2025 (11) TMI 208 - HC - Companies Law

Suspension of Look-Out-Circular for US citizen abroad during petition pendency, subject to strict conditions to ensure availability

Inderpreet Singh Wadhwa Versus Union of India & Ors.

HC suspended the Look-Out-Circular issued against the foreign-resident petitioner during the pendency of the petition, subject to stringent conditions to ... Quashing of the Look-Out-Circular (LOC) opened against the petitioner (foreign resident) - whether the LOC ought to remain operative during the pendency of the present petition? Investigations against alleged diversion or misuse of public funds of Gensol Engineering - HELD THAT:- Admittedly, the petitioner is a citizen of USA, holding Passport No. 54XXXXX68, and is a resident of Switzerland. The record shows that he was issued summons dated 08.05.2025 to appear before the Investigating Officer on 19.05.2025. However, even before the said date of appearance, on 15.05.2025, the respondents directed issuance of the LOC against the petitioner. On the same date also, the petitioner had replied to the summons, denying any involvement in the alleged irregularities and seeking permission to appear virtually on account of his residence abroad. There is nothing on record to show that any response to his request was furnished by the respondents. It is true that the petitioner did not appear before the Investigating Officer earlier, but it is equally true that the respondents did not issue any further summons or call him for examination after he had complied with the directions of this Court. Even after the subsequent order dated 17.09.2025, wherein this Court directed that the petitioner shall appear as and when required, no further notice was issued to him by the Investigating Officer. This Court is of the considered view that while the investigation into the affairs of the concerned companies must be allowed to proceed unhindered and without obstruction, the petitioner’s liberty and professional as well as personal life cannot be placed in indefinite suspension, particularly when it is yet to be determined whether he will ultimately be treated as an accused in the matter. The petitioner is admittedly a foreign national – a citizen of USA – who had arrived in India on 28.07.2025 to visit his family, and ever since, he has not been permitted to leave the country owing to the subsistence of the impugned LOC. This Court must, therefore, carefully balance the competing considerations, i.e. on one hand, the legitimate interest of the investigating authorities to ensure the petitioner’s availability for cooperation in the ongoing inquiry, and on the other, the petitioner’s right, as a foreign national, to lead his ordinary life and discharge his family and professional obligations. The apprehension of the respondents that the petitioner may flee the country and not return to join the investigation, though not unfounded, can be sufficiently safeguarded by imposing appropriate and stringent conditions. This Court finds it appropriate to suspend the operation of the impugned LOC during the pendency of the present petition, subject to the conditions imposed - application disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether the Look-Out-Circular (LOC) issued against the petitioner in the course of an investigation under Section 210(1)(c) of the Companies Act, 2013, ought to be suspended during the pendency of the writ petition. 2. Whether issuance and continuation of the LOC, in the factual matrix where the petitioner is a foreign national/resident of a foreign country and a non-executive/independent director, is justified as a preventive measure in the absence of a registered FIR or completed investigation. 3. Whether the petitioner's alleged failure to personally appear on an earlier summons and subsequent cooperation post judicial intervention precludes suspension of the LOC. 4. What conditions, if any, are appropriate to balance the investigating authority's interest in securing attendance and the petitioner's liberty and professional/family obligations abroad. ISSUE-WISE DETAILED ANALYSIS Issue 1: Whether the LOC should be suspended during pendency of the writ petition Legal framework: The Court considered the procedural scheme under Section 210(1)(c) of the Companies Act, powers of investigation by Inspectors/ROCs, the administrative Office Memoranda governing issuance of LOCs by Ministry of Home Affairs, and constitutional protections (Article 21 for persons generally and limitations on Article 19(1)(g) for foreigners as noted by respondents). Precedent Treatment: The petitioner relied on judicial precedents (unnamed in the record) limiting LOC issuance to cognizable offences or where substantiated risk of absconding exists; the respondents relied on MHA Office Memorandum permitting preventive measures in matters of significant economic interest. The Court deferred definitive adjudication of those rival contentions on legality of the LOC to the final hearing of the main writ petition. Interpretation and reasoning: The Court confined its present inquiry to whether the LOC should continue during pendency of the petition. It found the investigation to be at a preliminary stage, no FIR has been registered, and the petitioner's role remains unascertained. The Court balanced the investigating authority's legitimate interest against the petitioner's right to liberty and to discharge family and professional obligations abroad, noting the petitioner voluntarily entered India and demonstrated cooperation after judicial direction. Ratio vs. Obiter: Ratio - the Court held that, on the facts before it, suspension of LOC during pendency is appropriate subject to stringent conditions to secure attendance and cooperation. Obiter - broader observations on the ultimate legality of LOC issuance and the scope of MHA memoranda were expressly reserved for final adjudication. Conclusion: The LOC was suspended for the limited purpose of the interim application, subject to specified conditions (security of Rs.25 crores by FDR/Bank Guarantee; Rs.5 crores surety by an Indian-resident family member; continued cooperation; advance travel intimation; provision of contact and residential details abroad). Issue 2: Validity of issuing LOC against a foreign national/non-executive director in an ongoing regulatory investigation Legal framework: Consideration turned on the administrative criteria for issuing LOCs (MHA Office Memoranda), classification of offences under the Companies Act (contention whether offences under Section 447 are cognizable), and the investigatory powers of ROCs/Inspectors under Section 210 of the Companies Act. Precedent Treatment: The Court noted reliance by parties on precedents but did not resolve conflicts. It recorded the petitioner's plea that LOCs should be limited to cognizable offences and the respondents' counter that serious economic offences justify preventive measures; determination of those legal questions was postponed to the main hearing. Interpretation and reasoning: The Court observed that the present investigation is preliminary, complex and layered, and that no FIR or SFIO reference has been made so far. Given the unresolved nature of the legal question whether the present allegations attract cognizability warranting an LOC, the Court declined to decide that issue at the interim stage and instead addressed only the question of interim restraint. Ratio vs. Obiter: Obiter - the Court's recording of competing positions on cognizability and the MHA memoranda; these legal issues were expressly reserved and not decided. Conclusion: Legality and validity of issuing LOC against the petitioner remain open for final adjudication; interim suspension does not reflect any final ruling on that question. Issue 3: Effect of petitioner's prior non-appearance and subsequent cooperation on entitlement to suspension Legal framework: Principles governing interim relief balancing liberty and investigation, and the relevance of prior conduct (non-appearance) to granting interim suspension of administrative restraints. Precedent Treatment: Parties argued on the weight to be given to prior non-compliance; the Court assessed conduct and timing rather than invoking or distinguishing specific precedents. Interpretation and reasoning: The Court acknowledged that the petitioner did not attend the initial summons but emphasized that the LOC was issued before the scheduled date of appearance and that the petitioner replied to the summons seeking virtual appearance. Importantly, after judicial direction, the petitioner appeared before the Investigating Officer and furnished documents, and no further summons had been issued. The Court treated the petitioner's subsequent cooperation as a material factor in favor of suspension, while noting that cooperation alone does not automatically entitle one to suspension in all cases; the stage of investigation and risk of absconding remain relevant. Ratio vs. Obiter: Ratio - where a foreign national voluntarily enters India, demonstrates cooperation after judicial direction, and no further summons are issued, prior non-appearance does not preclude granting interim suspension provided adequate safeguards are imposed. Conclusion: The petitioner's post-intervention cooperation weighed in favor of suspension, subject to stringent conditions to address any real risk of absconding. Issue 4: Appropriate conditions to secure investigative interests while permitting travel Legal framework: Interim relief principles - proportionality, necessity, and feasibility of conditions to balance individual liberty and public interest in investigation. Precedent Treatment: The Court fashioned a conditions-based order rather than rely on a categorical rule; no specific precedents were adjudicated or overruled in formulating conditions. Interpretation and reasoning: To mitigate flight risk and ensure continued availability, the Court directed substantial financial security and surety, obligations to cooperate with prior notice for physical presence (three weeks), advance itinerary disclosure, and furnishing foreign contact and residential details. The Court reasoned that these measures appropriately protect investigatory interests while avoiding indefinite restraint of a foreign national who had voluntarily entered India. Ratio vs. Obiter: Ratio - suspension of restraining administrative measures may be granted subject to pre-emptive and enforceable conditions (security/surety, cooperation, communication of travel plans, contact details) that secure attendance and access to the investigatory process. Conclusion: The suspended LOC was conditioned on (i) Rs.25 crores security by FDR/Bank Guarantee; (ii) Rs.5 crores surety by an Indian-resident family member (FDR or immovable property); (iii) continued cooperation and three weeks' prior notice for physical presence; (iv) advance itinerary disclosure; and (v) provision and upkeep of foreign contact and residential details. Final and Procedural Clarifications The Court expressly confined its observations to adjudication of the interim application and clarified that nothing in the interim order constitutes an opinion on the merits, legality or validity of the LOC, or on contentions to be considered in the main writ petition; those issues remain open for adjudication at the appropriate stage.