TaxTMI 
TaxTMI 
2018 (7) TMI 2000
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons was named as the third accused in the said FIR, the others named as accused being: (i)M/s.INX Media (P) Ltd., Mumbai, hereinafter referred to as INX Media , through the then Director, Indrani Mukherjea and others (first accused); (ii) M/s.INX News (P) Ltd., hereinafter referred to as INX News , through the then Director, Sh.Pratim Mukherjea @ Peter Mukherjea and others (second accused); (iii) M/s.Chess Management Services (P) Ltd., hereinafter referred to as CMS , represented through its Director, Sh.Karti P.Chidambaram, being the petitioner and others (fourth accused); (iv) M/s.Advantage Strategic Consulting (P) Ltd., hereinafter referred to as ASC , represented through its Director, Ms.Padma Vishwanathan @ Padma Bhaskararaman and others (fifth accused); and (v)other unknown officers of the Ministry of Finance, Government of India and other unknown persons. 4. INX Media, the first accused was apparently incorporated on 8.8.2006 under the provisions of the Companies Act, 1956, to carry on the business of creating, operating, managing and broadcasting a bouquet of television channels, including Hindi and ver....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f INX News without the specific approval of FIPB. The down stream investment included indirect foreign investment by the same foreign investors and generated more than Rs. 305 crores Foreign Direct Investment in INX Media as against the approved foreign inflow of Rs. 4.62 crores by issuance of shares to foreign investors at a premium of more than Rs. 800/- per share. 11. It is further alleged that in order to wriggle out of the situation without any punitive action, INX Media, upon receipt of the letter dated 31.5.2007 from the FIPB Unit, entered into a criminal conspiracy with the petitioner, son of the then Finance Minister of India and Promoter Director of CMS, to get the issues resolved/addressed amicably by influencing the officials of the FIPB of the Ministry of Finance, taking wrongful advantage of his relationship with the then Finance Minister. 12. Based on clarifications by CMS, INX Media, through its letter dated 26.6.2008, tried to justify its action on both the counts. It is alleged in the FIR that INX Media falsely claimed that the unapproved and unauthorized down stream investment was in accordance with the approval. INX Media further justified the excess forei....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was being controlled by the petitioner indirectly. In the FIR, it is further alleged that information discloses that invoices for approximately 3.5 crores were raised in favour of the INX Group in the name of other companies, in which the petitioner had sustainable interests either directly or indirectly. Such invoices were falsely raised for creation and acquisition of media content; consultancy in respect of market research; acquisition of content of various genre of audio or video, etc. INX Group, in its records, mentioned the purpose of payment of Rs. 10 lakhs to ASC as towards Management consultancy charges towards FIPB notification and clarification . 18. The FIR has been filed on the contention that the acts and omissions, as aforesaid, prima facie disclose commission of offence under Section 120-B read with Section 420 of the Indian Penal Code and Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against INX Media; INX News; the petitioner, Mr.Karti P.Chidambaram; CMS, through the petitioner, Mr.Karti P.Chidambaram, its Director and others; and ASC, through its Director, Smt. Padma Vishwanathan @ Padma Bhaskaraman and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the learned counsel was directed to file counter-affidavits, if any, in the meanwhile. However, when the writ petitions were taken up for hearing on 12.2.2018, the learned Additional Solicitor General submitted that the CBI had only filed counter-affidavit to the Miscellaneous Petition filed by the petitioner for leave to the petitioner to travel abroad being W.M.P.No.3031 of 2018 , but had not filed the counter-affidavit to the main writ petitions. The said Miscellaneous Petition for leave to travel has been heard and disposed of. 26. It appears that the CBI misunderstood the order dated 7.2.2018 of this Court, whereby this Court had directed that counter affidavits, if any, be filed within 12.2.2018. It was not our intention that counter affidavit be only filed to the Miscellaneous Petition. Moreover, as early as on 10.8.2017, the learned Single Judge had issued directions for counter affidavits in the main writ petitions. Be that as it may, for the ends of justice, we granted time to the respondents till 23.2.2018 to file counter affidavits in the main writ petition. Pursuant to the aforesaid direction, a counter-affidavit has duly been filed and the writ petitions are now re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....calling upon the petitioner to appear on 29.6.2017. 34. Mr.Gopal Subramanium submitted that the petitioner duly appeared before the CBI on 23.8.2017 and 28.8.2017. He has been cooperating with the investigation. 35. Mr.Gopal Subramanium argued that a person cannot be deprived of a fundamental right by executive fiat, in the absence of statutory sanction. In support of his submission, Mr.Gopal Subramanium cited Maneka Gandhi v. Union of India, reported in (1978) 1 SCC 248 and K.S.Puttaswamy v. Union of India, reported in (2017) 10 SCC 1. 36. Mr.Gopal Subramanium submitted that the respondents have not been able to disclose the authority of law under which the respondents were issuing the Look Out Circulars. Mr.Gopal Subramanium also argued that even assuming that executive orders could be issued to abrogate fundamental rights, it was clear from the guidelines which had been issued by the Central Government on 27.10.2010 that a Look Out Circular should not be issued mechanically, but must only be issued when good reasons exist and when a person is avoiding warrants of arrest or avoiding trial in a criminal case. 37. Mr.Gopal Subramanium emphasized that the expression ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r a judicial authority which can be said to be subject to the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India. 42. Appearing on behalf of the CBI, Mr.Rajagopalan, learned Additional Solicitor General has taken a preliminary objection to the writ petitions contending that this Court lacks territorial jurisdiction to entertain the same. The learned Additional Solicitor General submitted that this Court lacked territorial jurisdiction to entertain the writ petitions, as no part of cause of action could be said to have arisen within the jurisdiction of this Court. He submitted that it was not in dispute that the FIR was registered against the petitioner at New Delhi. 43. Citing the judgment of the Supreme Court in Dashrath Rupsingh Rathod v. State of Maharashtra, reported in (2014) 9 SCC 129, the learned Additional Solicitor General submitted that the civil concept of part of cause of action cannot be pari materia borrowed for ascertaining the jurisdiction in cases of criminal prosecution. 44. The judgment in Dashrath Rupsingh Rathod, supra, cited by the learned Additional Solicitor General has no application in this case, where the te....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd Alloys Limited v. Union of India and another, reported in (2004) 6 SCC 254, the Supreme Court held that keeping in view the expressions used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter . The Supreme Court, however, held that the Court might refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens only where a notice has been issued within its jurisdiction. However, in this case, in the FIR the offence is alleged to have taken place, inter alia, in Chennai, within the jurisdiction of this Court, where the petitioner resides and carries on business. The petitioner has been impleaded as accused in the FIR with his address in Chennai. 50. In Lt. Col. Khajoor Singh v. Union of India and another, reported in AIR 1961 SC 532, the Supreme Court held of course, as held in Kusum Ingots and Alloys Limited, supra, even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a de....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ry purpose of Section 41A and Section 37 of the Criminal Procedure Code would be defeated. 56. In support of his submission that Chapter IV B of the Criminal Procedure Code and in particular Section 37 read with Sections 41 and 41A should be given a wide interpretation, the learned Additional Solicitor General cited Badshah v. Urmila Badshah Godse and another, reported in (2014) 1 SCC 188, where the Supreme Court held: 20. Thus, while interpreting a statute the court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydon s Case which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction ut res magis valeat guam pereat, in such cases i.e. where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r under Circulars of the Ministry of Home Affairs vesting power on statutory bodies like the National Commission for Human Rights to issue Look Out Circular. 62. In a Writ Petition (Crl) No.1315 of 2008 being Sumer Singh Salkan v. Assistant Director and others, the High Court of Delhi passed a judgment and order dated 11.8.2010 formulating and answering certain questions relating to issuance of Look Out Circulars for the guidance of concerned agencies. In answer to the questions as to what were the categories of cases in which the Investigating agency could seek recourse to Look Out Circular, and under what circumstances, the High Court held that recourse to Look Out Circular can be taken by the Investigating agency in cognizable offences under Indian Penal Code or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial Court despite Non-Bailable warrant and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest. 63. Look Out Circulars are coercive measures to make a person surrender to the Investigating agency or the Court of law. In accordance with the order dated 26.7.2017 of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence; (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an off....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he opinion that he ought to be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice. 41B. Procedure of arrest and duties of officer making arrest. Every police officer while making an arrest shall (a) bear an accurate, visible and clear identification of his name which will facilitate easy identification; (b) prepare a memorandum of arrest which shall be (i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made; (ii) countersigned by the person arrested; and (c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest. 67. Section 41(2) clearly provides that subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2017, which was returnable on 29.06.2017, a further notice was issued on 04.07.2017 granting the petitioner time till 21.07.2017, shows that there was no immediate apprehension of his evading investigation, at least on 04.07.2017. There was, thus, no justification for issuance of the impugned LOC on 16.06.2017, the validity whereof has expired, in any case, after one year. 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 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, bein....