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TMI Blog2022 (9) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... actually been adjudicated by a court of competent jurisdiction but also when the issues that were actually raised but in fact not decided. It is correct that as per Status Report filed by the respondents no. 4 5/CBI a case was registered vide RC 13/2016/EOW Mumbai on 19.09.2016 at CBI/EOW/Mumbai Branch for commission of offences under section 120-B IPC read with section 420 IPC and section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 against Hasan Ali Khan, unknown public servants, and others and said case is still under investigation by GBI/AG-VI/SIT, New Delhi but the petitioner has not been implicated as an accused in said FIR/RC and during investigation the role of the petitioner was not clearly established and the petitioner was not made an accused by CBI in any FIR registered at Mumbai. Whenever a suit/writ is instituted before the court, the initial issue is to be decided whether the court has jurisdiction to deal with the matter. If the court does not have jurisdiction then it will be recognized as lack of jurisdiction and irregular exercise of jurisdiction. If the court does not have jurisdiction to decide the case then such decision would be regarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no 501, 5th floor, Queens Diamond Apartment, M.P Marg, Opera House, Mumbai 400004. The petitioner is a senior citizen and requires constant medical attention due to various ailments. 2.1 The Directorate of Enforcement, Mumbai Zonal Office i.e., the respondent no.3 had registered an Enforcement Case Information Report i.e., ECIR/02/MZO/2007 on 08.01.2007 against Hassan Ali Khan and Kashinath Tapuriah under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as PMLA ). The respondent no. 3 subsequently registered a case bearing Complaint No 01/2011 and the Special Court, Mumbai vide order dated 06.05.2011 issued process against Hassan Ali Khan and Kashinath Tapuriah for allegedly stashing of funds to the tune of 8 US billion dollars. 2.2 The petitioner in the month of February, 2016 was served with the summons issued by the respondent no.3 and was directed to appear and participate in the investigation initiated in pursuance of Complaint bearing no 01/2011. The officials of the respondent no. 3 on 09.02.2016 has raided the place where the petitioner was residing i.e., flat no 501, 5th floor, Queens Diamond Apartment, M.P Marg, Opera House, Mumbai 400004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be filing supplementary complaint against the petitioner. The respondent no. 3 on 21.12.2016 handed over confidential report to the court and informed to the court that the respondent no. 4 on 19.09.2016 had registered a FIR under section 120-B read with section 420 of Indian Penal Code, 1860 (hereinafter referred as IPC) and section 13(2) and Section 13(l)(e) of Prevention of Corruption Act, 1988. The High Court of Bombay dismissed Writ Petition bearing No. 2332 of 2016 after perusal of the confidential report filed by the respondent no. 3. 2.9 The respondent no. 2 issued LOC prior to registration of FIR by the respondent no. 4. The respondent no. 3 subsequently admitted that the petitioner was not arrayed as an accused in said FIR registered by the respondent no. 4. The petitioner was not provided with copy of FIR dated 19.09.2016 and LOC even despite invoking provisions of Right to Information Act, 2005. The petitioner came to know that the court of Special Judge (CBI), Greater Bombay, Mumbai was concerned court and as such moved Crl. Misc. Application No. 677/2018 for supplying the certified copy of the FIR alleged to have been registered against the petitioner on 19.09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the Respondent(s) and its officers thereby directing the Respondents to withdraw/cancel/ quash/discontinue/recall the Look Out Circular issued in the name of the Petitioner and to allow the Petitioner to return to his home in the United Kingdom. II. any other reliefs as the nature and circumstances of the case may be granted. 3. The respondent no. 3 filed Counter Affidavit sworn by Sitaram Shivram Narkar, Assistant Director, Directorate of Enforcement, Zonal Office-II, Mumbai. 3.1 It is stated in Counter Affidavit that the respondent no. 3 registered a Enforcement Case Information Report (hereinafter referred to as ECIR ) vide ECIR/02/MZO/2007 dated 08.01.2007 under the Prevention of Money Laundering Act, 2002 (PMLA) against Hassan Ali Khan and others on basis of certain information and documents received from the Income Tax Department and statement of Hassan Ali Khan and others. The respondent no. 3 filed the Prosecution Complaints bearing no. 01/2011 dated 06.05.2011 titled as Samir Bajaj V Hassan Ali Khan another and 24/2018 dated 17.07.2018 titled as Directorate of Enforcement V Hassan Ali Khan Others before the Special Court (PMLA), Mumbai for launder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t escape from India and would not return back to join the investigation. 3.5 One of the co-accused namely Vishwanathan Venugopal along with Hassan Ali Khan in ECIR dated 08.01.2007 had filed a Writ Petition (Civil) No. 11771 of 2018 titled as Vishwanathan Venugopal V. Bureau of Immigration and Others which was disposed of vide Order dated 11.03.2019 by this court after observing that permission to travel was granted to him by the Special Judge (PMLA), Mumbai and as such the Special Judge (PMLA), Mumbai is competent to allow the petitioner to travel depending upon the facts and circumstances of the case. 3.6 The respondent no. 3 in reply on merits denied allegations of the petitioner. It is submitted that the statements dated 11.02.2016, 12.02.2016, 15.02.2016, 24.02.2016, 25.02.2016, 26.02.2016, 11.05.2016 of the petitioner were recorded in pursuance of summons issued to the petitioner which were voluntary in nature. The petitioner had claimed that he had met Hassan Ali Khan and others for the purpose of the recovery of his pending amount and as such was advised to lodge a complaint with the police for cheating and misappropriation against Hassan Ali Khan. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in United Kingdom does not match with his profile as he was in contact with numerous high ranking Swiss Bankers. The Petitioner was in constant touch with Mr. Remo Maurer, Bank Official of Credit Swiss Bank and Swiss Consulate in Mumbai and these facts were admitted by the petitioner in his statement recorded under Section 50 of PMLA. The petitioner also stated in statement dated 11.05.2016 that he was introduced to Hassan Ali Khan by Mr. Remo Maurer, Credit Suisse as a Foreign Banker. 5.2 The petitioner in statement dated 12.02.2016 admitted that he had given watches worth US $50,000 to Hassan Ali Khan at instance of Mr. Remo Maurer and these facts reflect that the petitioner was deeply involved with the bankers of Switzerland. The petitioner through Swiss Consulate tried to sell some paintings illegally acquired by Hassan Ali Khan and also introduced the Swiss Consulate General to Hassan Ali Khan. The petitioner during investigation admitted that he had visited the residence of Hassan Ali Khan at Pune and had met with Philip Anandraj, another associate of Hassan Ali Khan. 5.3 The petitioner was asked by Mr. Remo Maurer to financially help Hassan All Khan and as such arrang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presence of the petitioner is required during trial. Hassan Ali Khan has got international linkages and evidences are required to be collected from foreign jurisdictions through Letter of Rogatory (LR) from different countries. 6. The respondents no. 4 5 primarily mentioned facts in Status Report which are mentioned in Counter Affidavit filed on behalf of the respondent no. 3. The respondents no. 4 5 in Status Report filed through Sanjeev Sharma, Inspector of Police, SIT/AVVI/CBI/New Delhi wherein stated that a case was registered on basis of written complaint dated 09/09/2016 made by G.C. Parihar, Assistant Director, Enforcement Directorate, Mumbai Zonal Office, Mumbai on 19.09.2016 at CBI/EOW/Mumbai Branch vide RC 13/2016/EOW Mumbai for commission of offences under section 120-B Indian Penal Code, 1860 (hereinafter referred as IPC) read with section 420 IPC and section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 against Hasan Ali Khan, unknown public servants, and others and said case is still under investigation by GBI/AG-VI/SIT, New Delhi. It is also stated that the petitioner has not been arraigned as an accused in FIR/RC but his role in the commission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and no notice was received by him. The petitioner was summoned on 03.02.2022 and directed to join investigation at the Mumbai Zonal Office on 11.02.2022 and he was asked to furnish details/documents. The petitioner appeared before the Zonal Office, Mumbai on 11.02.2022 but did not submit any requisite documents mentioned in the summons. The statement of the petitioner was recorded on 11.02.2022 under section 50 of PMLA, 2002 wherein he undertook to submit requisite documents within two days but did not submit the requisite documents till date to the ED office. The petitioner is not furnishing crucial information required for investigation and under in his exclusive possession. The petitioner is still required for the investigation. 8. Lock Out circular (LOC) does not have a legal definition and issue to check whether a travelling person is wanted by any law enforcement agency in the country. The purpose of Look Out Circular is solely to track/detain the wanted person and hand them over to appropriate law enforcing agency. It curtails person s ability to travel in and out of country. A Coordinate Bench of this court in Sumer Singh Salkan V Assistant Director others, ILR ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le offences under IPC or other penal laws and reason for opening LOC must invariably be provided without which the subject of an LOC will not be arrested/detained. As per clause 8(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 and originating agency can only request that they be informed about the arrival/departure of the subject in such cases. As per clause 8(i) 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. Clauses 8(g) (h) are read as under:- 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 a 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that the decision is purely an administrative one or that in no situation can the court examine the reasons provided by the authority for the issuance of a LOC. The Court will be circumspect in interfering with the authority s decision to issue the same but there can never be any blanket bar on the Court s powers of judicial review to examine the authority s decision to issue the LOC. It was held in respect of second issue that the request for LOC, having been made under the OM of 2010, resort could be made to the Clause introduced in 2017 as OM dated 05.12.2017 was clearly in the nature of an amendment to the circular dated 27.10.2010, Regarding third issue, the court by referring OM dated 22.02.2021 observed that under Clause J of the guidelines issued on 22.02.2021, the position has been reversed, and now a LOC once opened, remains in force, till a request for deletion is made. The concept of an automatic deletion of a LOC no longer exists. The court in respect of issue four observed that amendment of 2017 can be invoked only in exceptional circumstances, which is a mandatory pre-condition for formation of a reasonable belief by the originating authority that the departu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the petitioner. However, the petitioner was never arrayed as an accused in said FIR and the respondent no. 4 had already mentioned said fact in its Report. LOC as per the OM dated 27.10.2010 was to be valid only for one year but is operative till date i.e., for more than 6 years without any cogent reasons. There is no evidence against the petitioner and the role of the petitioner has not been established by the respondent no. 3 to justify issuance of LOC by the respondent no. 2. The counsels for the petitioner argued that LOC issued against the petitioner be cancelled/quashed/withdraw and the petitioner be allowed to return to United Kingdom. 10. The Central Government Standing Counsel (CGSC) assisted by other counsels argued on facts as mentioned and detailed in Counter Affidavit and Additional Affidavit submitted on behalf of the respondent no. 3. It was primarily argued that the respondent no. 3 had registered a case vide ECIR/02/MZO/2007 on 08.01.2007 against Hassan Ali Khan and others under PMLA on allegations that Hassan Ali Khan either individually or along with associates is maintaining account(s) with Union Bank of Switzerland, Zurich (UBS)in which substantial f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of PMLA, 2002 but the petitioner neither appeared nor filed the requisite documents and, therefore, failed to co-operate with the investigation. The petitioner on 03.02.2022 was summoned and directed to join investigation at the Mumbai Zonal Office on 11.02.2022 and was asked to furnish details/documents. The petitioner appeared before the Mumbai Zonal Office on 11.02.2022 but did not submit requisite documents. 10.5 The LOC was issued the petitioner as his presence is required for investigation and was issued in conformity with guidelines in terms of order dated 11.08.2010 passed by the coordinate Bench of this court in Writ Petition (Criminal) No. 1315 of 2008 titled as Sumer Singh Salkhan V Assistant Director and Others and OM No. 25015/31/2010-Imm. dated 27. 10.2010 issued by the Ministry of Home Affairs which was amended vide Office Memorandum No. 2501 6/10/201 7-Imm (Pt) dated 05.12.2017. 11. It is reflecting from record that Hassan Ali Khan was found to be involved in large scale money laundering and was holding bank accounts in various countries. The respondent no. 3 registered a ECIR vide ECIR/02/MZO/2007 dated 08.01.2007 under PMLA against Hassan Ali Khan and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Khan and unknown public servants wherein the petitioner was not implicated as an accused although the respondent no. 3 took contrary stand in Additional Affidavit. The respondent no. 2 initiated investigation under PMLA vide ECIR/HQ/02/2017 dated 24.01.2017 after considering nature of scheduled offences and involvement of proceeds of crime of Rs. 36000 crores. 11.3 LOC was issued in pursuance of Office Memorandum dated 27th October, 2010 and as per clause 8(g) recourse to LOC is to be taken in cognizable offences under IPC or other penal laws. The petitioner at that time was not implicated in any cognizable offence either under IPC or any other penal law. The petitioner is now covered by the OM of 2017 after amendments made in OM of 2010 which provides that in exceptional cases, LOCs can be issued in cases which are not covered by the guidelines of OM of 2010 and departure of a person from India may be declined if it appears 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erseas financial transactions, bank accounts etc. The petitioner did not participate in investigation and gave evasive replies or exhibit ignorance. The petitioner during investigation did not divulge vital and sensitive information. The petitioner is cited as witness in criminal prosecutions launched under PMLA and Prevention of Corruption Act, 1988. The presence of the petitioner is required in India and departure of the petitioner would be detrimental to larger public interest. The respondent was justified in issuance of LOC on request of the respondent no. 3 against the petitioner under given facts and circumstances. The case of the petitioner falls in exception clause as per amended OM of 2017. There is no force in arguments advanced by the counsels of the petitioner that LOC was not issued on justified reasons and is based on conjectures and surmises and was issued in contravention of OM of 2010. There exit sufficient ground for issuance of LOC and its continuance thereafter. LOC was rightly issued to prevent his escape from India particularly when the petitioner did not participate in investigation properly and failed to divulge relevant information being close associate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s registered ECIR No.02/M20/207 on1st November, 2016 and investigation by the Enforcement Directorate is in progress. 4. In above circumstances, we are not inclined to entertain this Writ petition and the same is accordingly dismissed. 12.2 The rule of res judicata is based on public policy as finality should attach to the binding decisions pronounced by courts of competent jurisdiction. This is applicable to writ proceedings through the process of judicial interpretation and a party is precluded from initiating fresh legal in respect of same cause of action. If a writ petition is filed in a High Court or Supreme Court and is rejected on merits then a subsequent writ petition cannot be moved on the same cause of action. Even if in the first petition a plea which could have been raised is pot raised, the matter cannot be agitated in a subsequent petition because of constructive res judicata. It is also based on public policy and to prevent harassment and hardship to the opposite party. The decision given by the court operates as res judicata and not the reasons given by the court in support of the decision. The principle of res judicata applies not only when an issue has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 1607 , established principle of res judicata applicable for writ petitions under Articles 32 and 226. It was held that the binding character of judgments of courts of competent jurisdiction was in essence a part of rule of law on which administration of justice was founded. A judgment of the High Court under Article 226 given on merits must bind all unless set aside in appeal. 12.4 The petitioner in the present petition prayed for withdrawal/ cancellation/quashing/discontinuance/recalling of the Look Out Circular issued in the name of the petitioner and to allow the petitioner to return to his home in the United Kingdom. The petitioner in writ petition bearing no. 2332 of 2016 titled as Girish Sagar V Directorate of Enforcement Others filed before the High Court of Bombay prayed for quashing of the LOC dated 10.12.2016 issued by the respondent no. 6 which was dismissed vide order dated 21.12.2016. The relief as prayed for in present petition and petition bearing no. 2332 of 2016 are substantially similar and based on same cause of action i.e. LOC dated 10.12.2016. The perusal of order dated 21.12.2016 reflects that Writ Petition bearing no. 2332 of 2016 was dismissed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mumbai took cognizance of these Complaints and issued the process. The petitioner was required to file present petition in Mumbai. The counsels for the petitioner argued that this court is having territorial jurisdiction to entertain and decide the present petition and stated that this court has jurisdiction to entertain and adjudicate the present petition as Look Out Circular was issued by the respondent no. 2 which is having its registered office at Delhi and trial in pursuance of FIR bearing RC No. 13/E/2016 is pending adjudication before the CBI Court, New Delhi. 13.1 Whenever a suit/writ is instituted before the court, the initial issue is to be decided whether the court has jurisdiction to deal with the matter. If the court does not have jurisdiction then it will be recognized as lack of jurisdiction and irregular exercise of jurisdiction. If the court does not have jurisdiction to decide the case then such decision would be regarded as void or voidable depending upon the circumstances. Jurisdiction is not defined and explained in Code of Civil Procedure, 1908. Jurisdiction is power and competence of the court to adjudicate case. Jurisdiction is boundary of court in exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to hear and determine the subject matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them ; the power to hear, determine and pronounce judgment on the issues before the Court ; the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgments into effect ; the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution . Proceeding further the learned Judge observed: This jurisdiction of the Court may be qualified or restricted by a variety of circumstances. Thus, the jurisdiction may have to be considered with reference to place, value and nature of the subject matter. The power of a tribunal may be exercised within defined territorial limits. Its cognizance may be restricted to subject-matters of prescribed value. It may be competent to deal with controversies of a specified character, for instance, testamentary or matrimonial causes, acquisition of lands for public purposes, record of rights as between landlords and tenants. This classification into territorial jurisdiction, pecuniary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter office of ED, Delhi on 30.06.2018 but the petitioner himself on 02.07.2018 requested to change venue/place of enquiry to Mumbai which was not accepted. Thereafter, the petitioner was further directed to join investigation in ED headquarter office at Delhi vide summons dated 10.08.2018, 14.08.2018, 11.01.2019 and 01.02.2019 under Section 50 of PMLA, 2002. The petitioner on 03.02.2022 was summoned and in pursuance of order dated 24.01.2022 passed by this court was directed to join investigation at the Mumbai Zonal Office on11.02.2022 and was asked to furnish details/documents. The petitioner appeared before the Mumbai Zonal Office on 11.02.2022 and his statement was recorded on 11.02.2022 under section 50 of PMLA. 13.4 The special court, PMLA at Mumbai has already seized with criminal cases as detailed hereinabove initiated by the respondent no. 3. The petitioner himself subjected him to jurisdiction of courts situated at Mumbai by filing writ petition bearing no. 2332 of 2016 and Crl. Misc. Application No. 677/2018 for supplying the certified copy of the FIR registered on 19.09.2016 by the CBI. The respondent no. 4/CBI, EOW, Mumbai also registered FIR bearing no. RCD682016E00 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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