TaxTMI 
TaxTMI 
2021 (4) TMI 1274
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....d to contact Central Bureau of Investigation (CBI) on a particular mobile number. According to the Petitioner, when he made attempts to contact on the said mobile number, there was no response. On a series of communications sent to the Respondent No. 2-CBI, inquiring as to why he was detained, the Petitioner did not receive any reply. According to the Petitioner, he is constrained to file the present Writ Petition, since he does not wish to attempt to travel abroad without any clarity in the matter, as he might be further detained at the airport, which would have an adverse effect on his reputation. 4] The Petitioner is a former Chairman of State Bank of India (SBI). It is stated that after his retirement from the said position, he is on the board of directors of reputed multinational companies and also banks, including the Standard Chartered Bank, London, due to which he is required to frequently travel abroad. The Petitioner states that on 19/02/2018, he received a letter from a special investigation team of Respondent no. 2-CBI asking him to remain present at the office of CBI at New Delhi for examination. This was in connection with offence registered against the owner....
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..... Prasad Dhakephalkar, learned senior counsel appearing for the Petitioner emphasized in his submissions before this Court that the Petitioner is neither an accused in the F.I.R. concerning offence registered in connection with the Kingfisher Airlines and its owner Vijay Mallya nor is he an accused in any other case. It is submitted that in the absence of the Petitioner being arraigned as an accused, there is no propriety or jurisdiction with Respondent no. 2-CBI or Respondent no. 3 Union of India (UOI) to issue any executive order, much less a LOC, to impose travel restrictions on the Petitioner. It is further submitted that the Petitioner had promptly appeared before Respondent No. 2-CBI on 29/03/2018, pursuant to the notice received and he had answered and responded to the queries put to him during the said questioning. It was further submitted that even after 29/03/2018, the Petitioner had travelled abroad on business and personal trips. He was not restrained during the said trips and each time, he had returned back to India. 9] It was further submitted that the Petitioner is a person of high repute, having been Chairman of SBI and presently being on the board of directors o....
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....ounsel appearing for Respondent Nos. 2 and 3 submitted that Circulars and office memoranda issued from time to time by Respondent No. 3- UOI granted sufficient powers for issuance of LOC against the Petitioner. In the affidavit-in-reply fled before this court, it was stated that an LOC dated 4/09/2018 was issued against the petitioner and other high profile persons who were arraigned as accused, so as to see that they do not fee from India for escaping prosecution. It was further stated that in the examination of petitioner on 29/03/2018 before CBI, he had failed to give satisfactory answers in the context of his actions pertaining to sanctioning of loan facilities to Kingfisher Airlines. As the said case involved huge economic loss to the banks, including SBI, of which the petitioner was Chairman at the relevant time, it was necessary to ensure that the petitioner did not fee from the country, particularly when high profile accused persons in the said case had already fed. 12) The learned counsel for Respondent Nos. 2 and 3 placed reliance on Circulars and office memoranda dated 5/09/1979, 27/12/2000, 27/10/2010, 5/12/2017 and 12/10/2018, to support the impugned action taken ag....
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....puted banks, including Standard Chartered Bank, London. He is required to travel internationally for work related to such positions that he holds. He is also required to travel on personal visits as his daughter is living abroad. The question for consideration is, when the petitioner is not arraigned as an accused in any FIR and when despite his being questioned by Respondent No. 2 on 29/03/2018, he was permitted to travel freely in and out of India till September 2018, what was the reason that triggered issuance of LOC dated 4/09/2018 issued against him. It is significant that after 29.03.2018, the respondent No.2-CBI did not call the Petitioner for questioning till date. 16] In the affidavit-in-reply fled on behalf of Respondent No. 2, it has been repeatedly stated that the Petitioner had a major role to play as Chairman of SBI in disbursal of loan amounts to the Kingfisher Airlines. It is also stated that the Petitioner was chairman of the committee which permitted disbursal of such huge amounts of loan despite objections raised by junior officials of SBI. An attempt is made in the affidavit-in-reply to show as if the petitioner is deeply involved in the case pertaining to th....
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....ns and answered the same in the context of LOCs. Relevant portion of the said Judgment reads as follows: "The questions raised in the reference are as under: "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-out-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 questions are answered 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 Offer shall make a written request for LOC to the officer as notified by the circular of Mini....
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.... herein. After considering the purport of the said Circulars/office memoranda, the Madras High Court categorically found that a Writ Court exercising power under Article 226 of the Constitution of India could certainly judicially review the executive decision of issuance of LOCs and if found arbitrary, the same could be set aside. Similarly, in the case of Shriram Sankaran [cited supra] the Madras High Court set aside an LOC. 23] Thus, it becomes clear from the said Judgments relied upon by the learned senior counsel appearing for the Petitioner that issuance of LOC being an executive action based on aforementioned Circulars/ office memoranda, it is open to judicial review before the Writ Court. In this context, it would be relevant to refer to the said Circulars/office memoranda. A perusal of the same would show that the Union of India issued a letter/circular dated 5/09/1979 to all State Governments and Union Territory Administrations to put in place a mechanism for issuance of warning circulars to immigration authorities and such warnings be considered as look out notices, which would lapse after a period of one year. Office memorandum dated 27/12/2000 issued by Union of Indi....
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....nts in the office of the Protectorate of Emigrants or an officer not below the rank of Deputy Secretary of the Government of India, or xiii. Designated officer of Interpol. Further, LOCs can also be issued as per directions of any Criminal Court in India. c) The name and designation of the officer signing the Proforma for requesting, issuance of an LOC must invariably be mentioned without which the request for issuance of LOC would not be entertained. d) The contact details of the originator must be provided in column VI of the enclosed Proforma. The contact telephone/mobile number of the respective control room should also be mentioned to ensure proper communication of effective follow up action. e) Care must be taken by the originating agency to ensure that complete identifying particulars of the person, in respect of whom the LOC is to be opened are indicated in the proforma mentioned above. It should be noted that an LOC cannot be opened unless a minimum of three identifying parameters, as given in the enclosed Proforma, apart from sex and nationality, are available. However, LOC can also be issued if name and passport particulars of....
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....pon an assessment of the situation, and strictly in terms of the procedure outlined for the purpose. The immigration/emigration authorities will strictly go by the communication received from the officers authorized to open LoCs as detailed in the para 8 (b) above." 24] It is crucial that in the above quoted portion of the office memorandum dated 27/10/2010, it is specifed that recourse to issuance of LOC is to be taken in cognizable offences under the IPC or other penal laws. It is also specifed therein that in cases where there is no cognizable offence under the IPC or other penal laws, LOC subject cannot be detained/arrested or prevented from leaving the country. The agency which has caused the issuance of LOC can only request that it be informed about arrival/departure of the subject in such cases. This is of signifcance in the present Writ Petition. 25] Thereafter, office memorandum dated 5/12/2017 was issued, which provided for further contingencies in which LOCs could be issued. In the said office memorandum, it was provided as follows. "In exceptional cases, LOCs can be issued even in such cases, as would not be covered by the guidelines above, whereby depart....
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....uld insist upon, under clause (h) of the office memorandum dated 27.10.2010, was that it be informed about arrival/departure of the petitioner in connection with his trips abroad. It is not even the case of the respondents that if the petitioner is permitted to leave the country it would be detrimental to the sovereignty, security or integrity of India or bilateral relations with any country or to the strategic/economic interests of India. It is also not the case of the respondents that any amounts are to be recovered from the petitioner for which the Chairman of the SBI or any other public sector bank has made a request for issuance of LOC. 28) There can be no doubt that the petitioner needs to co-operate with Respondent No. 2-CBI in that regard. But, it cannot be said that Respondent No. 2 was entitled to impose travel restrictions to prevent the petitioner from travelling abroad. We are of the opinion that in the facts and circumstances of the present case, the Writ Petition deserves to be allowed, although certain conditions need to be imposed on the petitioner in the interest of Justice. 29] In view of above, Writ Petition is allowed in the following terms: (a) ....