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TMI Blog2018 (7) TMI 2000X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court that the conditions precedent for issuance of the impugned LOC were absent, and the impugned LOC is liable to set aside on that ground, we need not go into the questions of whether an LOC could have been issued without statutory sanction, or whether the respondents concerned had jurisdiction to issue the impugned LOC. However, in our view, the Look Out Circular was issued in hot haste when the conditions precedent for issuance of such Circular did not exist. The impugned Look Out Circular is, thus, liable to be set aside. The impugned LOC is set aside and quashed - petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... f the issued and outstanding equity share capital of INX News. 7. The application of the company seeking FIPB approval was received and acknowledged by the Department of Economic Affairs, FIPB Unit, Ministry of Finance, through its letter dated 15.3.2007. Thereafter, by a Memorandum dated 16.3.2007, the FIPB Unit forwarded the proposal of INX Media to various departments of the Government of India for their comments. 8. The FIPB at its meeting held on 18.5.2007 recommended the proposal of INX Media for consideration and approval of the then Finance Minister. However, the FIPB did not approve the down stream investment by INX Media in INX News. The recommendation of FIPB was approved by the then Finance Minister, Shri.P.Chidambaram, who happens to be the father of the petitioner. 9. The FIPB Unit issued a press release dated 30.5.2007 indicating the details of proposals approved in the FIPB meeting. The quantum of FDI (Foreign Direct Investment)/NRI (Non-Resident Indian) inflow against M/s.INX Media was shown as ₹ 4.62 crores. The approval was intimated vide a letter dated 31.5.2007. 10. In the FIR, it is alleged that in contravention of the terms of the approval of FIPB c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance and approved by the then Finance Minister. Concurrence to a proposed investment when investment had been made without the approval of the Finance Ministry, smacks of malafides and dishonest intention on the part of the officials of the Ministry, who did not take any punitive action against INX Media, but covered up the illegality by seeking an application from INX News and granting permission to INX News. The permission gave an erroneous impression that INX News was yet to receive the foreign investment. 15. It is stated in the FIR that, pursuant to the criminal conspiracy with INX Group and the intermediaries, senior officials of the Ministry of Finance not only granted illegal approval, but also misinformed (sic misled) the investigation by the Investigation Wing of the Income Tax in this regard. 16. As per the FIR, information discloses that in consideration for the services rendered by the petitioner to the INX Group, through CMS, payments were received against invoice raised on INX Media by ASC. As per source information, the reason for getting the invoice raised in the name of ASC for services rendered by CMS was to conceal the identity of the petitioner, since the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same, but only with the question of validity and/or maintainability of the impugned Look Out Circular. 22. By an order dated 10.8.2017, a learned Single Bench of this Court passed an interim order of stay of the impugned LOC dated 16.6.2017 and gave directions for filing of counter-affidavits. 23. The CBI filed an application for Special Leave to Appeal, being S.L.P.Nos.20699 20700 of 2017, in the Supreme Court challenging the aforesaid interim order. 24. By an order dated 14.8.2017, the Hon'ble Supreme Court stayed the interim order passed by the learned Single Judge. Thereafter, diverse orders were passed by the Supreme Court from time to time and ultimately, by an order dated 31.1.2018, the Special Leave Petitions were finally disposed of, inter alia, directing the Division Bench of this Court, presided over by the Chief Justice, to decide these writ petitions. All the issues raised in these two writ petitions, including the issue of territorial jurisdiction of this Court to entertain these writ petitions, have been kept open for this Court to adjudicate. 25. On 7.2.2018, this Division Bench of this Court directed that the matter be fixed for hearing on 12.2.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was deliberately evading arrest or not appearing in the trial court despite non-bailable warrants (NBWs) and other coercive measures and there was a likelihood of the accused leaving the country to evade trial/arrest. The principles as laid down in the aforesaid judgment have been accepted and adopted by the Ministry of Home Affairs by the Office Memorandum referred to above. 30. On a perusal of the said memorandum dated 27.10.2010, it is patently clear that LOC is a coercive measure to make a person surrender to the Investigating Agency or Court of law. The LOC has apparently been issued prematurely, in haste. 31. It is a matter of record that the FIR has been lodged on 15.5.2017 in respect of alleged offences which took place in the year 2007-2008. Notice under Section 41-A(1) read with Section 41(1)(b) of the Criminal Procedure Code was issued to the petitioner on 15.6.2017 calling upon the petitioner to appear on 29.6.2017. 32. Mr.Gopal Subramanium argued that the request for issuance of LOC was made even before notice under Section 41-A(1) read with Section 41(1)(b) of the Criminal Procedure Code was issued to the petitioner. 33. Be that as it may, on the face of the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Notice under Section 41A of the Code of Criminal Procedure was a step anterior to a step under Section 41 of the Code of Criminal Procedure [vide Arnesh Kumar v. State of Bihar, reported in (2014) 8 SCC 273]; (iv) When first notice issued on 16.6.2017 and made returnable on 29.6.2017 had been replaced by a further notice dated 4.7.2017, the concerned authorities had, by necessary implication, accepted the contention of the petitioner that he was traveling abroad and that he would attend to the notice immediately upon his return. 40. Mr.Subramanium emphatically reiterated that the condition precedent for issuance of a look out circular was attempt to evade arrest. The petitioner was not in any manner seeking to evade the trial, since the case is at the stage of investigation and a final report or charge sheet has not been filed. In the absence of filing of a charge sheet or a final report, it could not be assumed that the petitioner was going to evade trial. 41. As argued by Mr.Gopal Subramanium, the issuance of a look out circular is amenable to judicial review under Article 226 of the Constitution of India. The issuance of look out circular is not equivalent to a decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Branch, Economic Offences Wing IV, CGO Complex, Lodhi Road, New Delhi-110003, a part of cause of action has certainly arisen within the jurisdiction of this Court. LOC is a coercive measure to make a person surrender to an investigating agency or a Court of law. The LOC would be enforced against the petitioner within the jurisdiction of this Court. The impugned LOC will affect his fundamental rights and in particular his right to equality, personal liberty, free movement, privacy, in and around Chennai and Tamil Nadu, within the jurisdiction of this Court. It cannot be said that this Court lacks territorial jurisdiction to entertain the writ petitions. 48. Learned Additional Solicitor General submitted that even assuming that notices were received within the jurisdiction of this Court, that would not in itself confer jurisdiction on this Court since the Court might refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. In support of his submission, the learned Additional Solicitor General cited Kusum Ingots and Alloys Limited v. Union of India and another, reported in (2004) 6 SCC 254. 49. In Kusum Ingots and Alloys Limited v. Union of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only after the Supreme Court directed him to appear. 53. Learned Additional Solicitor General further submitted that while issuing notice under Section 41A, the investigating authority has inherent power to take necessary steps to see that the accused in the case does not leave this jurisdiction and co-operate in the enquiry. It is a part of the duty of the second respondent to ensure that the accused appeared before him for investigation. 54. The learned Additional Solicitor General submitted that in order to ensure that an accused appeared before him for investigation, the Investigating Officer could seek the assistance of government authorities who were bound to render necessary assistance to prevent the escape of an accused whom a police officer is authorised to arrest. The power, according to the learned Additional Solicitor General is derived from Chapter IV-B and particularly, Section 37 of the Criminal Procedure Code. 55. The learned Additional Solicitor General argued that if the contention that the Investigating Officer had no power to prevent the escape of an accused were to be accepted, the very purpose of Section 41A and Section 37 of the Criminal Procedure Code wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficial Memorandum No.25022/20/98-FIV, dated 27.12.2000 of the Government of India, Ministry of Home Affairs (Foreigners Division). 60. Look Out Circulars are issued by the Ministry of Home Affairs of the Government of India as well as certain other authorities such as Ministry of External Affairs; the Customs Department; the Income Tax Department; the Directorate of Revenue Intelligence; Central Bureau of Investigation; Interpol; Regional Passport Officers and Police authorities in various States. 61. In a Writ Petition (Civil) No.10180 of 2009 (Shri.Vikram Sharma v. Union of India and others), the Delhi High Court passed an order dated 27.7.2010 observing that a request for issuance of an Look Out Circular had to come from either the Central or the State Government and that too only in the prescribed form signed by the officers of certain rank. While Criminal Courts dealing with cases of criminal law enforcement could issue directions which might result in the issuance of Look Out Circular, there was no power vested either under the Code of Criminal Procedure or the Passports Actor under Circulars of the Ministry of Home Affairs vesting power on statutory bodies like the Nation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any person (a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely: (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police officer is satisfied that such arrest is necessary (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having so concerned, shall be arrested except under a warrant or order of a Magistrate. 41A. Notice of appearance before police officer. (1) The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the request for issuance of the Look Out Circular had been made. 71. As observed above, the FIR against the petitioner was lodged on 15.05.2017. Notice was issued on 15.6.2017 calling upon the petitioner to appear before the Station House Officer/Investigation Officer on 29.6.2017. On the very next day i.e., 16.6.2017, the impugned Look Out Circular was issued. As on the date of issuance of the Look Out Circular, there could have been no reason to suppose that the petitioner would not appear before the Station House Officer/Investigation Officer. 72. On behalf of the respondents, it has been contended that the petitioner did not appear on 29.6.2017 as directed, but only appeared pursuant to the directions of the Supreme Court. However, as argued by Mr.Subramanium, the very fact that after issuance of the first notice dated 16.06.2017, which was returnable on 29.06.2017, a further notice was issued on 04.07.2017 granting the petitioner time till 21.07.2017, shows that there was no immediate apprehension of his evading investigation, at least on 04.07.2017. There was, thus, no justification for issuance of the impugned LOC on 16.06.2017, the validity whereof has expired, in any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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