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TMI Blog2023 (3) TMI 1566X X X X Extracts X X X X X X X X Extracts X X X X ..... an extraditable offence, nor any request for extradition of the petitioner has been made for the last 7 years despite knowing whereabouts of the petitioner. I, therefore, consider it a fit case for quashing the RCN issued against the petitioner at the behest of Delhi Police. The RCN, is therefore, hereby quashed.' The petitioner is issued summons on 26-11-2021 after his arrival and stay in India for more than three months by the ED for investigation or questioning in a criminal case registered against one Mr. Srikrishna, brother of the petitioner in Crime No.153 of 2020. On registration of the crime against several persons, the ED also registers an Enforcement Case Information Report in ECIR No.1 of 2021 which was registered on 04-01-2021. Therefore, there are two proceedings pending against the brother and father of the petitioner and several others in the predicate offence or under the provisions of the Prevention of Money Laundering Act, 2002. An accused or any other person who is connected with the proceeds of crime, but may not be accused in the predicate offence, has a bounden duty to co-operate with the investigation. If the investigation does not get completed on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 12-08-2021 the petitioner lands on the shores of this nation to see his ailing father who appears to have been suffering from Parkinson's disease. The petitioner is a holder of a Dutch residence permit and not a citizen which is necessary for work in Netherlands. Coming of the petitioner to the shores of India is not what is the issue in the lis. 3. The brother of the petitioner had been embroiled in certain transactions which have become subject matter of proceedings before the Enforcement Directorate. In furtherance of the said proceedings, summons come be issued against the petitioner on 26-11-2021 directing him to appear before the 3rd respondent on 29-11-2021. The petitioner did appear before the 3rd respondent and co-operated with the investigation. Since the petitioner was working at Netherlands he had to return back to his job and accordingly, owing to his employment condition, scheduled his travel to Netherlands on 13-01-2022. The petitioner was issued a boarding pass as well for such travel. At the time of boarding the flight, the petitioner was stopped and restrained from proceeding further. Stamping was made on the Visa of the petitioner as cancelled. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered by several constitutional Courts. Reference to them would be made in the course of this order as per their relevance. 8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 9. Before embarking upon merits of the matter, I deem it appropriate to notice the office memoranda issued by Government of India in the Ministry of Home Affairs from time to time. It would suffice for the journey to commence from the judgment of the Delhi High Court in the case of SUMER SINGH SALKAN v. ASSISTANT DIRECTOR AND OTHERS ILR (2010) 6 Delhi 706 wherein it is observed as follows: "5. This court also received a reference from ACMM, Patiala House Court regarding guidelines for issuance of LOC and for closure of LOCs. Response of the State/UOI was sought on this reference. In its response, it is stated by UOI that there was no legal definition of LOC. However, LOC was interpreted as a communication received from an authorized government agency with reference to a person who is wanted by that agency for fulfillment of a legal requirement, to secure arrest of a person evading arrest, to nab a Proclaimed Offenders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to accused/suspected persons wanted in some cases. Besides, different courts also issue these communications in the form of LOCs including LOCs against those person who evade their presence in the Court of law during the course of judicial trial." 9. It is further clear from the reply that in terms of a subsequent O.M. dated 27th December 2000 there is a specific proforma in which a request must be made for opening of an LOC and this should be issued "with the approval of an officer not below the rank of Deputy Secretary to the Government of India/Joint Secretary in the State Government/ Concerned Superintendent of Police at district level." A copy of the Office Memorandum dated 27th December 2000 enclosing pro-forma for request for opening an LOC has also been enclosed. 16. The question now is only for consequential relief that should be granted. The power to suspend, even temporarily, a passport of a citizen, the power to issue an LOC, the power to 'off-load' a passenger and prevent him or her from travelling are all extraordinary powers, vested in the criminal law enforcement agencies by the statutory law. These are powers that are required under the law, to be exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1984 SC 1026. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case." This High Court concerning the issuance of LOC in Vikram Sharma (Supra) gave following directions: "19. Mr. Nanda, learned counsel appearing for Respondent No. 1 submitted that in order to ensure that such incidents do not recur, this Court should direct that further instructions/circulars should be issued clarifying the correct legal position. This Court finds that there are a large number of statutory commissions at the level of the Centre and the States which perform judicial functions and are vested with, for the purpose of conducting inquiries upon receiving complaints, the powers of a civil court. These include the National Human Rights Commission ('NHRC'), the NCW, the National Commission for Protection of Children's R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request for extradition of the petitioner has been made for the last 7 years despite knowing whereabouts of the petitioner. I, therefore, consider it a fit case for quashing the RCN issued against the petitioner at the behest of Delhi Police. The RCN, is therefore, hereby quashed. 11. Look-out-Circular has also been issued against the petitioner as the petitioner is an accused the Court of M.M. and he has not appeared the Court of M.M. If the petitioner gives an undertaking the court for his appearance on a particular date, through his counsel, the Look-out-Circular issued against the petitioner shall be withdrawn within 24 hours of giving undertaking by the petitioner. The questions raised in the reference are as under: "A. What are the categories of cases in which the investigating agency can seek recourse of Look-outCircular and under what circumstances? B. What procedure is required to be followed by the investigating agency opening a Look-out-circular? C. What is the remedy available to the person against whom such Look-out-Circular has been opened? D. What is the role of the concerned Court when such a case is brought it and under what circumstances, the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate of the District concerned; or (iv) Superintendent of Police (SP) of the District concerned; or (v) SP in CBI or an officer of equal and level working in CBI; or (vi) Zonal Director in Narcotics Control Bureau (NCB) or an officer of equivalent level including Assistant Director (Ops.) in Headquarters of NCB); or (vii) Deputy Commissioner or an officer of equivalent level in the Directorate of Revenue Intelligence or Central Board of Direct Taxes or Central Board of excise and Customs; or (viii) Assistant Director of Intelligence Bureau/Bureau of Immigration (BOI); or (ix) Deputy Secretary of Research and Analysis Wing (R & AW); or (x) An officer not below the level of Superintendent of Police in National Investigation Agency; or (xi) Assistant Director of Enforcement Directorate; or (xii) Protector of emigrants in the office of the protector of emigrants are in office or not below the rank of deputy Secretary of the Government of India; or (xiii) Designated officer of Interpol. Further, LOC's can also be issued as per the direction of any criminal court in India. c) The name and designation of the officer shining the proforma for request ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impounding of passport; d. LOC's issued at behest of courts and interpol j) In exceptional cases LOC's can be issued without complete parameters and/ pr case detail against Cl suspects, terrorist, anti-national element, etc in larger National interest. k) the following procedures will be adopted in case of statutory bodies like NCW, the NHRC and national commission for protection of children's rights request for preventing Indian/ for from. Search our first to be brought to the notice of law enforcement Agencies like the police. The SP concerned with then makes the request for issuance of an LOC upon an assessment of the situation. The immigration/ immigration authorities will strictly go by the communication received from the officer authorised to open LOC's as details in para 8(b) above. 9. It is requested that the contents of this OM may be brought to the notice of all concerned for strict compliance. (Emphasis added) Pursuant to the afore-mentioned judgment and the Office Memorandum the LOCs were being issued following directions as was directed in the aforesaid Office Memorandum. This Office Memorandum has been tinkered and replaced from time to time. The prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India; or (xiii) Designated officer of Interpol; or (xiv) An officer of Serious Fraud Investigation Office (SFIO), Ministry of Corporate Affairs not below the rank of Additional Director (in the rank of Director in the Government of India); or (xv) Chairman / Managing Directors / Chief Executive of all Public Sector Banks. (C) LOC can also be issued as per directions of any Criminal Court in India. In all such cases, request for opening of LOC shall be initiated by the local police or by any other Law Enforcement Agencies concerned so that all parameters for opening LOCs are available. (D) The name and designation of the officer signing the Proforma for requesting issuance of an LOC must invariably be mentioned without which the request for issuance of LOC would not be entertained. (E) The contact details of the Originator must be provided in column VI of the enclosed Proforma. The contact telephone/mobile number of the respective control room should also be mentioned to ensure proper communication for effective follow up action. Originator shall also provide the following additional information in column VI of the enclosed Proforma to ensure proper communicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... many occasions, persons against whom LOCs are issued, obtain Orders regarding LOC deletion/quashing/suspension from Courts and approach ICPs for LOC deletion and seek their departure. Since ICPs have no means of verifying genuineness of the Court Order, in all such cases, orders for deletion/ quashing/suspension etc. of LOC, must be communicated to the Bol through the same Originator who requested for opening of LOC. Hon'ble Courts may be requested by the Law Enforcement Agency concerned to endorse/convey orders regarding LOC suspension/ deletion/quashing etc. to the same law enforcement agency through which LOC was opened. (L) In exceptional cases, LOCs can be issued even in such cases, may 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) above, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (viii) Each LOC Originating Agency referred in para 6 (B) above will appoint a Nodal officer as indicated in Annexure - I for coordination/ updation of LOC status with BoI. The said team of BoI [as mentioned in para 6(N) (vii)] would remain in constant touch with this Nodal Officer. 7. It is requested that the consolidated guidelines as contained in this O.M. may be brought to the notice of all concerned for strict compliance." (Emphasis added) In terms of the afore-quoted guidelines pursuant to the judgment of the Delhi High Court in the case of SUMER SINGH SALKAN and the one that is now being operated would unmistakably indicate a slew of procedure that is to be followed for issuance of LOC; a request for opening an LOC would be made by the originating agency to the Deputy Director, Bureau of Immigration on a particular subject i.e., a citizen. Therefore, there are three protagonists in the episode - (i) the subject, the citizen, (ii) the originating agency, one who requests issuance of an LOC and (iii) executing agency who executes the request of the originating agency to execute the LOC and stop the travel of the subject beyond the shores of this nation. Such an LO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the case of the ED that the brother of the petitioner had admitted in those statements that proceeds have been utilized for illicit activities such as narcotics, travel, parties and stay at luxurious hotels etc. A separate case has also been registered against the brother of the petitioner for stealing bitcoins and purchasing narcotics on line through Darkweb in Crime No.91 of 2020. These are the proceedings against the brother of the petitioner. The proceedings in ECIR 4 of 2020 comes to be registered on the strength of the FIR in Crime No.9 of 2019 registered by the Crime Investigation Department Police with regard to hacking of e-procurement portal of Government of Karnataka and thieving of Rs. 11.55 crores from the Government portal Bank account. It is during investigation of the said hacking, the name of the brother of the petitioner comes about and the brother gives a statement of involvement in those alleged crimes. This is the story about the genesis of the crime. 13. The petitioner claims to have come to India to see his ailing father on 12-08-2021 and was in India for about 3 months up to the date on which he was issued summons by the ED. The allegation is that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot divulging the passport or the password of e-mail account and is not divulging receipt of 50,000 pounds from his brother through Bank transfer and further transfer from his account to one Mr. Hanish Patel. The observations of the co-ordinate Bench of this Court in the aforesaid order is as follows: "11. Learned Additional Solicitor General inviting attention of this Court to memo dated 5-04-2022 submits that even on 23-03-2022, the petitioner instead of appearing before the third respondent, sent a letter through his advocate and the said letter is also silent on the aspect of receipt of 50,000 pounds from his brother Mr. Sri Krishna through bank transfer. It is submitted that unless petitioner explains satisfactorily the receipt of 50,000/- pounds and further transfer of the same to one Mr. Hanish Patel and furnishes the password of the temporary e-mails and certain keys, his presence for investigation with regard to money laundering case registered against his brother would be absolutely necessary. It is his submission that the economic interest of the country is involved. It is also submitted that conversation between the petitioner and his father revealed that certain Great ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for withdrawal of LOC issued against him. Therefore, two representations were submitted by the petitioner, the latest being on 19-12-2022. Noticing certain paragraphs of the said representation assumes certain significance and is, therefore, extracted for the purpose of ready reference: "4. Thereafter, as a condition precedent to my employment conditions I was required to return to the Netherlands on or before 27-01-2022. Accordingly, I was scheduled to depart from Kempegowda International Airport, Bengaluru on 13-01-2022. Upon completing all the other formalities requisite for an international flight, I proceeded towards the immigration desk and obtained the due formal stamping of my passport. Thereafter, much to my shock and surprise, I was resisted from proceeding any further and my visa was stamped as cancelled and the same came to be endorsed on my passport. Despite my repeated and persistent requests, no information came to be divulged by the Officers of the Bureau of Immigration for the aforesaid action meted out to me. 5. Upon my return, I was constrained to address a detailed representation to my employer adumbrating the entire circumstances of the aforesaid issue and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranting issuance of LOC as aforesaid. Owing to which, the Hon'ble High Court of Karnataka further directed you to produce the supporting documents warranting to the issuance of the LOC against me. The said documents were produced before the Hon'ble High Court on the next date of hearing and returned back to you. Pertinently, neither my counsel nor was I allowed to peruse the aforesaid LOC or the documents produced in support of issuance of the same. 10. When things stood thus, during the pendency of the writ petition, your good office came to issue two more summons calling upon me to appear before you on 5.05.2022 and 1-062022. I once again duly appeared before your good office and extended my full co-operation. Pertinently, I was asked by you to provide clarification to the same set of questions as posed to me during the earlier summons and questioning thereof. 11. On 20-06-2022, the Hon'ble High Court of Karnataka disposed of the aforesaid writ petition affording liberty to approach your good self regarding withdrawal of the LOC issued against me. 12. In view of the foregoing, I had addressed a detailed representation through e-mail as stated in the subject above on 21-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rest of my life and that of my family members. In such circumstances, I would once again urge your good offices to lift the LOC issued against me. Due to the grave and imminent consequences as mentioned above, I kindly request you to consider my representation within a period of two weeks from today." The petitioner submits that his employment will be lost, if he is not permitted to go and join his duties and his right to livelihood would be taken away. But, he does not indicate the keys, the password or any other information that is necessary for completion of investigation. Any amount of judgments could be quoted to drive home the point that fundamental right of a person is taken away but all of them with a rider that one should co-operate with the investigation. An accused or any other person who is connected with the proceeds of crime, but may not be accused in the predicate offence, has a bounden duty to co-operate with the investigation. If the investigation does not get completed on account of his noncooperation which would result against others not being taken to logical conclusion, it would defeat the delivery of justice as it would defeat discovery of crime. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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