum of FDI (Foreign Direct Investment)/NRI (Non-Resident Indian) inflow against M/s.INX Media was shown as ₹ 4.62 crores. The approval was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for down stream investment in pursuance of a criminal conspiracy. Such deceitful and fallacious proposals were favourably considered by the officials of the Ministry of Finance and approved by the then Finance Minister. Concurrence to a proposed investment when investment had been made without the approval of the Finance Ministry, smacks of malafides and dishonest intention on the part of the officials of the Ministry, who did not take any punitive action against INX Media, but covered up the illegality by seeking an application from INX News and granting permission to INX News. The permission gave an erroneous impression that INX News was yet to receive the foreign investment. 15. It is stated in the FIR that, pursuant to the criminal conspiracy with INX Group and the intermediaries, senior officials of the Ministry of Finance not only granted illegal approval, but also misinformed (sic misled) the investigation by the Investigation Wing of the Income Tax in this regard. 16. As per the FIR, information discloses that in consideration for the services rendered by the petitioner to the INX Group, through CMS, payments were received against invoice raised on INX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Look out Circular (LOC) was issued. 21. In these writ petitions, the Court is not concerned with the veracity of the allegations in the aforesaid FIR, or with the legality of the criminal case started on the basis of the same, but only with the question of validity and/or maintainability of the impugned Look Out Circular. 22. By an order dated 10.8.2017, a learned Single Bench of this Court passed an interim order of stay of the impugned LOC dated 16.6.2017 and gave directions for filing of counter-affidavits. 23. The CBI filed an application for Special Leave to Appeal, being S.L.P.Nos.20699 20700 of 2017, in the Supreme Court challenging the aforesaid interim order. 24. By an order dated 14.8.2017, the Hon'ble Supreme Court stayed the interim order passed by the learned Single Judge. Thereafter, diverse orders were passed by the Supreme Court from time to time and ultimately, by an order dated 31.1.2018, the Special Leave Petitions were finally disposed of, inter alia, directing the Division Bench of this Court, presided over by the Chief Justice, to decide these writ petitions. All the issues raised in these two writ petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Director and others) and Crl.Ref.1/2006 (Court on its Own Motion Re: State v. Gurnek Singh, etc.), the High Court of Delhi held that recourse to LOC could be taken by an Investigating Agency in case of cognizable offences under the Indian Penal Code or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite non-bailable warrants (NBWs) and other coercive measures and there was a likelihood of the accused leaving the country to evade trial/arrest. The principles as laid down in the aforesaid judgment have been accepted and adopted by the Ministry of Home Affairs by the Office Memorandum referred to above. 30. On a perusal of the said memorandum dated 27.10.2010, it is patently clear that LOC is a coercive measure to make a person surrender to the Investigating Agency or Court of law. The LOC has apparently been issued prematurely, in haste. 31. It is a matter of record that the FIR has been lodged on 15.5.2017 in respect of alleged offences which took place in the year 2007-2008. Notice under Section 41-A(1) read with Section 41(1)(b) of the Criminal Procedure Code was issued to the petitioner on 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular, non consideration of the following facts: (i)CBI had failed to disclose to the competent authority that it had issued notice under Section 41A of the Code of Criminal Procedure; (ii) The concerned authorities proceeded on the erroneous belief that the Look Out Circular could be issued simultaneously with notice under Section 41A of the Code of Criminal Procedure; (iii) Notice under Section 41A of the Code of Criminal Procedure was a step anterior to a step under Section 41 of the Code of Criminal Procedure [vide Arnesh Kumar v. State of Bihar, reported in (2014) 8 SCC 273]; (iv) When first notice issued on 16.6.2017 and made returnable on 29.6.2017 had been replaced by a further notice dated 4.7.2017, the concerned authorities had, by necessary implication, accepted the contention of the petitioner that he was traveling abroad and that he would attend to the notice immediately upon his return. 40. Mr.Subramanium emphatically reiterated that the condition precedent for issuance of a look out circular was attempt to evade arrest. The petitioner was not in any manner seeking to evade the trial, since the case is at the stage of invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e place of occurrence of the offence is shown amongst other places to be Delhi, Mumbai and Chennai, within the jurisdiction of this Court. 46. Notice under Section 41A(1) read with 41(1)(b) of the Criminal Procedure Code has been addressed to and served on the petitioner at 16, Pycrofts Garden Road, Thousand Lights, Chennai 600 006, within the jurisdiction of this Court. 47. Though the impugned Look Out Circular appears to have been issued to the Head of Branch, Economic Offences Wing IV, CGO Complex, Lodhi Road, New Delhi-110003, a part of cause of action has certainly arisen within the jurisdiction of this Court. LOC is a coercive measure to make a person surrender to an investigating agency or a Court of law. The LOC would be enforced against the petitioner within the jurisdiction of this Court. The impugned LOC will affect his fundamental rights and in particular his right to equality, personal liberty, free movement, privacy, in and around Chennai and Tamil Nadu, within the jurisdiction of this Court. It cannot be said that this Court lacks territorial jurisdiction to entertain the writ petitions. 48. Learned Additional Solicitor General submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Additional Solicitor General also submitted that Section 41 of the Code of Criminal Procedure confers power on the police to arrest without warrant. The second respondent, who could have arrested the petitioner and other Directors of the Companies under Section 41 of the Code of Criminal Procedure, had registered the FIR on 15.05.2017. The second respondent issued a notice under Section 41A directing them to appear before him, but none actually appeared. Mr.Karti P.Chidambaram appeared before the authority only after the Supreme Court directed him to appear. 53. Learned Additional Solicitor General further submitted that while issuing notice under Section 41A, the investigating authority has inherent power to take necessary steps to see that the accused in the case does not leave this jurisdiction and co-operate in the enquiry. It is a part of the duty of the second respondent to ensure that the accused appeared before him for investigation. 54. The learned Additional Solicitor General submitted that in order to ensure that an accused appeared before him for investigation, the Investigating Officer could seek the assistance of government authorities wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of the case. Such executive decision is not subject to judicial review. 58. The learned Additional Solicitor General concluded his submissions with the argument that the principles enunciated in Maneka Gandhi, supra, would not apply to this case because in distinction to this case, there was no criminal case pending against Mrs.Maneka Gandhi. The passport authorities had, on their own, initiated action. 59. The issuance of Look Out Circulars is governed by the Executive instructions as contained in the communication No.25022/13/78-F1, dated 05.9.1979 and the Official Memorandum No.25022/20/98-FIV, dated 27.12.2000 of the Government of India, Ministry of Home Affairs (Foreigners Division). 60. Look Out Circulars are issued by the Ministry of Home Affairs of the Government of India as well as certain other authorities such as Ministry of External Affairs; the Customs Department; the Income Tax Department; the Directorate of Revenue Intelligence; Central Bureau of Investigation; Interpol; Regional Passport Officers and Police authorities in various States. 61. In a Writ Petition (Civil) No.10180 of 2009 (Shri.Vikram Sharma v. Union of India and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recedent for issuance of an LOC is the existence of reasons, which should be disclosed in the request for issuance of an LOC. 65. Pursuant to the directions of this Court, the respondents have filed their counter affidavit. The counter affidavit does not disclose the reasons for making a request for issuance of an LOC. The impugned LOC is liable to be set aside on that ground alone. 66. Sections 41, 41-A and 41-B of the Code of Criminal Procedure, 1973 are set out hereinafter for convenience: 41. When police may arrest without warrant. (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person (a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence 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, if the following conditions are satisfied, namely: (i) the police officer has reason to believe on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or (i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate. 41A. Notice of appearance before police officer. (1) The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to appear before a Magistrate if so required. 69. The conditions precedent for arrest under Section 41 of the Code of Criminal Procedure without warrant as set forth in sub-sections (a) to (i) of Section 41(1) were wholly absent atleast as on the date of issuance of the Look Out Circular. In any case, there was no attempt to arrest the petitioner without warrant atleast as on 15.06.2017 when notice under Section 41-A was issued to the petitioner to appear before the Investigating officer on 29.6.2017. A notice under Section 41A of the Criminal Procedure Code is issued directing the accused to appear before the Investigating Officer, when arrest of a person is not required, as observed by the Supreme Court in Arnesh Kumar, supra. 70. The legality and/or validity of a Look Out Circular has to be adjudged having regard to the circumstances prevailing on the date on which the request for issuance of the Look Out Circular had been made. 71. As observed above, the FIR against the petitioner was lodged on 15.05.2017. Notice was issued on 15.6.2017 calling upon the petitioner to appear before the Station House Officer/Investigation Officer on 29.6.2017. On the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterfere with an LOC. The question is whether the writ Court should exercise its discretionary jurisdiction to interfere with the impugned LOC. 75. In view of the finding of this Court that the conditions precedent for issuance of the impugned LOC were absent, and the impugned LOC is liable to set aside on that ground, we need not go into the questions of whether an LOC could have been issued without statutory sanction, or whether the respondents concerned had jurisdiction to issue the impugned LOC. However, in our view, the Look Out Circular was issued in hot haste when the conditions precedent for issuance of such Circular did not exist. The impugned Look Out Circular is, thus, liable to be set aside. 76. For the reasons discussed above, the impugned LOC is set aside and quashed. It is made clear that the order of this Court setting aside the impugned LOC will not impact the criminal proceedings initiated pursuant to the FIR, referred to above, or any other proceedings initiated against the petitioner. With the above observations, both the writ petitions are disposed of. No costs. Consequently, WMP.Nos.22241, 22242, 21645 and 21646 of 2017 are closed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
