TMI Blog2021 (10) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... itution includes the right to travel abroad and that no person can be deprived of that right except according to procedure established by law. The mere prescription of some kind of procedure cannot even meet the mandate of Article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary. The Look Out Circular against the passport issued at the instance of the respondent nos. 3 and 4 dated 12.3.2021 is hereby quashed, however, the petitioner in usual course would cooperate the respondent authorities if so required through video conferencing as the petitioner is non-est at the present in the respondent company no. 6 and if the respondent authority nos. 3 and 4 have any further investigation to be made, they are at liberty to seek assistance of Resolution Professional because the respondent no. 6 company is controlled by them - Application allowed. - W.P.A. 15407 of 2021 - - - Dated:- 7-10-2021 - Shivakant Prasad, J. Mr. Sudipta Moitra Mr. Abhra Mukherjee Ms. Sutapa Sanyal Mr. B. P. Chakraborty Mr. Debrup Bhattacharya Ms. Saptamita Pramanick Mr. Suryanil Das For the Petitioner Mr. S. Bhattacharjee Mr. Avinash K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il granted to the petitioner on the returnable date. The date on which the order was passed was not the assigned date in the case record rather case record was put up by way of put up petition on behalf of Senior Intelligence Officer, Directorate General of G.S.T Intelligence, Kolakta Zonal Unit, Kolkata for cancellation of the AI Bail awarded to the petitioner for noncompliance of the direction of the Court. Such put up petition ought to have been well-intimated to the petitioner otherwise the application for cancellation of AI bail should have been considered on the date fixed by the learned Court. The Learned Magistrate by the order dated 30.09.2021 in connection with the said Airport G.D. No.615 dated 16.04.2021 even issued warrant of arrest. This Court does not find justification for issuance of warrant of arrest, particularly in case of GD Entry case under Section 41 of Cr.P.C as no specific case was made out before the Court as per his own finding and observation made in his earlier order while enlarging the petitioner on interim bail. Be that as it may, the petitioner s case is that due to turbulent faced by way of financial crunch, the accounts of the respondent no.6 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Magistrate without due notice to the petitioner. In this context, it is pointed out by Mr. Moitra learned senior counsel for the petitioner that it was because of the prevailing Pandemic situation due to second wave of Covid 10 that the petitioner could not attend. It is the contention of the petitioner that the petitioner is facing the family issue as his daughter is expecting mother who resides with her husband at Dubai and his daughter is having serious health complication for which he had rushed to Dubai and after the medical condition of his daughter was improved a bit, he returned to Kolkata on 16.04.2021 when he was apprehended and learnt about the look out circular issued against him. As a matter of fact, the said summons issued to the petitioner are not covered by Section 31 of the IBC, the judgment and order passed by the National Company Law Tribunal, Kolkata Bench dated 21.10.2019 in the said referred case in IB No. 1237/KB/2018 and it is contended in unequivocal term that the documents and other things sought for by the respondent authorities would only be available with the respondent no. 6 company and not with the petitioner. The respondent no. 6 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the instant petition had intimated the respondent no. 4 that the company was facing IBC proceedings before the learned NCLT, Kolkata Bench and that consequently the Board of the company has been suspended along with CMD and other Directors are no longer having any operational and administrative powers. So the petitioner requested the respondent authorities to intimate the company directly for any information pertaining to the present case and to allow the company s representative to co-ordinate the submission of debt directly to the respondent no. 4. Further it has already been brought to the attention of the respondent authorities that the employees in the knowledge being the employees in the finance/taxation department of the respondent no. 6, company have left the company due to non-payment of salaries. It is pointed out that the summon was issued by senior Intelligence Officer, MZU, under CBIC-DIN-202012DWW0000000276E, inter alia, directing the petitioner to appear before DGGI, Kolkata Zonal Unit, 14/2, Kareya road, 4th Floor, Kolkata 700017 in connection with the ongoing proceedings but there was nothing to submit further from the end of the petitioner as the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red non-est in law and would not be payable by the Company. Any proceedings which were kept in abeyance in view of process under the Code or otherwise should not be revived post the order of the Adjudicating Authority. Thus, it is argued on behalf of the petitioner by Mr. Moitra that the petitioner has always cooperated in the enquiry under Section 70 proceeded against the petitioner. Now, so far as the status of Look Out Circular is concerned Mr. Moitra has relied on a decision in case of Sumer Singh Salkan vs. Assistant Directors and Ors. reported in (2018) 7 AD (Delhi) 342 being the decision dated 11.8.2010 passed in W.P. (CRL) No. 1315 of 2008 wherein the following questions were raised for their answers dismissed in paragraph 11 thus:- 11. Look Out Circular has also been issued against the petitioner as the petitioner is an accused before the Court of M.M. and he has not appeared before the Court of M.M. If the petitioner given an undertaking before the Court for his appearance on a particular date, through his counsel, the Look Out Circular issued against the petitioner shall be withdrawn within 24 hours of giving undertaking by the petitioner. The questions rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for issuance of such Look Out Circular is to be made and that has been examined by the Hon ble High Court, Delhi in a decision case of Vikram Singh vs. Union of India vide decision dated 5th May, 2020 passed in writ petition (CRI) Diary No.10935/2020 where the preliminary question before the Court was whether a statutory body like the National Commission of Women can issue LOC notice; that answer was negated, but the fact remains that the recourse to issue Look Out Circular are undertaken by Investigating Agency in cognizable offence under IPC and under Penal Laws where the accused is deliberately evading arrest or not appearing in the Trial Court and has a flight risk despite non-bailable warrant and other coercive measures. So, the Look Out Circular is issued for the purpose of getting into investigation for the surrender of the accused before the Court. Thus, the LOC is a coercive measure to make a person surrender before a Court or Investigating Agency. Such Circulars are issued as per the office Memorandum of Ministry of Home Affairs even for the purpose of watching arrival and departure of wanted person for the purpose of impounding Passport and can also be issued at the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Moitra, as in the present case, there is no specific case made out against the petitioner by the respondent authorities for the purpose of investigation and in the course of investigation petitioner cooperated in response to several summons issued by the respondent nos. 3 and 4, and they were made to know about the decision taken by the N.C.L.T. that whole of the control of the respondent no.6, company was under liquidation and under the management of Resolution Professional. Representing respondent no. 6, Mr. Srijib Chakraborty, learned Advocate submits that the respondent nos. 3 and 4, G.S.T. Authority have already raised their claim before the Resolution Professional. In this regard, this Court finds that there was no specific case registered against the petitioner for undertaking investigation, despite that the petitioner has cooperated with the respondent nos. 3 and 4 by making reply to the summons pointing out that the respondent no.6 company was under liquidation and under complete control of Resolution Professional appointed by the NCLT by virtue of its judgment. On behalf of the Union of India, Mr. S. Bhattacharya, learned counsel appearing for respondent nos. 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orne in mind that India is a signatory and part of the Universal Declaration of Human Rights, 1948 and under the provision of Article 13, it guarantees that everyone has the right to freedom of movement and residence within the borders of each State and everyone has right to leave any country including his own, and to return to his country. So, having regard to the principles laid thereunder and bearing in mind the settle principle of law on the fundamental rights of a citizen enshrined in part 3 of Constitution of India as discussed by Hon ble Supreme court of India in the above cited decisions and further considering that Look Out Notice is issued by executive authorities in arbitrary manner, under the Scheme of Office Memorandum of the Ministry of Home Affairs, it is imperative on that part of the Parliament to legislate and in act complete legislation on the subject of Look Out Circular. For the reasons stated in the forgoing paragraphs, the Look Out Circular being No. 2021405597 against the passport No. Z526636 issued at the instance of the respondent nos. 3 and 4 dated 12.3.2021 is hereby quashed, however, the petitioner in usual course would cooperate the respondent autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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