TMI Blog2022 (3) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... rst available opportunity and as such the plea of Mr. Handoo that the respondents have not taken any objection on the maintainability of the petition in their counter affidavit is unmerited. This Court is of the view that the plea of Mr. Hossain on the maintainability of the petition needs to accepted and the writ petition and connected applications are closed. - W.P.(C) 8084/2020 & CM APPL. 11855/2022 - - - Dated:- 22-3-2022 - HON'BLE MR. JUSTICE V. KAMESWAR RAO Petitioner Through: Mr. R.K. Handoo, Mr. Rajat Manchanda, Mr. Aditya Chaudhary, Mr. Garvit Solanki, Advs. Respondents Through: Mr. Zoheb Hossain, Spl. Counsel for ED with Mr. Vivek Gurnani, Adv. Mr. Amit Mahajan, Adv. V. KAMESWAR RAO, J. (ORAL) 1. By this order, I shall decide the objection taken by Mr. Zoheb Hossain, Special Counsel for the respondent No. 1 appearing with Mr. Amit Mahajan (who appears for respondents) that the present petition shall not be maintainable inasmuch as the petitioner must approach the concerned Special Court where the Complaint Case No. 75/2019 filed by the respondent No.1, of which cognizance has been taken by the Special Court by issuing summons to the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e certified copy of the order for the purpose of ensuring compliance. No physical copy of the order shall be insisted upon by any authority/entity or litigant. W.P.(C) 8084/2020 7. Learned Counsel for the respondents submits that in view of a prosecution complaint having been filed against the petitioner in respect of the offence for which the impugned LOC was issued, cognizance whereof has already been taken by the learned trial Court, the present writ petition would no longer be maintainable and if aggrieved the petitioner ought to approach the learned trial Court. 8. Even though learned counsel for the petitioner vehemently disputes this plea, the aspect regarding maintainability of the writ petition will be considered on the next date. 3. Some of the relevant facts as noted from the record and also highlighted by the counsel for the parties are, in 2017 the petitioner was arrested at Chennai Airport on the basis of a Look-out Circular ( LOC , for short). She was granted bail by this Court on December 15, 2017 and was arraigned as an accused in the third supplementary complaint filed on September 13, 2017 in ECIR No. ECIR/15/ DLZO/2014 dated July 03, 2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court, when an alternate efficacious remedy is available under a statute / legislation / enactment providing remedy before a different forum. But no statute can curtail such right of a citizen to approach the Supreme Court or this Court. He has relied upon the judgment of the Supreme Court in the case of L. Chandra Kumar v. Union of India Ors., 1997 (3) SCC 261, wherein the Apex Court has set aside the provision providing for Tribunals to perform the functions as a substitute for High Courts. According to him, the plea of Mr. Hossain is now beyond the pale of controversy, as can be inferred by the judgments of the Supreme Court in the cases of State of U.P. v. Muhammad Noor, AIR 1958 SC 86, Magadh Sugar and Energy Ltd. v. State of Bihar and ors. (2021) SCC Online SC 801 and Whirlpool Corporation v. Registered Trademarks, 1998 8 SCC 1. The law is now well crystallized and the scope of alternate remedy would not lie where the writ petition is filed for:- i. Violation of the fundamental rights protected under Part III of the Constitution; ii. There has been violation of principles of natural justice; iii. The order or proceedings are wholly without jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case, no such ground exists for issuance of LOC. It is not a case where the petitioner has been avoiding and not participating in the investigation. It is also not a case where the person is a flight risk, as the petitioner, having been granted permission to travel abroad, has been travelling and returning back to India. At no point of time has the petitioner violated any of the conditions imposed on her to travel abroad. 11. He stated that even the judgment in Sumer Singh Salkan (supra) contemplates that an LOC can be withdrawn by the officer concerned, which unfortunately has not been done. He also stated that the word pending in Answer (C) in paragraph (11) gets its colour from Answer (A) of the judgment when the Trial Court has issued NBWs or other coercive measures against the persons accused. NBWs are issued by a Court in a charge sheet or complaint after cognizance is taken and there is an intentional default of summons or bailable warrants for appearance. It is in this context that the LOC can also be rescinded by the Trial Court where the case is pending in respect of such person wherein the Court has issued NBWs and other coercive process. Mere filing of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nability of the petition in reply to the CM No. 47740/2021 filed by the petitioner wherein reference has been made about the filing of a second supplementary complaint on November 22, 2021 before the Special Court, PMLA, Rouse Avenue Courts, New Delhi and in view of the judgment in Sumer Singh Salkan (supra), wherein a Coordinate Bench of this Court has, while answering the questions raised in the reference made to the Court, was of the view that an LOC can be rescinded by the Trial Court where the case is pending. In other words, since the subject matter of the writ petition is concerning LOC and a complaint having been filed before the Special Court, the petitioner must be relegated to the said Court even with respect to the LOC. The submission of Mr. Hossain is that the prosecution complaint under second proviso of Section 45 of the PMLA arraying the petitioner as an accused was filed on November 22, 2021 and as such the alternate efficacious remedy being available to the petitioner, she should approach the Special Court where the case with regard to the complaint No.75/2019 in ECIR/07/DZCR/2019 is pending i.e., the Court of Sh. Sanjay Garg, Ld. Special Judge, PMLA, Rouse Avenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mr. Hossain would submit that jurisdiction of this Court under Article 226 of the Constitution of India for entertaining the petition cannot be disputed but this Court has a rule of self imposed restraint, inasmuch as it would not entertain a writ petition if an alternate efficacious remedy is available to aggrieved persons. Further, he stated that the plea that there is no statutory enforced alternative remedy which would make the petitioner approach the concerned Court is also unmerited for the reason that the plea of alternate remedy shall also be available in common law and in equity. In this regard he has relied upon the judgment of the Calcutta High Court in Nani Lal Roy v. Satyendra Nath Roy, AIR 1952 Cal 1. This submission of Mr. Hossain is primarily by relying on the judgment of Sumer Singh Salkan (supra) to contend that the jurisdiction of the concerned Court in affirming or cancelling LOC commensurate with its jurisdiction to cancel or affirm NBWs. There is no specific provision for cancellation of LOCs, as is provided in Section 70(2) Cr.P.C. for cancellation of warrants by the Court and therefore for this reason as well, the jurisdiction to cancel an LOC has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Mr. Hossain, the attempt of Mr. Handoo is to enlarge the relief in the petition. Reliefs which have not been prayed for, cannot be granted even by this Court under Article 226 of Constitution of India, in view of settled position of law in Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi, (2010) 1 SCC 234. Further, he stated that Mr. Handoo has not highlighted any prejudice that would be caused to the petitioner if she is relegated to the Special Court before whom the prosecution complaint is pending with regard to the case in question qua which present LOC has been issued. 26. In fact, Mr. Hossain has stated that it is appropriate for the petitioner to approach the Special Court, when she had without any hesitation approached the other Special Court seeking permission to travel abroad wherein the prosecution complaint relating to the AugustaWestland Helicopter scam is pending i.e., another criminal case wherein she has been arrayed as an accused relating to ECIR/15/DLZO/2014. In fact, the petitioner through Mr. Handoo has been relying upon the orders passed by that Court every time she wishes to travel abroad but for the reasons best known to her, refuses to approach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint Case No.75/2019 in ECIR/07/DZCR/2019 which is pending before the Court of Sh. Sanjay Garg, Special Judge, PMLA, Rouse Avenue Courts, and the petitioner should seek permission for travelling abroad from the latter Court i.e., the Court of Special Judge, PMLA, Rouse Avenue Courts, New Delhi. It is seen that the respondents have taken objection on the maintainability of the petition at the first available opportunity and as such the plea of Mr. Handoo that the respondents have not taken any objection on the maintainability of the petition in their counter affidavit is unmerited. This I say so, for the reason that the objection is primarily based on the filing of the complaint before the Special Court by the respondent No.1. The same having been filed on November 22, 2021, the respondents in their reply to CM No. 47740/2021 filed on December 28, 2021 have taken the objection. 29. The submissions made by Mr. Handoo that the power of this Court under Article 226 of the Constitution of India cannot be taken away on the ground that alternate remedy is available to the petitioner to approach the Special Court where the complaint filed by the respondent No.1 is pending; an administ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with law, as expeditiously as possible (since the LOC cannot be issued periodically for a indefinite period and issuance of the same cannot hang on like a Damocle's Sword on a Person's Head). As and when the investigation is completed and charge sheet is filed, it is open to the Petitioner/A2 either to seek the aid of Authority/Officer (based on the request made by the concerned authority), who ordered the issuance of LOC or the trial Court where a case is pending or having jurisdiction over the concerned Police Station relating to the cancellation of LOC, (provided it is in force and alive), by filing necessary petition in accordance with law. Also that, the LOC can be withdrawn by the authorities concerned, who issued the same. Indeed, the Criminal Court's jurisdiction in cancelling LOC or affirming the same is quite in tune with the jurisdiction of cancellation of Non Bailable Warrant. Also, it is open to the Petitioner/A2 to seek permission of the trial Court by projecting necessary petition for proceeding abroad setting out necessary details/particulars, like places to which he intends visiting/travelling, the addresses of the places where he would be st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Police for the purpose of withdrawal of LOC, this writ petition is disposed of permitting the petitioner to move the Court of Special Judicial Magistrate of First Class, Prohibition Excise, Guntur, where C.C. No. 570 of 2014 is pending and to make appropriate application seeking withdrawal of LOC. The petitioner is also at liberty to set out the reasons for making the said request including that he has already surrendered and has been abiding with the directions issued from time to time by the Court. If such an application is made by the petitioner, the learned Special Judicial Magistrate of First Class shall consider the same in accordance with law and pass appropriate orders expeditiously. No order as to costs. The miscellaneous petitions, if any, pending in this writ petition shall stand closed. 34. That apart, Mr. Handoo has not disputed that the petitioner is within her rights to appear before the Special Court even before the summoned date of April 30, 2022. The plea of Mr. Handoo that the Special Court cannot consider withdrawal of LOC is not appealing for the simple reason, as held by this Court in Sumer Singh Salkan (supra) that issuance of LOC is akin to i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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