TMI Blog2020 (9) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... against the appellant and it is in this context that the Look Out Circular came to be challenged by the appellant. The writ petition, therefore, was clearly intended to seek an order to enable the appellant to move out of the country by getting the bar of Look Out Circular lifted, the obvious consequence and likelihood whereof is avoiding of criminal proceedings that have been initiated under the Code of Criminal Procedure. Reliance can be placed in the case of Ram Kishan Fauji v. State of Haryana and others [ 2017 (3) TMI 1780 - SUPREME COURT] where it was held that The irresistible conclusion is that the Letters Patent Appeal was not maintainable before the Division Bench and, consequently, the order passed therein is wholly unsustainable and, accordingly, it is set aside. The Look Out Circular that came to be the subject matter of challenge before the learned Singe Judge did arise out of the various criminal proceedings that were pending against the appellant. The prayer, therefore, in the writ petition was clearly for a declaration that the Look Out Circular in the purported exercise of powers under Section 10B of the Passport Act, 1967 is arbitrary and an abuse of au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Clause 15 of the Madras High Court Letters Patent? 2. The appellant is not an Indian citizen and is a Seychelles national. He is a holder of a diplomatic passport issued by the Republic of Seychelles. When he entered India on 6.8.2018, he was informed about the Look Out Circular, against which he sent a representation, and the said Look Out Circular was withdrawn. However, in the criminal cases that were initiated against him, he was called upon to appear on certain dates before the Enquiry Officer. The cases registered against him were by the Enforcement Directorate under the Prevention of Money Laundering Act (PMLA). 3. The second time he was informed of a Look Out Circular having been issued against him, against which the appellant made a representation, but this time the Look Out Circular was not withdrawn and, therefore, he preferred the writ petition giving rise to this appeal. 4. The learned Single Judge recorded that the appellant is one of the Promoters-Directors of Siva Group of Companies and his son, S.Saravanan, had obtained a loan of Rs.322.40 Crores from IDBI Bank, which was declared to be a Non Performing Asset (NPA). S.Saravanan was in the capacity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court, in order to consider the question of maintainability of the appeal. 9. Mr.Parasaran has urged that the action for issuance of a Look Out Circular amounts to curtailing the liberty and freedom of movement of the appellant and the same cannot be pressed against the appellant, as it violates the diplomatic privileges conferred upon the appellant. 10. The question, therefore, is of the nature of the proceedings, namely the writ petition giving rise to this appeal, are whether in the nature of criminal proceedings and the jurisdiction exercised by the learned Single Judge is a criminal jurisdiction or not. 11. The Look Out Circular being governed by the Office Memorandum issued by the Ministry of Home Affairs, it is appropriate to extract the said circular dated 27.10.2010 as below: No.25076/31/2010.Imm. Government of India Ministry of Home Affairs (Foreigners Division) Jaisalmer House, 26 Mansingh Road New Delhi, the 27 October, 2010 OFFICE MEMORANDUM Subject: Issuance of Look Out Circulars (LOC) in respect of Indian citizens and foreigners Under the existing practice, the issuance of LOCs is governed by this Ministry's letter num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Officer concerned after expiry of one year period.' 4. The Hon'ble High Court of Delhi, in Writ Petition (Civil) No. 10180 of 2009 (Shri Vikram Sharma vs. Union of India and Ors.), considered the question whether a request for the issuance of an LOC could be made by the National Commission for Women (NCW). While disposing of the said Writ Petition, the High Court, in its order dated 26.7.2010, observed that 'a request for the issuance of an LOC could not have emanated from the NCW. It had to come from either the Central or the State Government and that too only in the prescribed form and then again only by the officers of a certain rank. In this context, while criminal courts dealing with cases of criminal law enforcement can issue directions, which may result in the issuance of an LOC, there is no such power vested either under the Cr.P.C. or the Passports Act or under the MHA's circular, in statutory bodies like NCW. Being granted the powers of civil court for a limited purpose does not vest the NCW with the powers of a criminal court and it has no authority as of today to make a request for the issuance of an LOC..' 5. The Court further observed, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: a) Recourse to LOC can be taken by investigating agency in cognizable offences under IPC or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrested. b) The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs, giving details reasons for seeking LOC. The competent officer alone shall give directions for opening LOC by passing an order in this respect. c) The person against whom LOC is issued must join investigation by appearing before I.O. 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 coercive measure to make a person surre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w up action. e) Care must be taken by the originating agency to ensure that complete identifying particulars of the person, in respect of whom the LOC is to be opened, are indicated in the Proforma mentioned above. It should be noted that an LOC cannot be opened unless a minimum of three identifying parameters, as given in the enclosed Proforma, apart from sex and nationality, are available. However, LOC can also be issued if name and passport particulars of the person concerned are available. It is is the responsibility of the originator to constantly review the LOC requests and proactively provide additional parameters to minimise harassment to genuine passengers. f) The legal liability of the action taken by the immigration authorities in pursuance of the LOC rests with the originating agency. g) Recourse to LOC is to be taken 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment referred to by the learned Single Judge, such a circular can be issued in larger public interest. The genesis of the Look Out Circular, therefore, is the pendency of criminal cases against the appellant and it is in this context that the Look Out Circular came to be challenged by the appellant. The writ petition, therefore, was clearly intended to seek an order to enable the appellant to move out of the country by getting the bar of Look Out Circular lifted, the obvious consequence and likelihood whereof is avoiding of criminal proceedings that have been initiated under the Code of Criminal Procedure. 14. Having examined the judgments that had been perused by us earlier, the following observations from paragraphs (51) to (55) of the judgment of the Apex Court in the case of Ram Kishan Fauji v. State of Haryana and others, (2017) 5 SCC 533, are relevant for the present controversy: 51. ..... Being of this view, the Division Bench ruled that as Clause 15 of the Letters Patent expressly bars an appeal against the order passed by a Single Judge of the High Court in exercise of criminal jurisdiction, LPAs are not maintainable and, accordingly, dismissed the same. 52. Fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts in criminal law domain, then it can be said that the Single Judge was exercising his criminal jurisdiction while dealing with such a petition filed under Article 226 of the Constitution. 54. After so stating, the Full Bench referred to the Constitution Bench decision in CIT v. Ishwarlal Bhagwandas, (1966) 1 SCR 190 : AIR 1965 SC 1818 and distinguished the Full Bench decision of the Andhra High Court in Gangaram Kandaram v. Sunder Chikha Amin, 2000 SCC OnLine AP 119 : (2000) 2 An LT 448 and noted the decision of the Division Bench of the Gujarat High Court in Sanjeev Rajendrabhai Bhatt v. State of Gujarat, (2000) 1 Guj LR 206 and came to hold as follows: 32. The test, thus, is whether criminal proceedings are pending or not and the petition under Article 226 of the Constitution is preferred concerning those criminal proceedings which could result in conviction and order of sentence. 33. When viewed from this angle, it is clear that if the FIR is not quashed, it may lead to filing of challan by the investigating agency, framing of charge and can result in conviction of order of sentence. Writ of this nature filed under Article 226 of the Constitution seeking quashing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable, a Letters Patent Appeal would be maintainable against the judgment of the learned Single Judge, as this is a pure question of the civil liberty of a person. 16. We have carefully perused the judgment and we find that the Apex Court came to the conclusion that the judgments of the Gujarat and Delhi High Court have correctly laid down the law on the subject. Taking a clue from the said observations, we find that the Look Out Circular that came to be the subject matter of challenge before the learned Singe Judge did arise out of the various criminal proceedings that were pending against the appellant. The prayer, therefore, in the writ petition was clearly for a declaration that the Look Out Circular in the purported exercise of powers under Section 10B of the Passport Act, 1967 is arbitrary and an abuse of authority, vitiated by mala fides, and hence, should be declared to be without jurisdiction. The sequence of facts, and the consequence towards which the writ petition is aimed at, clearly relate to criminal proceedings that have led to the issuance of the circular. This may involve the guarantee of liberty to a person under Article 21 of the Constitution, but the gene ..... X X X X Extracts X X X X X X X X Extracts X X X X
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