TMI Blog2021 (4) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... ly called for questioning only once by Respondent No. 2-CBI in connection with case of Kingfisher Airlines, travel restrictions could not have been imposed upon him. All that Respondent No. 2-CBI could insist upon, under clause (h) of the office memorandum dated 27.10.2010, was that it be informed about arrival/departure of the petitioner in connection with his trips abroad - It is not even the case of the respondents that if the petitioner is permitted to leave the country it would be detrimental to the sovereignty, security or integrity of India or bilateral relations with any country or to the strategic/economic interests of India. It is also not the case of the respondents that any amounts are to be recovered from the petitioner for which the Chairman of the SBI or any other public sector bank has made a request for issuance of LOC. There can be no doubt that the petitioner needs to co-operate with Respondent No. 2-CBI in that regard. But, it cannot be said that Respondent No. 2 was entitled to impose travel restrictions to prevent the petitioner from travelling abroad. The Petitioner shall be entitled to travel abroad for his personal and professional obligations, subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2018, he appeared before Respondent no. 2-CBI and answered their questions on the said date and thereafter, he was never called for further questioning. 5] The Petitioner further states that even after the said date i.e. 29.03.2018, he travelled abroad on business and personal visits and every time he returned back to India. According to the Petitioner, he is not an accused in the aforesaid case concerning Kingfisher Airlines and he is also not an accused in any other criminal case. On this basis, it is submitted that action of the immigration officials at the Mumbai Airport of detaining the Petitioner on 29/09/2018 was wholly illegal and if it was at the behest of the CBI, there was no communication or explanation forthcoming from CBI as to why the Petitioner was sought to be restrained from travelling abroad. Since the Petitioner was not aware about any lookout circular (LOC) issued against him at the behest of the CBI, he had no alternative but to air his grievance in accordance with law. 6) It is in this backdrop that the Petitioner initially fled an Application, being Misc. Application No. 2093 of 2019, before the Court of Special Judge for CBI, Greater Bombay at Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to frequently travel abroad and he also visited his daughter abroad. According to the Petitioner, it was surprising that when he was not restrained from travelling even after 29/03/2018 on a number of occasions, as to why suddenly on 29/09/2018, he was detained at the Mumbai International Airport by the immigration officials on the basis of directions issued by CBI. The Petitioner was still not aware about LOC, if any, issued against him and the basis of the same. In fact, the Petitioner gave details of his travel from March 2018 to September 2018 to support his aforesaid contentions. Details of his travel were placed before this Court in the form of a chart. 10] Learned senior counsel appearing for the Petitioner submitted that relevant circulars/notifications/office memoranda pertaining to issuance of LOCs issued from time to time by Respondent no. 3-UOI demonstrated that no such LOC could have been issued in respect of the Petitioner, since he is not arraigned as an accused in any criminal case. Learned senior counsel further relied upon Judgments of Hon ble Supreme Court, this Court and other High Courts to support his contention that LOC could not have been issued in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not fee from the country, particularly when it was suspected that he was involved in high value economic offences. 13] The principal contention raised on behalf of the petitioner is that when he is not arraigned as an accused in any FIR, much less FIR pertaining to offences registered against the owner of Kingfisher Airlines, there was no basis for Respondent Nos. 2 and 3 to impose travel restrictions on him. In fact, the petitioner was not even aware about the exact date on which LOC was issued against him and it was only when affidavit-in-reply was filed on behalf of Respondent No. 2, that it became clear that LOC dated 4/09/2018 was issued on the basis of which the petitioner was detained at the Mumbai international airport on 29/09/2018. According to Respondent No. 2, the said LOC was issued and kept alive against the petitioner for justifiable and proper reasons. 14] It is relevant that the petitioner was called for questioning on 29/03/2018 before Respondent No. 2-CBI at its Delhi office and the petitioner did attend such summons. According to the petitioner, he answered the queries put to him, but the Respondent No. 2 has taken a stand that such answers were not sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03/2018 to attend the office of Respondent No. 2- CBI for questioning. Thereafter, till date the petitioner has not been called even once in connection with the said case or any other case of financial irregularities. As noted above, the Petitioner continued to travel in and out of India till September 2018 i.e. about six months after being questioned by Respondent No. 2- CBI. There is nothing placed on record by Respondent Nos. 2 and 3 regarding what further material they required from the petitioner, which necessitated imposition of travel restrictions on him by issuance of LOC dated 4/09/2018. 17] In this context, it would be relevant to refer to Judgments relied by the learned senior counsel appearing for the petitioner. In the case of Parvez Noordin Lokhandwalla [cited supra] the Hon ble Supreme Court considered the case of an appellant who was arraigned as an accused for offence punishable under sections 420, 467, 468, 469, 470,471 474 of the Indian Penal Code. After considering the material on record, the Hon'ble Supreme Court held that in the facts and circumstances of the said case, lodging of FIR ought not to create a bar on the travel of the Appellant for specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing before 1.0. or should surrender before the court concerned or should satisfy the court that LOC was wrongly issued against him. He may also approach the officer who ordered issuance of LOC explain that LOC was wrongly issued against him. 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. D. LOC is a coercive measure to make a person surrender to the investigating agency or Court of law. The subordinate courts jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs. 12. The petitions stand disposed of in above terms . 20] The said Judgment was relied upon by a Division Bench of this Court in the case of Afzal Jaffer Khan [cited supra]. In the said case, the Division Bench of this Court held that a lookout notice issued after a period of 6 years from the date of registration of crime deserved to be quashed. The Petitioner therein was permitted to travel abroad. It is relevant that the petitioner therein was arraigned as an accused in FIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year. It was further provided that such LOC could be extended before expiry of the period of one year. Thereafter, office memorandum dated 27/10/2010 was issued, which referred to the aforesaid Judgment of Delhi High Court in the case of Sumer Singh Salkan [cited supra]. The questions posed by Delhi High Court and answers rendered in that context were quoted in the said office memorandum dated 27/10/2010. Thereafter, a procedure was elaborately stated for issuance of LOCs. Relevant portion providing guidelines for issuance of such LOCs reads as follows: 8. In accordance with the order dated 26.7.2010 of the High Court of Delhi, the matter has been discussed with the concerned agencies and the following guidelines are hereby laid down regarding issuance of LOCs in respect of Indian citizens and foreigners: a) The request for opening an LOC would be made by the agency to Deputy Director, Bureau of Immigration (Bol), East Block-VII, R.K. Puram, New Delhi - 66 (Telefax: 011- 2619244) in the Proforma enclosed. b) The request for opening of LOC must invariably be issued with the approval of an officer not below the rank of i. Deputy Secretary to the Government of India, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in cognizable offences under IPC or other penal laws. The details in column IV in the enclosed Proforma regarding reason for opening LOC must invariably be provided without which the subject of an LOC will not be arrested/detained. h) In cases where there is no cognizable offence under IPC or other penal laws, the LOC subject cannot be detained/ arrested or prevented from leaving the country. The originating agency can only request that they be informed about the arrival/departure of the subject in such cases. i) The LOC will be valid for a period of one year from the date of issue and name of the subject shall be automatically removed from the LOC thereafter unless the concerned agency requests for its renewal within a period of one year. With effect from 1.1.2011, all LOCs with more than one year validity shall be deemed to have lapsed unless the agencies concerned specifcally request Bol for continuation of the names in the LOC. However, this provision for automatic deletion after one year shall not be applicable in following cases: a) Ban-entry LOCs issued for watching arrival of wanted persons (which have a specifc duration); b) loss of passport LOCs (which ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed to leave, he may potentially indulge in an act of terrorism or offences against the State and/or that such departure ought not be permitted in the larger public interest at any given point in time . Instead of: In exceptional cases, LOCs can be issued without complete parameters and/or case details against CI suspects, terrorists, anti-national elements, etc in larger national interest . 26] Thereafter, office memorandum dated 12/10/2018 was issued, which further provided for issuance of LOCs and it stated as follows: The undersigned is directed to refer to this Ministry's letter No. OM 25016/31/2010-Imm dated 27.10.2010 and subsequent OM No. 25016/10/2017-Imm(pt) dated 05.12.2017, 19.07.2018 19.09.2018 on the above mentioned subject and to say that request of the Department of Financial Services, Ministry of Finance to include Chairman (State Bank of India)/Managing Directors and Chief Executive Officers (MDs and CEOs) of all other Public Sector Banks in the list of officers who can make a request for opening of Look Out Circulars (LOCs) has been considered in this Ministry. 2. It has accordingly been decided, with the approval of the Competent Authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
