Telangana High Court
Parijatha Mullagiri Alias Boga ... vs The Union Of India on 11 January, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.79 OF 2024
ORDER:
Heard Mr.Vishnuvardhan Reddy, learned Senior
Counsel representing Mr.J.Dheeraj Reddy, appearing on
behalf of the petitioner, Mr.Gadi Praveen Kumar,
learned Deputy Solicitor General of India appearing on
behalf of respondent Nos.1 and 2 and learned Special
Public Prosecutor for Central Bureau of Investigation
appearing on behalf of respondent No.3.
2. The petitioner approached the Court seeking
prayer as under:
"...to issue order, writ or direction more particularly one in the nature of Writ of Mandamus:-
a) Declaring the action of the Respondents in issuing LOC against the petitioner as illegal and contrary to law as an abuse of authority and process of law,
b) Direct the Respondents to withdraw the LOC issued against the petitioner,
c) And pass such other order(s) as this Hon'ble Court deems fit and proper in the interests of justice."
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3. The case of the petitioner in brief is that the petitioner is
Accused No.8 in Crime No.2 of 2019 on the file of Police
Station CBI, BSFB for offences registered under Section 406,
420, 468 and 471 read with 120-B IPC. The petitioner filed
quash petition vide Crl.P.No.6102 of 2019 on the file of this
Court while staying in the United States of America and
thereafter, the petitioner did not receive any summon/notice
from the respondents. On 14th November, 2023 the petitioner
had travelled to Hyderabad, India from United States of
America and also booked return flight tickets on 27.12.2023
and on the said date the petitioner was stopped by
respondent No.2 on the ground that there is LOC issued by
respondent No.3 pertaining to Crime No.2 of 2019 on the file
of PS, CBI, BSFB. Petitioner is SAP ERP Information
Technology consultant since 1996 with expertise in SAP BW,
BO, HANA ECC 6 in the areas of Sales and Distribution, PLM,
Financials, Warehouse Management (IM.WM, EWM), materials
Management and project Systems. Issuance of LOC against
the petitioner is illegal and hence, this writ petition is filed
seeking passing of appropriate orders directing the concerned
to withdraw the said LOC.
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4. Learned counsel appearing on behalf of
respondent No.3 placed reliance on the counter
affidavit, and in particular, paragraph Nos.19, 20, 25,
26 and 30, which read as under:
"19. It is further submitted that, the Petitioner/A-5 (A-8 in FIR) in conspiracy with other accused has induced Smt. Arikapudi Jagadeesh and Shri Kolusu Yella Rao to sign the GPA document 3862/2007 & sale deed No.3919/2010 without any title to the property. Shri.Murali Krishna Boga (A-2) as GPA holder of Petitioner/A-5 (A-8 in FIR) deposited the fabricated sale deed 3919/2010 and doc:617/2011 to the Bank with the intention to cheat the bank and availed the credit facilities, knowing very well that Petitioner/A-5 (A-8 in FIR) does not have any title to the property.
20. It is further submitted that, the Petitioner/A-5 (A-8 in FIR) has received an aggregate amount of Rs. 5.08 crores of loan proceeds directly and indirectly through various related parties. Further, Petitioner/A-5 (A-8 in FIR) was also actively involved in the decision-making process regarding the finances of the company as a CFO of the company.
25. In reply to Paragraph No. 4, it is respectfully brought to kind attention of this Hon'ble Court that the averments of the Petitioner/A-5 (A-8 in FIR) contain 4 WP_79_2024 SN,J
inaccuracies that do not present a full and faithful representation of the facts, which could potentially mislead the Hon'ble Court. It is respectfully submitted that the notice could not be issued to the Petitioner/A-5 (A-8 in FIR) because she was residing outside of Indian jurisdiction is indeed valid. In such a scenario, it is impractical and a breach of legal procedure to expect the petitioner to receive a summons or notice from the CBI/Respondent No.3 while residing in the United States of America. It is respectfully submitted that however, the CBI/Respondent No. 3 has issued a Letter Rogatory to the USA through Trial Court for conducting an investigation in that jurisdiction.
26. In reply to Paragraph Nos. 6 and 9, it is respectfully brought to kind attention of this Hon'ble Court that the averments of the Petitioner/A-5 (A-8 in FIR) contain inaccuracies that do not present a full and faithful representation of the facts, which could potentially mislead the Hon'ble Court. It is respectfully submitted that the Look Out Circular (LOC) is an instrument of confidentiality, embodying sensitive information that is not to be disclosed to the individual it concerns, namely the accused or the subject of the LOC. It is pertinent to understand that the LOC serves as a tool for surveillance, not an arrest warrant. Moreover, in accordance with the Order dated 25th September, 2019, the Hon'ble Court explicitly mandated that the accused should not be detained. This directive is to be 5 WP_79_2024 SN,J
scrupulously observed; however, it does not nullify the validity of the LOC, as the functions of the LOC remain operative and distinct from the act of arrest. The essence of the LOC's discretion is to alert law enforcement agencies to monitor and report movements without direct confrontation or apprehension of the named individual. Consequently, the LOC retains its status as a confidential document and cannot be shared with the accused.
30. It is further submitted that CBI/Respondent No.3 got issued Look Out Circular against the Petitioner/A-5 (A-8 in FIR), through Bureau of Immigration/Respondent No.2 to ensure the presence of accused for facing trial and to prevent the accused from fleeing away from the country and to unearth all the truth and facts of the case by effective investigation at the earliest. It is further submitted that the Petitioner/A-5 (A-8 in FIR) is highly influential and if she is allowed to go abroad, she may not co-operate with the investigation and securing her presence for the purpose of investigation and trial would become very difficult."
5. Learned counsel appearing on behalf of the 3rd
respondent placing reliance on the averments made in the
counter affidavit contends that the petitioner is not entitled 6 WP_79_2024 SN,J
for the relief as prayed for in the present writ petition and
hence, the writ petition is liable to be dismissed.
PERUSED THE RECORD.
6. The Apex Court in judgment reported in 2013 (15)
SCC page 570 in "Sumit Mehta v State of NCT of Delhi"
at paragraph 13 observed as under:
"The law presumes an accused to be innocent till his guilt is proved. As a presumable innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution of India."
7. The Apex Court in "MENAKA GANDHI VS. UNION
OF INDIA AND ANOTHER" reported in AIR 1978 SC 597,
and in "SATISH CHANDRA VERMA v. UNION OF INDIA
(UOI) AND OTHERS" reported in 2019 (2) SCC Online
SC 2048 very clearly observed that the right to travel
abroad is a part of a personal liberty and the right to
possess a passport etc., can only be curtailed in
accordance with law only and not on the subjective
satisfaction of anyone. The procedure must also be
just, fair and reasonable.
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8. The Apex Court way back in 1967, in Judgment
reported in AIR 1967 SC 1836, in "Satwant Singh
Sawhney v. D. Ramarathnam, Assistant Passport Officer
held that the right to travel abroad falls within the
scope of personal liberty enshrined under Article 21 of
the Constitution of India and that no person can be
deprived of his right to travel except according to the
procedure established by law.
9. The Apex Court in Vishambhar Saran v Bureau of
Immigration held that mere quantum of alleged default
of a loan by a citizen cannot be the basis for the
extreme measure of restricting the personal liberty of a
borrower/guarantor to travel inside or outside India
and accordingly set aside the LOCs issued against the
petitioners therein inter alia, on the ground that no
objective parameter were found for the issuance of
LOCs against the petitioners. Nothing detrimental to
the economic interest of India or exceptional was
established in the said case, it was held.
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It is observed at paras 62 to 66 in the Judgment
dated 31.01.2023 in W.P.A.No.6670 of 2022 in the said
case of "Vishambhar Saran v. Bureau of Immigration"
as under:
"62. Considering the materials on record, the averments in affidavit-in- opposition and documents annexed thereto, this Court comes to the conclusion that the conditions which must pre- exist as per the existing policy of the government for opening LOC, are absent in this case.
63. A bald assertion that the petitioner's departure would be detrimental to the economic interest of the country and the LOC must be issued in larger public interest, cannot be due satisfaction of the existing pre- conditions required to be fulfilled before the originator can make such a request. The existence of such pre-conditions and the manner in which the action of the petitioner fell within the exceptions or had affected the country's economic interest had to be demonstrated from the records. The apprehension should be well- founded, backed by reasons and also supported by evidence. The decision of Karnataka High Court in Dr. Bavaguthu Raghuram Shetty (supra) also does not apply in the facts of this case. With due respect, this Court does not agree with the conclusions arrived at in the said judgment,
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especially with regard to the comparison between the quantum of the loan and the annual budget of a state. Whether the outstanding loan with interest, would be more than the budgetary allocation of a particular state or not, in my opinion, is not one of the parameters to be considered.
64. The bank acted in arbitrary exercise of the power vested in making a request for opening LOC which was an attempt to curtail personal liberty and fundamental right of movement of a citizen guaranty by the Constitution of India.
65. The request of BOB for issuance of LOC dated 29 November, 2021 and all steps taken thereafter, if any, are set aside and quashed. The bank is at liberty to request the immigration authorities to intimate the entry and exit of the petitioner to and from the country.
66. Accordingly, the writ petition is allowed.
10. In the judgment dated 05.04.2022 in Noor Paul v
Union of India and others reported in 2022 SCC on P&H
3408 refering to an LoC issued to a guarantor it is
observed as under:
"(a) The action of the respondent No.2 Bank in seeking issuance of a LoC to prevent the petitioner from leaving the country on the ground that she 10 WP_79_2024 SN,J
was a guarantor to respondent No.5's loan and there was more than Rs.100 crores owed to respondent No.2 is arbitrary, illegal and violative of Article 21 of the Constitution of India and accordingly the same is set aside.
11. In the judgment dated 07.11.2022 in
W.P.A.No.9007 of 2022, in Suchita Dinodya v Union of
India reported in 2022 SCC Online Cal.3536 the High
Court of Calcutta held as under:
"The petitioner is not subjected to any criminal case, nor is the sovereignty or security or integrity of India to suffer ex facie if the petitioner leaves India. The mere quantum of the loan recoverable is Rs.73 crores, by itself cannot be sufficient to tag the claim to be 'for larger public interest' and/or deemed to affect' the economic interest of the country as a whole'. The LOC issued in respect of the petitioner is not justified at all and the W.P.A.No.9007 of 2022 is allowed thereby setting aside the LoC issued in respect of the petitioner."
12. In the judgment dated 02.06.2022 in Poonam Paul
v Union of India and others reported in 2022 SCC Online
P& H 1176 the High Court of Punjab and Haryana at 11 WP_79_2024 SN,J
Chandigarh, dealt with a case of issuance of circular
and observed as under:
"Merely looking at the quantum of loss caused to a banker, it cannot be presumed that there was a fraud committed by the borrower/guarantor more so when no criminal case alleging fraud has even been filed against the borrower/guarantor suspicion cannot take the place of proof and further clearly observed "the action of the respondent No.2 Bank in seeking issuance of an Loc to prevent the petitioner from leaving the country on the ground that she was a guarantor to respondent No.5's loan and there was more than Rs.100 crores owed to respondent No.2 is arbitrary illegal and violative of Article 21 of the Constitution of India.
13. In the judgment dated 05.04.2022 in Noor Paul v
Union of India and others reported in 2022 SCC on P&H
3408 referring to an LoC issued to a guarantor it is
observed as under:
"(a) The action of the respondent No.2 Bank in seeking issuance of a LoC to prevent the petitioner from leaving the country on the ground that she was a guarantor to respondent No.5's loan and there was more than Rs.100 crores owed to respondent No.2 is arbitrary, illegal and violative
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of Article 21 of the Constitution of India and accordingly the same is set aside.
14. In the case of Brij Bhushan Kathuria v Union of
India and others W.P.(C)3374/2021, reported in
Manu/DE/0737/2021, the Delhi High Court while
setting aside the LOC issued against the petitioner held
that the phrases such as "economic interest" or "larger
public interest" could not be expanded in a manner so
as to restrict an independent director who was in the
past associated with the company being investigated,
from traveling abroad, without any specific role being
attributed to him.
15. In the case of E.V.Perumal Samy Reddy v State,
reported in 2013 SCC online Mad 4092, the Madras High
Court while setting aside an LOC, observed as under:
"9. It is basic that merely because a person is involved in a criminal case, he is not denude of his Fundamental Rights. It is the fundamental of a person to move anywhere he likes including foreign countries. One's such personal freedom and liberty cannot be abridged.[See: Article 21 Constitution of India]. In the celebrated in MENAKA GANDHI Vs. UNION OF 13 WP_79_2024 SN,J
INDIA[AIR 1978 SC 597], the Hon'ble Supreme Court upheld the constitutional right of persons to go abroad. The phrase no one shall be deprived of his "life and liberty" except procedure established by law employed in Article 21, had deep and pervasive effect on fundamental right and human right. MENAKA GANTHI (supra) ushered a new era in the annals of Indian Human Rights Law. It had gone ahead of American concept of 'Due Process of Law'.
10. But, the fundamental right to move anywhere including foreign countries could be regulated. Where persons involved in criminal cases are wanted for investigation, for court cases, persons, who are anti- social elements their movements can be regulated. Need may arose to apprehend persons, who have ability to fly, flee away the country. So, L.O.C. orders are issued. It is an harmonius way out between a person's fundamental right and interest of the society/state. But, in any case, it must be fair and reasonable. It should not be indiscriminate without any reason or basis.
16. In the case of Rana Ayyub v Union of India and
another W.P. (CRL) 714/2022, reported in 2022 SCC
Online Del 961 the Delhi High Court at paragraphs 12
and 13 of the said judgment observed as under:
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"12. In the particular facts of the case, it becomes evident that the LOC was issued in haste and despite the absence of any precondition necessitating such a measure. An LOC is a coercive measure to make a person surrender and consequentially interferes with petitioner's right of personal liberty and free movement.
It is to be issued in cases where the accused is deliberately evading summons/arrest or where such person fails to appear in Court despite a Non-Bailable Warrant. In the instant case, there is no contradiction by the respondent to the submission of the petitioner that she has appeared on each and every date before the Investigating Agency when summoned, and hence, there is no cogent reason for presuming that the Petitioner would not appear before the Investigation Agency and hence, no case is made out for issuing the impugned LOC.
13. The impugned LOC is accordingly liable to be set aside as being devoid of merits as well as for infringing the Human right of the Petitioner to travel abroad and to exercise her freedom of speech and expression. For the reasons discussed above, the impugned LOC is set aside and quashed. However, a balance has to be struck qua the right of the investigation Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:04.04.2022 17:44:27 agency to investigate the instant matter as well as the 15 WP_79_2024 SN,J
fundamental right of the petitioner of movement and free speech.
17. In the case of Soumen Sarkar v State of Tripura,
represented by the Secretary, Home Department and
others reported in 2021 SCC online Tri 143, the High
Court of Tripura on perusal of MHA's Office
Memorandum dated 31.08.2010, stated that the
reasons for opening LOC must be given categorically. It
was held that LOCs could not be issued as a matter of
course, but only when reasons existed and the accused
deliberately evaded arrest or did not appear in the trial
Court.`
18. In the case of Karti P.Chidambaram v Bureau of
Immigration, reported in 2018 SCC online Mad 2229,
the Hon'ble Madras High Court observed as under:
"73. As observed above, the issuance of Look Out Circulars is governed by executive instructions as contained in the Office Memoranda Nos.25022/13/78-F1 dated 05.09.1979 and 25022/20/98-FIV dated 27.12.2000, as modified by Office Memorandum dated 27.10.2010. Such LOCs cannot be issued as a matter of course, but when reasons exist, where an accused 16 WP_79_2024 SN,J
deliberately evades arrest or does not appear in the trial Court. The argument of the learned Additional Solicitor General that a request for Look Out Circular could have been made in view of the inherent power of the investigating authority to secure attendance and cooperation of an accused is contrary to the aforesaid circulars and thus, not sustainable.
74. It is, in the view of this Court, too late in the day to contend that whether or not to issue an LOC, being a executive decision, the same is not subject to judicial review. It is now well settled that any decision, be it executive or quasi-judicial, is amenable to the power of judicial review of the writ Court under Article 226 of the Constitution of India, when such decision has adverse civil consequences. An LOC, which is a coercive measure to make a person surrender and consequentially interferes with his right of personal liberty and free movement, certainly has adverse civil consequences. This Court, therefore, holds that in exercise of power of judicial review under Article 226 of the Constitution, the writ Court can interfere with an LOC. The question is whether the writ Court should exercise its discretionary jurisdiction to interfere with the impugned LOC.
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19. This Court opines that the reasoning given in the
counter affidavit filed by Respondent No.3 that LoC had
been issued against the petitioner to ensure the
presence of the petitioner for ongoing investigations to
prevent evasion of the Judicial process by the petitioner
herein is without any justification. The fact as borne
on record is that petitioner is arrayed as Accused No.8
in Crime No.2 of 2019 on the file of P.S. CBI, BSFB for
offences registered under Section 406, 420, 468 & 471
read with 120-B IPC and the petitioner had filed
Criminal Petition No.6102 of 2019 on the file of Hon'ble
High Court for the State of Telangana, challenging
Crime No.02 of 2019 on the file of P.S. CBI, BSFB and
the Hon'ble Court vide its orders dated 25.09.2019
passed orders as under:-
"However, considering the peculiar facts and circumstances of the case, it is hereby directed that the investigation in the above case shall go on, but the Petitioner/Accused No.8 shall not be arrested till the submission of the final report under S.173(2) of Cr.P.C., subject to his extending full cooperation during investigation."
20. This Court opines that LoC can be issued in cases
where the accused is deliberately evading 18 WP_79_2024 SN,J
summons/arrest or did not appear in trial Court or
where such person fails to appear in Court despite a
Non-Bailable Warrant. In the instant case there is no
such ground raised by the respondent No.3. This Court
finds no objective parameter for the issuance of LoC
against the petitioner since there is no cogent reason
for presuming that the petitioner would not cooperate
with the investigation, since there is no cogent reason
for presuming that securing petitioner's presence for
the purpose of investigation and trial would become
very difficult. The pleas put forth by Respondent No.3
at paragraph No. 30 of the counter affidavit are
unsustainable and rejected. This Court opines that LoC
cannot be issued against the petitioner on the basis of
the grounds and pleas put forth by the respondent in
the Counter affidavit filed by the Respondent No.3 at
Paragraph Nos.19, 20, 25, 26 and 30 (referred to and
extracted above) and the said pleas are without any
justification and hence untenable.
21. The office Memorandum dated 22.02.2021 Sub-
paras I, J and L, read as under :
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"(i) In cases where there is no cognizable offence under IPC and 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.
(j) The LOC opened shall remain in force until and unless a deletion request is received by Bol from the Originator itself. No LOC shall be deleted automatically. Originating Agency must keep reviewing the LOCS opened at its behest on quarterly and annual basis and submit the proposals to delete the LOC, if any, immediately after such a review. The BOI should contact the LOC Originators through normal channels as well as through the online portal. In all cases where the person against whom LOC has been opened is no longer wanted by the Originating Agency or by Competent Court, the LOC deletion request must be conveyed to Bol immediately so that liberty of the Individual is not jeopardized.
(l) In exceptional cases, LOCs can be issued even in such cases, as 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 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 public interest at any given point in time.
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22. A bare perusal of Sub-para I of the guidelines
dated 22.02.2021 (referred to and extracted above)
specifically provide that in case where there is no
cognizable offence, LOC subject cannot be prevented
from leaving the country and the originating agency can
only request that they be informed about the arrival/
departure of the LOC subject.
23. A bare perusal of Sub-para J of Office
Memorandum dated 22.02.2021 (referred to and
extracted above) mandates that a LOC shall remain in
force until and unless a deletion request is received by
the Bureau of Immigration from the Originator and that
no LOC shall be deleted automatically. Although these
clauses cast an obligation on the originating agency to
review the LOC on a quarterly/annual basis and submit
proposals for deletion of the same, the same however is
not followed seriously by the authorities concerned. In
the present case the LOC has not been reviewed on
regular basis as mandated under rules.
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24. A bare perusal of Sub-para L of the circular dated
22.02.2021 (referred to and extracted above) clearly
indicates that LOCs could be issued in exceptional cases
where the departure of the person concerned will be
detrimental to the sovereignty, security and integrity of
India or is detrimental to the bilateral relations with
any country or to the strategic and/or economic
interests of India or that person may potentially
indulge in an act of terrorism or offence against the
State, if such person is allowed to leave or where travel
ought not be permitted in the larger public interest at
any given point of time. This Court is of the firm opinion
that lookout circular can be issued on the specific
grounds stated in Sub-para L of the OM dt.22.02.2021
(referred to and extracted above).
25. The reasons for issuing lookout circular against
the petitioner as evidenced as per the averments made
at para 30 of the counter affidavit filed by respondent
No.3 is to ensure the presence of the petitioner accused
for facing trial and to prevent the petitioner/accused
from fleeing away from the country and that the 22 WP_79_2024 SN,J
petitioner is highly influential and if the petitioner is
allowed to go abroad the petitioner may not cooperate
with the investigation and securing petitioner's
presence for the purpose of investigation and trial
would become very difficult. This Court opines on
assumptions and presumptions petitioner's
fundamental Rights cannot be denied to the petitioner,
in view of the fact as borne on record that the
petitioner had not been declared as fraudster or money
launderer.
26. Taking into consideration the aforesaid facts and
circumstances of the case and duly taking into
consideration the law laid down by the Apex Court and
various other High Courts in various judgments
pertaining to lookout circular and Right to Travel
(referred to and extracted above), this Court opines
that there is no justification in continuing the Look Out
Circular issued against the petitioner for years together
for the reasons mentioned in the counter affidavit and
hence the writ petition is allowed and the lookout 23 WP_79_2024 SN,J
circular issued against the Petitioner is set aside.
However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Writ
Petition, shall stand closed.
_____________________ SUREPALLI NANDA,J Date:11.01.2024.
Yvkr
