Delhi High Court
Girish Sagar vs Union Of India & Ors on 31 August, 2022
$~34
* IN THE HIGH COURT OF DELHI AT NEWDELHI
Reserved on: August 04, 2022
Decided on: August 31, 2022
+ W.P(CRL) 3420/2019
GIRISH SAGAR ..... Petitioner
Through: Mr. Shiv Dutt Bakshi, Ms.
Kushika Chachla, Mr. Kunal
Nath, Ms. Bhawna Sharma
and Mr. D.K. Dogra,
Advocates.
V
UNION OF INDIA & OTHERS ....Respondents
Through: Mr. Anurag Ahluwalia,
CGSC with Mr. Vinod
Tiwari, GP, Mr. Danish
Faraz Khan, Mr. Vishal
Chanda and Mr. Gurimar
Preet Singhh, Advocates for
R-1 to 3.
Mr. Anupam S. Sharma,
SPP and Mr. Prakarsh
Airan, Advocates for CBI.
%
CORAM:
HON‟BLE MR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present writ petition is filed under Article 226 of the
constitution read with section 482 of the Code of Criminal Procedure,
1973(hereinafter referred to as "The Cr.P.C") for quashing of the
Look Out Circular dated 10.02.2016 issued by the respondent no. 2
against the petitioner.
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2. The petitioner pleaded that the petitioner, a person of Indian
Origin, is a citizen of the United Kingdom and is holding British
passport bearing No. 521241201. The petitioner is engaged in the
business of repairing and sale of watches. The petitioner is also
holding a document issued by the Government of India i.e., Overseas
Citizen of India bearing no. A860650. The Petitioner came to India
on 16.01.2016 to visit his ailing and aged mother residing flat bearing
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,
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Opera House, Mumbai - 400004 without search warrant and seized
copies of bank accounts details and certain mobile phone bills.
2.3 The respondent no. 2 opened/issued Look Out Circular
(hereinafter referred to as "LOC") on 10.02.2016 against the
petitioner without any justified or cogent reason and in contradiction
to the Office Memorandum dated 27.10.2010 issued by the Ministry
of Home Affairs (Foreigners Division).
2.4 The petitioner in compliance of summons issued by the
respondent no. 3 appeared before the respondent no. 3 on 12.02.2016
and 26.02.2016 and thereafter also participated in the investigation.
2.5 The respondent no. 3 in March, 2016 filed an application bearing
O.A. No 49 of 2016 under sub-section (4) of Section 17 of PMLA
before the adjudicating authority, New Delhi constituted under the
PMLA seeking retention of documents/ records / properties seized on
09.02.2016 from the premises owned by mother of the petitioner. The
petitioner came to know from said O.A. that the respondent no. 3
seized mobile bills and photocopy of jewellery on 09.02. 2016. The
jewellery was surfaced for the first time in the O.A. No 49/2016.
2.6 The petitioner was bound to return to United Kingdom on
14.04.2016 but was apprehended at Mumbai Airport and was
disallowed to leave India due to LOC issued by respondent no. 2
against the petitioner which curbed his right to travel beyond India.
2.7 The respondent no. 3 issued summons to the petitioner on
03.05.2016 and 10.05.2016. The respondent no. 3 during
investigation asked the petitioner to lodge a police complaint against
Hassan Ali Khan which was refused by the petitioner. The petitioner
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was forced to sign a statement. The petitioner subsequently retracted
from the statement made on 11.05.2016.
2.8 The petitioner filed a Criminal Writ Petition bearing No.
2332/2016 before the High Court of Bombay for
withdrawal/cancellation/discontinuance of LOC issued by the
respondent no. 2.The High Court of Bombay vide order 23.09.2016
asked the Public Prosecutor to take final decision regarding alleged
involvement of the petitioner in a crime under investigation by the
respondents. The High Court of Bombay vide proceedings dated
14.10.2016 recorded submissions of an officer of the respondent no.
3 who submitted that the role of the petitioner is being investigated
which revealed that the petitioner was an accused and the
investigating agency would 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
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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 19.09.2016
by the CBI. The respondent no. 3 in reply dated 08.06.2018 admitted
that the petitioner was not implicated as an accused in the said FIR
and said fact was also recorded in the order dated 04.08.2018 passed
by the Special Judge.
2.10 The petitioner through counsel sent email on 30.05.2019 to the
Director (Immigration), Ministry of Home Affairs and requested the
Director (Immigration) to provide the current status of the LOC
within 48 hours. The petitioner was not allowed to leave India due to
the LOC. The petitioner sent another email to the Director
(Immigration), Ministry of Home Affairs on 17.06.2019 to inquire
about current status of LOC. The Assistant Director, SIC, BOI,
Sector - 1, R.K, Puram, New Delhi i.e., the respondent no. 6 vide
letter dated 28.06.2019 informed that Bureau of Immigration would
be taking appropriate action but no relevant details were intimated to
the petitioner regarding LOC. The petitioner again sent emails but
without any response.
2.11 The petitioner challenged validity of LOC on grounds that the
petitioner being a citizen of United Kingdom and holding a valid
passport ought not to be prohibited from travelling back to the United
Kingdom, which is his fundamental right as Article 21 of the
Constitution. The petitioner has been denied right to liberty and to
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live with dignity. LOC is illegal, unconstitutional and unlawful and
was beyond the mandate of Office Memorandum dated 27.10.2010
bearing No. 25016/31/2010 - Imm. issued by the Ministry of Home
Affairs, Government of India (Foreigners Division) as on date of
issuance of LOC no criminal case or trial was pending against the
petitioner. The registration of FIR on 19.09.2019 was completely
unjustified and was registered after seven months from issuance of
LOC. The copies of LOC and FIR were not supplied to the petitioner.
LOC has lost its validity after expiry of one year from date of its
issuance unless renewed in accordance with the Office Memorandum
dated 27.10.2010. The issuance of a LOC is an extra ordinary power
and can be exercised only in exceptional situations. The petitioner is
in paucity of funds and is denied comforts of staying with his family
and wife of the petitioner also needs immediate medical intervention.
The petitioner prayed as under:-
I. issue a writ in the nature of Mandamus and/or any other
appropriate writ, order or directions against 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.
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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
laundering of USD 93.7 Million (approximately Rs. 423 Crores). The
Special Court (PMLA), Mumbai after taking cognizance issued
process against Hassan Ali Khan and others in these prosecution
complaints for the offence under section 3 of the PMLA. The
petitioner filed a Writ Petition titled as Girish Sagar V Directorate
of Enforcement & Others bearing no. 2332 of 2016 before the High
Court of Bombay seeking quashing of LOC issued by the respondent
no. 2 through the respondent no. 6 which was dismissed vide order
dated 21.12.2016.The present petition is not maintainable due to lack
of jurisdiction.
3.2 Hassan Ali Khan also involved in the theft of jewellery and
antiques from Salarjung Museum, Hyderabad and the petitioner
appeared to be involved in the trading of jewellery and antiques
stolen from the Salarjung Museum, Hyderabad with active
connivance of Hassan Ali Khan. The petitioner was investigated for
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his role in assisting Hassan Ali Khan in the PMLA case being
investigated by the respondent no. 3 which is having international
ramifications. The petitioner did not co-operate with the investigation
being conducted by the respondent no. 3. LOC was issued against the
petitioner as his presence in the country was necessary for
investigation after following guidelines issued by this court vide
order dated 11.08.2010 passed in Writ Petition (Criminal) No. 1315
of 2008 titled as Sumer Singh Salkhan V Assistant Director and
Others and vide OM No. 25015/31/2010-lmm. Dated 27.10.2010
issued by the Ministry of Home Affairs with respect to issuance of
LOC.
3.3 The respondent no.3 conducted search at the residence of the
petitioner situated at Queens Diamond Apartment, Opera House,
Mumbai on 09.02.2016 under Search Authorization bearing No.
17/2016 dated 08.02.2016and the records/documents seized were
incorporated in the panchnama prepared by the respondent no. 3.
3.4 The petitioner tried to flee India on 14.04.2016 but was
apprehended at Chattrapati Shivaji Airport, Mumbai on the basis of
the LOC. The petitioner again attempted to flee via the land route
from the check point at Petrapore near Indo-Bangladesh border but
was stopped in his tracks. The intention of the petitioner was to flee
from the country and not to cooperate in the investigation being
conducted by the respondent no. 3. There is every possibility that the
petitioner being citizen of UK might escape from India and would not
return back to join the investigation.
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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 retracted
from the voluntary statement made by him. LOC is still in operation
and is renewed from time to time.The petitioner is being investigated
regarding role played by him with Hassan Ali Khan who is involved
in large scale money laundering and holding bank accounts in various
countries. The petition is liable to be dismissed.
4. The petitioner filed rejoinder affidavit wherein stated that the
petitioner is not an accused in Prosecution Complaints bearing No.
01/2011 dated 06.05.2011 titled as Sameer Bajaj V Hassan Ali
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Khan & another and 24/2018 dated 17.07.2018 titled as Directorate
of Enforcement V Hassan Ali Khan & Others.
5. The respondent no. 3 filed additional affidavit sworn by Rajesh
Kumar, Assistant Director, Directorate of Enforcement, Mumbai in
terms of order 17.03.2021 wherein stated that the respondent no. 3
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 was maintaining
account(s) with Union Bank of Switzerland, Zurich (hereinafter
referred to as "UBS") and it was believed that substantial funds of
US $8 billion were stashed in December, 2006.There were reasons to
believe that part of said funds stashed in the account of Hassan Ali
Khan at UBS, Credit Swiss Bank and Sarasin Banks (the funds were
moved from UBS) has come from illegitimate and illegal sources and
could possibly be funds from sale of arms/ammunition / weapons to
India, other countries in collusion with the arms dealer Adnan
Khashoggi.
5.1 There are also reasons to believe that Hassan Ali Khan is only a
front man and is holding foreign account(s) as a Power of Attorney
Holder for some influential politician(s) /bureaucrat(s) of
Government of India who is / are the actual beneficial owner(s) of
such account(s) / amount(s) earned through corrupt and illegal
means. Hassan Ali Khan is also believed to be dealing in illegal sale
of antique items and is also involved in hawala transactions / money
laundering activities. The petitioner is investigated being a close
associate of Hassan Ali Khan and is having privy and knowledge of
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the illegal activities of Hassan Ali Khan including smuggling of
antiques/artefacts, his huge overseas financial transactions, bank
accounts etc. The claim of the petitioner that he is a watch repairer/
Horologist 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 arranged US $300,000/- for Hassan All
Khan through M. Sonnenthal by pawning some jewellery. The
petitioner also got wire transferred of US $300,000/- in the Suisse
Bank account of Hasan Ali Khan through Mr. Michael Sonnenthal as
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admitted by the petitioner in statement dated 26.02.2016. As per
intercepted calls, Hassan Ali Khan also offered the petitioner
important paintings and antiques which he wanted to send abroad
through Swiss Consulate General and the petitioner was having good
relations with foreign bankers of Credit Suisse and was friend of Mr.
Remo and Mr. Joe, CEO of Credit Suisse Bank and Sarasin Banks,
where the funds were being moved from UBS by Mr. Hassan Ali
Khan in 2006-2007.
5.4 The petitioner also convinced the then Swiss Consulate General
to smuggle out some antiques for Mr. Hassan Ali Khan in his
container. The petitioner also negotiated sale of antiques belonging to
some diamond dealer from New York. The petitioner is deeply
involved and appears to be fully conversant with position, source of
funds, activities and financial transaction of Hassan Ali Khan but the
petitioner is not divulging complete facts which are in his knowledge.
The petitioner was non-cooperative throughout the investigation. The
petitioner was tracked and only thereafter, he appeared before
Investigation Officer on 21.02.2016 after deleting all data from his
mobile. The petitioner in various statements gave either evasive
replies or claimed ignorance.
5.5 The respondent no. 3 due to non-cooperative attitude of the
petitioner as a preventive measure requested Bureau of Immigration
to issue a Look Out Circular against the petitioner on 10.02.2016 to
prevent him from leaving the country. The petitioner remained non-
cooperative in investigation despite issuance of LOC. The activities
of the petitioner appear to be suspicious with Hasan Ali and he
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appears to be indulged with or knowingly assisted Hassan Ali Khan
and his associates in activity connected to proceed of Crime. The
petitioner as such is suspected to be accused of offence of money
laundering as defined under section 3 of PMLA.
5.6 The FIR No. RC 0682016E0013 dated19.09.2016 was registered
by CBI/EOW/Mumbai against Hassan Ali Khan and unknown public
servants wherein the petitioner is mentioned as an accused. The
petitioner is cited as a witness in Prosecution Complaints bearing no.
01 of 2011 and 24 of 2018 and 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/AV-
VI/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
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not been arraigned as an accused in FIR/RC but his role in the
commission of offences was suspected and notice under section 160
Cr.P.C. was issued to the petitioner for joining the investigation on
two/three occasions at Delhi and Mumbai. The petitioner during
investigation was examined in detail and his statements were
recorded but the role of the petitioner was not clearly established
during investigation and as such no need was felt for associating the
petitioner with the investigation. CBI has not put any embargo on the
movement of the petitioner within India or abroad and has not got
opened LOC against the petitioner. The petitioner should join the
investigation as and when directed. The petitioner was not made an
accused by CBI in any FIR registered at Mumbai.
7. The Enforcement Directorate in compliance of order dated
24.01.22 filed Status Report wherein stated that FIR bearing no.
RC0682016F0013 dated 19.09.2016 was registered by the CBI under
section 120-B read with section 420 IPC read with Section 13(1) (d)
of Prevention of Corruption Act, 1988. The petitioner was an
associate of Hassan Ali Khan and actively assisted him in the
commission of the offences. Directorate of Enforcement conducted
investigation under PMLA vide ECIR/HO/02/2017 dated 08.01.2018.
The statement of the petitioner during investigation was recorded
under Section 50 of PMLA wherein he disclosed that he knew
Hassan Ali Khan and assisted him in arranging transaction with
Michael Sonnenthal which was aimed at raising funds of USD
300000 from Michael Sonnenthal for Hassan Ali Khan against the
mortgage of certain jewellery of Dianoor Jewels London and said
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funds were sent by Michael Sonnenthal in the bank account of
Hassan Ali Khan operational in Credit Suisse Bank under the name
"Blank Prince".
7.1 The petitioner was directed to appear at ED (Headquarter office),
Delhi on 30.06.2018 but the petitioner on 02.07.2018 requested to
shift venue/place of enquiry to Mumbai instead of Delhi and said
request was not accepted. 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 but he failed to comply with the summons. The
petitioner neither appeared nor filed the requisite documents and
failed to cooperate with the investigation. The petitioner stated that
he has given consent to join the investigation at the Mumbai Zonal
Office 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.
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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 (2010)
VI DELHI 706 considered following four questions raised by the trial
court on the LOC raised in the reference: -
a) What are the categories of cases in which the
investigating agency can seek recourse of Look-out-
Circular and under what circumstances?
b) What procedure is required to be followed by the
investigating agency before opening a Look-out-Circular?
c) What is the remedy available to the person against whom
such Look-our-Circular has been opened?
d) What is the role of the concerned Court when such a
case is brought before it and under what circumstances the
subordinate Courts can intervene?
The above questions were answered by the court vide the
judgment dated 11th August, 2010 as under: -
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/arrest.
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
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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 a coercive measure to make a person surrender
to the investigating agency or Court of law. The
subordinate courts jurisdiction in affirming or cancelling
LOC is commensurate with the jurisdiction of cancellation
of NBWs or affirming NBWs.
8.1 The respondent no. 2/FRRO thereafter issued Office
Memorandum dated 27th October, 2010 for issuance of Look Out
Circular (LOC) in respect of Indian citizens and foreigners. As per
clause 8(g) recourse to LOC is to be taken in cognizable 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
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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.
The originating agency can only request that they be
informed about the arrival /departure of the subject in such
cases.
The Office Memorandum of 2010 was amended in 2017 to expand
the scope of the exceptions by permitting the issuance of LOCs in
cases in exceptional cases which 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 having potential of hampering
bilateral relations between countries or denting the economic
interests of the country, etc.
8.2 The Coordinate Bench of this court in Dhruv Tiwari V
Directorate of Enforcement, W.P. (Crl.) 2227/2021 observed that the
petitioner was not an accused either in the predicate offence or in
ECIRs and preventive/detentive LOC was converted into an
intimative LOC. It was directed that in the garb of LOC of
intimation, the petitioner will not be detained or prevented at the
airport or any other port on the pretext that first intimation has to be
given to the originating agency.
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8.3 Another Coordinate Bench of this court in Vikas Chaudhary V
Union Of India & Others, W.P.(C) 5374/2021 decided on 12th
January, 2022 considered four issues which are: (i) whether the Court
can interfere with the issuance of a LOC or whether it is purely an
administrative decision: (ii) whether having made a request for
issuance of the LOC under the OM dated 27.10.2010, the requesting
authority can now seek to defend the LOC by relying on a Clause
introduced vide the OM dated 05.12.2017 which for the first time
permits issuance of a LOC even when there is no involvement in a
cognizable offence, a pre-condition for issuance of a LOC under the
OM dated 27.10.2010; (iii) whether the LOC can be held to have
lapsed after one year from the date of its issuance or whether the
same continues to hold the field and (iv) whether the petitioner‟s
case would fall within the ambit of the Clause „detrimental to the
economic interests of the country‟ and if yes, whether the
respondents can continue to curtail the petitioner‟s rights by the
impugned LOC for an indefinite period, when admittedly, till date, no
proceedings have been initiated against him.
8.4 It was held regarding first issue that the scope of judicial review
to interfere with the decision of the competent authority issuing a
LOC is limited but it cannot be 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
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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 departure of an individual would be to such an
extent that it warrants curtailment of an individual‟s fundamental
right to travel abroad.
9. The counsels for the petitioner in written synopsis and in oral
arguments stated that the petitioner, a person of Indian origin, is a
citizen of United Kingdom and is holding British passport bearing
no. 521241201. The petitioner is also holding an Overseas Citizen of
India Card bearing no. A860650 and is engaged in business of repair
and sale of watches in London. The respondent no. 3 had filed a
Complaint bearing no. 01/2011 against Hassan Ali Khan and
Kashinath Tapuriah and the respondent no. 3 issued summons to the
petitioner to join the investigation in February, 2016. The petitioner
is neither an accused nor witness in said case. The respondent no. 2
issued illegal Look Out Circular (LOC) dated 10.02.2016 arbitrarily
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but and in contradiction of OM dated 27.10.2010. The respondent no.
2 has failed to satisfy mandatory pre-condition before issuance of
Look Out Circular as the petitioner was not involved in any
cognizable offence. The respondent to 2 issued LOC on mere
conjecture and surmises. The fundamental right of the petitioner to
travel cannot be curtailed as enshrined in Article 21 of the
Constitution and confirmed by the Supreme Court in Maneka
Gandhi V. Union of India, (1975) 1 SC 248.
9.1 The counsels for the petitioner further argued that the respondent
no. 3 without any cogent reason raided the residence of mother of the
petitioner in his absence but could not discover anything against the
petitioner except few mobile bills and photograph of jewelry. The
petitioner always participated in the investigation and has joined the
investigation sixteen times. The respondent no. 3 during the
investigation coerced him to file a false complaint against Hassan Ali
Khan despite that the petitioner has no has no relation with him.
9.2 The petitioner filed a writ petition bearing no. 2332/2016 before
High Court of Bombay and the respondent no. 3 mislead the High
Court by filing a confidential report wherein falsely stated that the
respondent no. 4 had registered an FIR dated 19.09.2016 against the
petitioner under Section 120-B read with section 420 of IPC and
section 13(2) and Section 13(1)(e) of Prevention of Corruption
Act,1988. The respondent no. 2 issued LOC seven months prior to
registration of alleged FIR 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
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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 funds to the tune of USD 8 Billion were
stashed in December, 2006 and these funds had come from
illegitimate and illegal sources. The petitioner was investigated being
a close associate of Hassan Ali Khan and was in contact with
numerous high ranking Swiss Bankers. The petitioner also arranged
funds for Hassan Ali Khan and was having good relations with
foreign bankers. The petitioner did not cooperate in investigation and
his statements were recorded on various dates wherein the petitioner
gave evasive replies or claimed ignorance. The petitioner tried to flee
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from India despite issuance of LOC. The investigation has not
reached finality due to non-cooperation of the petitioner.
10.1 The petitioner filed a Criminal Writ Petition bearing no. 2332 of
2016 titled as Girish Sagar V Directorate of Enforcement and
Others before the High of Bombay challenging the LOC which was
ordered to be dismissed vide order dated 21.12.2016. The Special
Court, PMLA, Mumbai took the cognizance on the Prosecution
Complaints bearing no. 01 of 2011 and 24 of 2018 and issued
process against the accused for the offence of Money Laundering
under Section 3 of PMLA. The petitioner has been made a
prosecution witness in these prosecution complaints and as such his
presence is very much required during trial.
10.2 The respondent no. 3 due to non-cooperative attitude of the
petitioner requested the respondent no. 2 through the respondent no.
6 to issue a Look-Out Circular (LOC) against the petitioner as a
preventive measure on 10.02.2016 so that he can be prevented from
leaving the country.
10.3 The respondent no. 4/CBI, EOW, Mumbai registered FIR dated
19.09.2016 under section 120-B read with section 420 of the Indian
Penal Code, 1860 read with Section 13(1) (d) of Prevention of
Corruption Act, 1988 and 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.
10.4 The Petitioner on 30.06.2018 was directed to appear in the
headquarter office of ED, Delhi and on 02.07.2018 requested to
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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 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 other son allegations that Hassan Ali
Khan either individually or along with associates was maintaining
account(s) with UBS and it was believed that substantial funds of US
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$8 billion were stashed in December, 2006 which was believed to be
came from illegitimate and illegal sources and could possibly be
funds from sale of arms/ammunition/weapons to India, other
countries in collusion with the arms dealers. The respondent no. 3
thereafter filed the Prosecution Complaints bearing no. 01/2011 dated
06.05.2011 and 24/2018 dated 17.07.2018. The petitioner was not
implicated as an accused either in ECIR vide ECIR/02/MZO/2007
dated 08.01.2007 or the Prosecution Complaints bearing no. 01/2011
dated 06.05.2011 and 24/2018 dated 17.07.2018for commission of
any cognizable offence but cited as a witness in Prosecution
Complaints bearing no. 01 of 2011 and 24 of 2018.
11.1 The petitioner was investigated for assisting Hassan Ali Khan in
his illegal and unlawful activities and being a close associate of
Hassan Ali Khan was having privy and knowledge of the illegal
activities of Hassan Ali Khan including smuggling of
antiques/artefacts, huge overseas financial transactions, bank
accounts etc. The petitioner was also in contact with numerous high
ranking Swiss Bankers including Remo Maurer, Bank Official of
Credit Swiss Bank and Swiss Consulate in Mumbai. The petitioner
also assisted Hassan Ali Khan in arranging finance for him. The
petitioner did not co-operate in the investigation being conducted by
the respondent no. 3. The petitioner in various statements gave either
evasive replies or claimed ignorance. The petitioner was activity
connected to proceed of crime as such was suspected to be accused of
offence of money laundering as defined under Section 3 of PMLA.
The respondent no. 3 due to non-cooperative attitude of the petitioner
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as a preventive measure requested Bureau of Immigration to issue a
Look Out Circular against the petitioner on 10.02.2016 to prevent
him from leaving the country and LOC was issued against the
petitioner, as his presence in the country was necessary for
investigation. The petitioner remained non-cooperative in
investigation despite issuance of LOC and attempted to flee from
India on two occasions but was apprehended.
11.2 The respondent no. 4/CBI/EOW/Mumbai also registered FIR
bearing no. RC 0682016E0013 dated 19.09.2016 against Hassan Ali
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
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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 be permitted in the larger
interest at any given point in time.
The relevant extract of the OM dated 05.12.2017reads as under-
Sub: Amendments in Circular dated 27.10.2010 for
issuance of LOC in respect of Indian citizens and
foreigners" - reg.
In continuation to the Ministry OM No.25016/31/2010-
Imm dated 27.10.2010 and as approved by the Competent
Authority, the following amendment is hereby issued
(emphasis supplied): -
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 Indian 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 actof
terrorism or offences against the State and/or that such
departure ought not be permitted in the larger interest at
any given point in time.
11.4 As observed by Coordinate Bench of this court in Vikas
Chaudhary V Union of India & Others that OM dated 05.12.2017
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was clearly in the nature of an amendment to the circular dated
27.10.2010 and existing Clause of the OM dated 27.10.2010 dealing
with cases covered under the exception Clause was sought to be
amended. OM of 2017 except for introducing an amendment to the
existing OM of 2010 does not lay down or even refer to any new
guidelines. The OM dated 05.12.2017 only sought to introduce an
amendment and OM issued on 05.12.2017 only brought about an
amendment and OM of 2010 continues to hold the field. This court is
also in agreement with observations given by Coordinate Bench of
this court.
11.5 The petitioner was active close associate of Hassan Ali Khan
who was indulging in large scale money laundering and was privy to
his illegal acts including sale of arms/ammunition/weapons to India,
other countries in collusion with the arms dealers besides smuggling
of antiques/artefacts, huge overseas 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
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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 Hassan Ali Khan. Issuance of LOC against
the petitioner is falling in exceptional clause of amendment as per
OM of 2017.
11.6 The counsels for the petitioner also argued that LOC which was
issued on 10.02.2016, was bound to expire after expiry of one year in
view of para 8 (i) of the OM dated 27.10.2010. The CGSC argued
that LOC was duly extended from time to time and as per amendment
introduced in February, 2021, LOC would continue till a deletion is
requested by the respondent no. 3/the originating authority. As per
Clause 8 (i) of the OM dated 27.10.2010 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 LOC thereafter unless the
concerned agency requests for its renewal within a period of one
year. However as per Clause „J‟ of the guidelines issued on
22.02.2021, which LOC shall remain in force until and unless a
deletion request is received by Bureau of Immigration from the
originator and no LOC shall be deleted automatically. There is no
force in arguments advanced by the counsels for the petitioner.
12. The CGSC also argued that the petitioner filed another writ
petition bearing no. 2332 of 2016 titled as Girish Sagar V
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Directorate of Enforcement & Others before High Court of
Bombay seeking quashing of the LOC dated 10.12.2016 issued by
the respondent no. 6 which was dismissed vide order dated
21.12.2016 and as such the present petition is not maintainable and is
liable to be dismissed as barred by res judicata. The counsels for the
petitioner argued to the contrary.
12.1 It is correct that the petitioner filed a writ petition bearing no.
2332 of 2016titled as Girish Sagar V Directorate of Enforcement
& Others before High Court of Bombay seeking quashing of LOC
dated 10.12.2016 which was dismissed vide order dated 21.12.2016
by observing as under: -
3. Mr Shinde, the learned Counsel appearing for
Respondent No. 1 placed before us the confidential report
as on 14'" December, 2016. We have perused the same and
returned back to Mr. Shinde. The report shows that CBI
has registered FIR against the Petitioner on 19thSeptember,
2016 under Section 120B read with 420 of the Indian Penal
Code, 1860 and sections 13(2) and 13(1)(e) of the
Prevention of Corruption Act,1988. The said report further
shows that on the basis of the said FIR, Enforcement
Directorate has 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
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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 actually been adjudicated by a court of competent jurisdiction but
also when the issues that were actually raised but in fact not decided.
12.3 The issue pertaining to the applicability of principle of res
judicata in filing subsequent writ petition on same cause of action
was considered by the superior courts on many occasions. It was
observed in Khacher Singh V State of UP, AIR 1995 All 338 that
the second writ petition will not be maintainable under Article 226 of
the Constitution if the earlier writ petition was dismissed by the High
Court even in limine by a non-speaking order and principle of res
judicata bars the second writ petition. It was held in R. V. Naidu V
Director, Enforcement Directorate, New Delhi, AIR 1992 Mad
235 that when categorical findings on certain issues had been given
by the court in a writ petition then subsequent petition for the same
issues would be barred by the principle of res judicata. The Supreme
Court in State Of Uttar Pradesh V Nawab Hussain, 1977 SCR (3)
428observed that the doctrine of res judicata is based on two
theories: (i) the finality and conclusiveness of judicial decisions for
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the final termination of disputes in the general interest of the
community as a matter of public policy, and (ii) the interest of the
individual that he should be protected from multiplication of
litigation. It was further observed as under:-
It therefore serves not only a public but also a private
purpose by obstructing the reopening of matters which have
once been adjudicated upon. It is thus not permissible to
obtain a second judgment for the same civil relief .on the
same cause of action, for other- wise the spirit of
contentiousness may give rise to conflicting judgments of
equal authority, lead to multiplicity of actions and bring the
administration of justice into disrepute. It is the cause of
action which gives rise to an action, and that is why it is
necessary for the courts to recognize that a cause of action
which results in a judgment must lose its identity and
vitality and merge in the judgment when pronounced. It
cannot therefore survive the judgment, or give rise to
another cause of action on the same facts. This is what is
known as the general principle of res judicata.
The Supreme Court in Direct Recruit Class II Engineering
Officers' Association V State of Maharashtra, AIR 1990 SC 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
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petitioner to return to his home in the United Kingdom. The
petitioner in writ petition bearing no. 2332 of 2016titled 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 High Court of Bombay after
considering confidential report wherein it was mentioned that CBI
has registered FIR against the petitioner on 19.09. 2016 under section
120B read with section 420 of the Indian Penal Code, 1860 and
sections 13(2) and 13(1)(e) of the Prevention of Corruption Act,1988
and thereafter Enforcement Directorate on the basis of said FIR has
registered ECIR No. 02/M20/2007 on 1st November, 2016 and
investigation by the Enforcement Directorate is in progress.
12.5 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 IPCread 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
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clearly established and the petitioner was not made an accused by
CBI in any FIR registered at Mumbai.
12.6 The petitioner has not challenged order dated21.12.2016 by
perusing further legal and judicial remedy. The counsels for the
petitioner during arguments could not explain why the petitioner did
not pursue further remedy in accordance with law to challenge order
dated 21.12.2016 passed by the High Court of Bombay and as such
order dated21.12.2016 has attained the finality. The petitioner cannot
be allowed to challenge issuance of LOC dated 10.12.2016 by
subsequent filing of present writ petition after dismissal of earlier
petition bearing no. 2332 of 2016 by the High Court of Bombay
despite it was dismissed on consideration of fact that CBI has
registered FIR against the petitioner on 19.09.2016as detailed
hereinabove and thereafter Enforcement Directorate on the basis of
said FIR has registered ECIR No.02/M20/2007 on 01.11.2016. There
is legal force in arguments advanced by the CGSC that present
petition is barred by res judicata. The present petition is barred by res
judicata.
13. The CGSC argued that the present petition is not maintainable
due to lack of territorial jurisdiction as the prosecution Complaints
bearing no. 01/2011 and 24/2013 were also filed in Mumbai and the
Special Court, PMLA, 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
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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
exercise its judicial authority. In Hriday Nath Roy V Ram
Chandra, AIR 1921 Cal 34, Calcutta High Court explained
Jurisdiction and observed as under:-
An examination of the cases in the books discloses numerous
attempts to define the term „jurisdiction‟, which has been
stated to be „the power to hear and determine issues of law
and fact;‟ „the authority by which judicial officers take
cognizance of and decide cause;‟ „the authority to hear and
decide a legal controversy;‟ „the 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
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enquire into the facts, to apply the law, to pronounce the
judgment and to carry it into execution.
The question of what is jurisdiction came for consideration before the
Supreme Court in Official Trustees West Bengal V Sachindra
Nath Chatterjee, AIR 1969 SC 823. The Supreme Court after
relying on the Full Bench judgment in Hriday Nath Roy V
Ramchandra held as under:-
13. What is meant by jurisdiction? This question is
answered by Mukherjee Acting C.J., speaking for the full
bench of the Calcutta High Court in Hirday Nath Roy v.
Ramchandra BarnaSarma, AIR 1921 Cal 34 explained what
exactly is meant by jurisdiction. We can do not better than
to quote his words:
In the order of Reference to a Full Bench in the case of
Sukhlal v. Tara Chand, (1905) ILR 33 Cal 68 (FB), it was
stated that jurisdiction may be defined to be the power of a
Court to „hear and determine a cause, to adjudicate and
exercise any judicial power in relation to it:‟ in other
words, by jurisdiction is meant „the authority which a
"Court has to decide matters that are litigated before it or
to take cognizance of matters presented in a formal way for
its decision.‟ An examination of the cases in the books
discloses numerous attempts to define the term
„jurisdiction‟, which has been stated to be „the power to
hear and determine issues of law and fact‟ "the authority
by which the judicial officers take cognizance of and decide
causes"; „the authority to hear and decide a legal
controversy‟ "the 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
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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 jurisdiction and
jurisdiction of the subject matter is obviously of a
fundamental character
The Calcutta High Court in Sri Sushanta Malik @ Susanta Malik
V Srei Equipment Finance Limited and another, C.O. No. 136 of
2015 decided on 08th September, 2015 observed that jurisdiction may
have to be considered with reference to place, value and nature of the
subject matter. The classification of jurisdiction into territorial
jurisdiction, pecuniary jurisdiction and jurisdiction of the subject
matter is of a fundamental character.
13.2 It is reflecting from record and not in dispute that the
respondent no. 3 registered a ECIR vide ECIR/02/MZO/2007 dated
08.01.2007 under PMLA wherein Hassan Ali Khan and others at
Mumbai and 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
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Enforcement V Hassan Ali Khan & Others before the Special
Court (PMLA), Mumbai. The Special Court (PMLA), Mumbai after
taking cognizance issued process against Hassan Ali Khan and others
in these prosecution complaints for the offence under section 3 of the
PMLA. The respondent no. 3 conducted search at the residence of the
petitioner situated at Mumbai on 09.02.2016. The co-accused namely
Vishwanathan Venugopal along with Hassan Ali Khan in ECIR
dated08.01.2007 had filed a Writ Petition (Civil) No. 11771 of 2018
titled as Vishwanathan Venugopal V. Bureau of Immigration and
Others before this court which was disposed of vide order dated
11.03.2019 after observing that permission to travel can be granted
to him by the Special Judge (PMLA), Mumbai which is competent to
allow him to travel depending upon the facts and circumstances of
the case as Prosecution Complaints bearing no. 01/2011 and 24/2018
are pending before the Special Court (PMLA), Mumbai.
13.3 The respondent no. 4/CBI, EOW, Mumbai registered FIR
bearing no. RCD682016E0013 dated 19.09.2016 under section 120-B
read with section 420 of the Indian Penal Code, 1860 read with
Section 13(1) (d) of Prevention of Corruption Act, 1988 and
thereafter the respondent no. 2 considering nature of scheduled
offences and involvement of proceeds of crime of Rs. 36000 crores
initiated investigation under PMLA vide ECIR/HQ/02/2017 dated
24.01.2017 at Delhi. The petitioner was directed to appear in the
headquarter 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
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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.
RCD682016E0013 dated 19.09.2016. Although in pursuance of said
FIR, the respondent no. 2 initiated investigations under PMLA vide
ECIR/HQ/02/2017 dated 24.01.2017 at Delhi but the petitioner was
permitted to join investigation at Mumbai in pursuance of said ECIR.
Moreover, FIR bearing no. RCD682016E0013 dated 19.09.2016
which is genesis of registration of ECIR/HQ/02/2017 dated
24.01.2017 at Delhi was registered after issuance of LOC dated
10.02.2016.
13.5 Mere fact that the respondent no. 2 through the respondent no. 6
on the request of the respondent no. 3 issued LOC dared 10.02.2016
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at Delhi does not create or vest territorial jurisdiction in courts at
Delhi. No cause of action either wholly or in part has ever been
arisen in Delhi for filing the present petition. This court is lacking
territorial jurisdiction to entertain the present petition.
14. In the view of above discussion, the present petition along with
pending application if stand dismissed.
SUDHIR KUMAR JAIN
(JUDGE)
AUGUST 31, 2022
N/MYS
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