Mr. Surendra Kumar Sivapuram vs Union Of India And 4 Others
2022 Latest Caselaw 6448 Tel

      THE HONOURABLE SRI JUSTICE K.LAKSHMAN

               WRIT PETITION No.43531 OF 2022

ORDER:

Heard Sri Vikram Pooserla, learned counsel for the petitioner

representing Sri K.Keertivardhan Reddy, learned counsel for the

petitioner and Sri N.Nagendran, Special Public Prosecutor CBI

appearing for 4th respondent and Sri G.Srikanth Goud, learned

Standing Counsel for Central Government appearing for respondent

Nos.1 to 3. Perused the record.

2. In compliance of the order dated 02.11.2022, Sri

N.Nagendran, learned Special Public Prosecutor for CBI, on

instructions, would submit that the Investigating Officer in

Cr.No.RCO352020A0010 filed charge sheet in January, 2022 and the

same was returned with certain objections on 12.01.2022 i.e. CFSL

report and prosecution sanction against A.1 to A.3 were not filed.

Now they have obtained CFSL report. Sanction of prosecution in

respect of A.1 to A.3 rejected.

Therefore, they are going to re-submit the charge sheet against

the A.1 to A.3. According to him, it takes some time. He would

further submit that there are serious allegations against the petitioner

herein/A.10 that he has fabricated the property documents which were

given as collateral security towards loan obtained from 5th respondent-

Bank. The aforesaid facts would reveal that as on today, charge sheet

is not filed against the petitioner herein/A.10 in the aforesaid crime.

The said fact was also recorded by learned Principal Special Judge for

CBI Cases in the order dated 07.03.2022 in Crl.M.P.No.388 of 2022

in RC No.10A/2020-CBI/ACB/HYD.

3. According to the learned Special Public Prosecutor for CBI,

4th respondent has issued the aforesaid Look Out Circular (LOC)

considering the economic interest of India. Review was also

conducted in terms of the latest guidelines issued by the Ministry of

Home Affairs, Union of India, vide Office Memorandum, dated

22.02.2021. However, the said fact was not mentioned in the counter

filed by 4th respondent.

4. In view of the above facts and submissions, it is relevant to

note that in Menaka Gandhi Vs. Union of India1, it was held by the

Apex Court that no person can be deprived of his right to go abroad

unless there is a law enabling the State to do so and such law contains

1978(1)SCC 248

fair, reasonable and just procedure. Paragraph No.5 of the said

judgment is relevant and the same is extracted below:-

Thus, no person can be deprived of his right to, go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the tight to go abroad. It is clear from the provisions of the Passports, Act, 1967 that is lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law.

Therefore, such a right to travel abroad cannot be deprived except by

just, fair and reasonable procedure.

5. Referring to the said principle and also the principles laid

down by the Apex Court in several other judgments, considering the

guidelines issued by the Union of India from time to time, the

Division Bench of High Court of Punjab and Haryana at Chandigarh

in Noor Paul Vs. Union of India2 held that a right to travel abroad

cannot be deprived except by just, fair and reasonable procedure.

Without communicating the LOC to the subject of LOC, the

authorities cannot seek to enforce it as it would not have any effect in

law.

6. In the present case, according to the petitioner, he is

intending to travel abroad to Dubai, Tanzania, Zambia and

Madagascar etc., from 08.12.2022 to 22.12.2022 for the purpose of

business activities. Due to the pendency of the LOC against him, he is

not in a position to travel abroad. Therefore, he seeks suspension of

the aforesaid LOC issued against him so as to travel abroad.

7. In view of the above guidelines and also law laid down,

coming to the case on hand as discussed supra, this Court is not

inclined to suspend LOC issued against the petitioner herein but to

dispose the present writ petition with the following directions:-

(2022) SCC online P&H 1176

i. LOC issued by the respondent No.4 against the petitioner is suspended for the period from 08.12.2022 to 22.12.2022.

ii. The respondent Nos.4 and 5 shall inform/communicate this order to other respondents in terms of Office Memorandum, dated 22.02.2021.

iii. The petitioner shall inform his arrival/departure to the respondent Nos.4 and 5 in terms of the said Office Memorandum, dated 22.02.2021.

iv. Respondent No.4 - Originating Agency shall review LOC opened against the petitioner herein on quarterly and annual basis, submit proposals to delete LOC, if any, immediately after such a review in terms of the said Office Memorandum, dated 22.02.2021. They shall communicate the same to the petitioner herein.

v. Both the petitioner and the respondent Nos.4 and 5 are directed to comply with the guidelines issued by the Government of India vide Office Memorandum dated 22.02.2021.

vi. Liberty is granted to the respondents to take action against the petitioner herein for violation of any of the aforesaid conditions.

Accordingly this writ petition is disposed of. Consequently,

miscellaneous Petitions, if any, pending, shall also stand closed.

_________________ K. LAKSHMAN, J Date:05.12.2022

Note: Issue copy tomorrow (06.12.2022 b/o.vvr.