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TMI Blog2019 (11) TMI 1779X X X X Extracts X X X X X X X X Extracts X X X X ..... by Mr. K. Srinivasa Murthy ORDER This writ petition seeks a writ of declaration to declare that the Look Out Circular issued by the first respondent, in purported exercise of its powers under Section 10-B of the Passports Act, 1967, is an arbitrary exercise of power, abuse of authority, vitiated by mala fides, ultra vires and is without jurisdiction, and to consequently direct the first respondent to recall the Look Out Circular issued by the first respondent. 2 The facts in issue lie in a narrow compass. The nub is, whether this Court ought to quash the Look Out Circular and permit the petitioner to go abroad. 3 Concededly, the petitioner is not an Indian citizen, but, a Seychelles national, who claims himself to be an Ambassador at large of the Republic of Seychelles and as such, is a holder of diplomatic passport issued by the Republic of Seychelles. He entered India via Chennai International Airport on 06.08.2018 and at the Immigration counter, he was informed that a Look Out Circular has been issued against him and ergo, he cannot leave India. Hence, he addressed a representation dated 01.09.2018 to the C.B.I. seeking to withdraw the Look Out Circular and accordingly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.2018 and travelled to several countries. Thus, the present Look Out Circular has been issued subsequently by the Bureau of Immigration on the request of the C.B.I. and the Enforcement Directorate. 9 What then is the case that has been registered against the petitioner by the C.B.I. and the Enforcement Directorate? The answer to the question lies in the counter affidavit dated 22.07.2019 filed by the C.B.I., wherein, the entire details of the case against the petitioner have been set out threadbare. A precis of the allegations reads thus: 9.1 The petitioner is one of the Promoters-Directors of Siva Group of Companies. One M/s. Win Wind Oy (WWO), Finland, in which, S. Saravanan, son of the petitioner, is one of the Directors, was sanctioned a sum of Rs.322.40 crores by IDBI Bank and the loan became a Non Performing Asset (NPA). 9.2 Knowing full well about the poor financial plight of the Siva Group of Companies, the top officials of the IDBI Bank, in collusion with the petitioner, had abused their official position and extended further credit facilities to a tune of Rs.523 crores in favour of Axcel Sunshine Ltd., a company based in the British Virgin Islands and an associate co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court or to the complainant. Accused No.7 shall furnish his detailed residential address and mobile number to the complainant." (emphasis supplied) 13 The first submission of Mr. Satish Parasaran, learned Senior Counsel is that the petitioner is a diplomatic passport holder and therefore, he is immune from any prosecution in the light of the Vienna Convention on Diplomatic Relations, 1961 (for brevity "the Vienna Convention"). This submission cannot be countenanced, in view of Article 31 therein, which reads as under: "Article 31 1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; b) An action relating to succession in which the diplomatic agent is involved as executor, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled that the issuance and withdrawal of a Look Out Circular is guided by the Office Memorandum dated 27.10.2010 issued by the Government of India, accepting the suggestions made by the Delhi High Court in Sumer Singh Salkan vs. Assistant Director and Others W.P. (Crl.) No.1315 of 2008 decided on 11.08.2010. This Office Memorandum has been amended from time to time. 16 Mr. Satish Parasaran contended that paragraph 7(a) of the said Office Memorandum dated 27.10.2010 stipulates the conditions under which a Look Out Circular can be issued and that the case at hand does not pass muster the said conditions. To appreciate this contention, it may be apposite to extract paragraph 7(a) of the Office Memorandum dated 27.10.2010: "7. The High Court has answered these questions in its judgment dated 11.08.2010 which are reproduced below for guidance of all concerned agencies: "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/a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing amendment is hereby issued: Amendment- Read as: "In exceptional cases, LOCs can be issued even in such cases, as would not be covered by the guidelines above, whereby departure of a person from India may be declined at the request of any of the authorities mentioned in clause (b) of the above referred OM, if it appears to such authority based on inputs received that the departure of such person is detrimental to the sovereignty or security or integrity of India or that the same is detrimental to the bilateral relations with any country or to the strategic and / or economic interests of India or if such person is allowed to leave, he may potentially indulge in an act of terrorism or offences against the State and / or that such departure ought not to be permitted in the larger public interest at any given point in time." (emphasis supplied) Instead of: In exceptional cases, LOCs can be issued without complete parameters and / or case details against CI suspects, terrorists, antinational elements, etc. in larger national interest." It is, thus, manifestly clear that the amended paragraph 8(j) of the Office Memorandum enables the issuance of a Look Out Circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein was an Indian with roots in India, the Division Bench of this Court held that the Look Out Circular was issued hurriedly and on that ground, quashed the same. In this case, the petitioner is not an Indian citizen, but, a citizen of Seychelles and is also a diplomat of that State, as claimed by him. It is true that he had appeared before the C.B.I. and the Enforcement Directorate whenever he was summoned, despite which, both the said agencies had not chosen to arrest him though they have the power. Be it noted that the decision to arrest or not to arrest, falls within the exclusive domain of the investigating agency and there can be no interference by the Court. Had the petitioner been arrested, then, his very movement within India would have been in jeopardy. 22 As alluded to above, permitting the petitioner to go abroad while a serious investigation is pending by the C.B.I. and Enforcement Directorate would be against public interest is one of the criteria enumerated in the amended paragraph 8(j) (supra). In a similar circumstance, where, a foreigner was involved, a learned single Judge of this Court, in N.Saravanapavan vs. The Chief Immigration Officer, Bureau of Immigr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ......... Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself." 26 To permit the petitioner to leave India by lifting the Look Out Circular just because he has, so far, been co-operating with the Investigating Agencies, is tantamount to locking the stable after the horse has bolted. It will defy all credulity if this Court were to believe that the petitioner will return to India obediently and submit himself to legal process in strict adherence to his under ..... 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