TaxTMI 
TaxTMI 
2022 (3) TMI 942
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....aid facts and circumstances stated herein above, it is hereby most respectfully prayed that this Hon'ble Court may:- i. Direct the suspension of LOC issued against the Petitioner from 14.03.2022 to 29.04.2022 and further allow her to travel to Dubai and Italy during the said period, in the interest of justice. ii. Any other order which the Hon'ble Court deems fit in the circumstances and in the interest of justice; It is prayed accordingly." 2. The submission of Mr. Hossain as noted by this Court in the order dated January 03, 2022 for deciding the said issue is reproduced as under:- "3. Today, Mr. Zoheb Hossain, learned counsel for the respondents submits that even though an email has been addressed to the concerned authorities to verify the aforesaid position, no response thereto has been received till date. 4. In the light of the aforesaid and taking judicial notice of the fact that new variant of Covid-19 i.e. Omicron is creating havoc in the entire world, I am of the view that the petitioner should not be denied the opportunity of being administered a booster dose in UAE, especially, when she had taken the earlier two doses of the Covid vaccination in the UA....
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....etitioner remained till January 28, 2019 when respondent No.1 made a statement before the learned Special Judge, CBI, Patiala House Courts, New Delhi that the same has been withdrawn by the respondent No.1. 4. On August 17, 2019, the CBI registered a case of default in repayment of loan against one Ratul Puri and his company under FIR No. RCBD1/2019/E/0006. The respondent on the basis of said FIR registered a new ECIR being ECIR/07/DZCR/2019 and initiated investigation against the petitioner and her husband. The respondent No.1 had also issued attachment orders under Section 5 of the Prevention of Money Laundering Act, 2002 ('PMLA', for short). 5. It is contended by Mr. Handoo that on October 12, 2020 the petitioner reached Mumbai airport to board her flight to Dubai, but was informed by the officials of respondent No.2 that she cannot travel as an LOC has been issued against her. The petitioner stated that she had been travelling without any hindrance since the year 2018 and even informed them about orders passed by the Special Judge, CBI, Rouse Avenue Courts, New Delhi, permitting her to travel abroad, but the officials of the respondent No.2 did not pay any heed to the same. I....
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....t concerned. That apart, he stated that the plea of alternate remedy cannot be based on an administrative circular, which is not a law as per Article 13 of the Constitution of India. 8. According to Mr. Handoo, by issuing the LOC, the right of the petitioner to travel has been curtailed. It cannot be anybody's case that right to travel is not a fundamental right of a citizen. In this regard, he has relied upon Maneka Gandhi v. Union of India 1978 (1) SCC 248, followed by the Supreme Court in Suresh Nanda v. CBI, 2008 3 SCC 674. The only way to curtail the right to travel of a citizen is under the provisions of the Passports Act, 1967, more specifically Sections 10A and 10B of the Act. No such proceedings have been initiated against the petitioner under the said Act for preventing her departure from India. Even in these provisions, there is a limitation of time of four weeks and eight weeks, that too after reasonable opportunity of being heard is given to a person. 9. In the instant case, the petitioner has been under the shadow of LOC from the year 2017, though the Court had granted permission, which has now been scuttled and overreached by the respondents in a colourable and arb....
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....gment of the Telangana High Court in Dasari Sudheer v. State of Andhra Pradesh, W.P.(C) No. 6711/2015 is one where a charge sheet was filed before the Court, the accused had surrendered before the Court and had taken bail, but the LOC was not revoked or taken back. The High Court, because the matter was pending before the Trial Court, directed the concerned Court to consider withdrawal of the LOC. In the present case, the petitioner in respect of the first LOC, after taking bail had also applied to the Trial Court for withdrawal of the LOC as the petitioner has been granted bail and was pivoted to the conditions before the Trial Court. Therefore, the Trial Court entertained the application and the earlier LOC was withdrawn. 13. Mr. Handoo stated that the Special Court would come in picture in post bail proceedings where the matter is pending before the Court in trial. The current writ petition is against an arbitrary action where there was no FIR, with no pre-bail conditions and without any matter pending before Special Court. The only remedy available for the petitioner is to approach this Court in writ jurisdiction. 14. According to Mr. Handoo, in the instant case, the Court co....
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....g judicial notice of the Omicron variant of COVID-19 creating havoc and the petitioner requesting to travel for a booster shot, all the earlier orders were passed when there was no complaint pending before the Special Court. In other words, there was no prosecution complaint pending in the case in which the impugned LOC is issued and therefore reliance on the earlier orders is misplaced. 18. Mr. Hossain stated that the cognizance has been taken of the prosecution compliant by the Court concerned by an order dated December 10, 2021 and the accused including the petitioner have been summoned for appearing on April 30, 2022. He stated that as the petitioner has now been summoned by the Court concerned, she must satisfy the Court concerned as to why the LOC issued against her need to be cancelled / rescinded. 19. According to Mr. Hossain, it is a settled law that on taking cognizance, the issue regarding cancellation of LOC is within the ambit of the pending criminal case before the Court concerned. In this regard he has relied upon a judgment of this Court in case of Yogender Chandolia v. Visesh Ravi & Ors., 2021 SCC Online Del 5540, more specifically paragraph 43 thereof. 20. Acco....
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....nvoked the issue of jurisdiction and alternate remedy. In this regard he has relied upon State of U.P. v. U.P. Rajya Ghanij Vikas Nigam and Ors.,2008 (12) SCC 675; Genpact Pvt. Ltd. v. Deputy Commissioner of Income Tax and Anr., 2019 SCC OnLine SC 1500 and Union Bank of India v. K. J. Jose & Ors., dated March 07, 2022 passed by the Kerala High Court in W.P.(C) 36086 of 2015. 23. A similar submission is made by Mr. Hossain by stating that the Madras High Court has refused to entertain a petition under Section 482 of the Cr.P.C. and directed the concerned party to approach the Court below to redress their grievances according to specific provisions under the Cr.P.C. seeking cancellation of NBWs in terms of Section 70(2) of the Cr.P.C. In this regard he has relied upon Francis Xavier v. Neelamegam (1995) SCC Online Mad 14. 24. Insofar as the plea of Mr. Handoo that the prayer of the petitioner for cancellation of LOC, cannot be granted by the Special Court and as such remedy is only available before this Court is concerned, Mr. Hossain has stated that the Criminal Courts in this country are equally responsible for protecting and enforcing fundamental rights of citizens. Every time a....
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....ea is that the bald allegations of mala fide deserve to be rejected. He stated that for the sake of consistency in view of the principles laid down by this Court in Sumer Singh Salkan (supra) as followed by the Madras High Court in S. Martin (supra) and the Telangana High Court in Dasari Sudheer (supra), the writ petition ought not to be entertained when an equally efficacious alternative remedy is available, and as such, the present petition deserves to be dismissed. 28. Having heard the learned counsel for the parties on the maintainability of the petition and on the application, at the outset, I may state that the writ petition has been filed by the petitioner challenging the LOC issued against her on the basis of ECIR/07/DZCR/2019. During the pendency of the writ petition till November 22, 2021 no compliant under Section 45 of the PMLA was filed by the respondent No.1 before the Special Court. It was in the reply filed on December 28, 2021 to CM APPL. 47740/2021, the respondents for the first time stated that a second supplementary prosecution complaint has been filed before Special Court, PMLA, Rouse Avenue Courts, New Delhi on December 22, 2021 against the petitioner and oth....
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....onstitution of India, practices self restraint when alternative remedy which is more efficacious is available to petitioner, is appealing. His plea that the Special Court is not barred in protecting the fundamental rights of a litigant in terms of the provisions of the Cr.P.C. is also appealing. That apart, it is important to note that this Court in Sumer Singh Salkan (supra) has in clear and unequivocal terms stated that LOC can be rescinded by the Trial Court where the case is pending. 31. Mr. Handoo has not disputed that the complaint is pending before the Special Court being Complaint Case No. 75/2019 where a supplementary prosecution complaint has been filed against the petitioner and the Special Court has taken cognizance of the same and issued a summoning order. Before November 21, 2021, there was no complaint filed, hence, there was no occasion for this Court to relegate the petitioner to the Special Court and as such the petition was entertained by this Court. As of today, the complaint having been filed in which summoning order has been issued, there is no reason for this Court to retain this petition. The said Court is seized of the facts of the case, including evidence....
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....it as well as the decision of Delhi High Court cited by the learned counsel for the petitioner in my view, would direct that it is open for the petitioner to approach the Investigating Officer and explain the circumstances and reasons why the Look Out Circular is required to be withdrawn. In the present case, petitioner has already made an appropriate representation before the Superintendent of Police as referred to above. However, apparently, the Superintendent of Police is not inclined to withdraw the said circular. The decision of Madras High Court referred to above in S. Martin v. Deputy Commissioner of Police (1) 2014 Law Suit (Madras) 250 dated 21.02.2014 directs in paras 45 and 46 that apart from approaching the Investigating Officer or the authority which has issued the circular, it is open for the petitioner to approach the Court where the case is pending, which has jurisdiction over the concerned police station seeking withdrawal or cancellation of LOC by filing necessary petition in accordance with law. 10. It is also held that the criminal Court's jurisdiction in cancellation of LOC or upholding the same is within similar jurisdiction as to cancellation of NBW and....