Delhi District Court
Sh. Sukhad Chaturvedi vs Sh. Vikas Chaudhary on 7 September, 2019
IN THE COURT OF Dr. KAMINI LAU: ADDITIONAL
SESSIONS JUDGEII (CENTRAL): TIS HAZARI COURTS:
DELHI
Sessions Case No. 47/2019
Registration No. 538/2019
CNR No. DLCT010116932019
Sh. Sukhad Chaturvedi, ADIT
Income Tax Department, Unit1 (4),
O/O Pr. Director of Income Tax (Inv.1),
Civic Center, New Delhi
....... Revisionist
Versus
Sh. Vikas Chaudhary
R/o House No. E12/3,
Vasant Vihar, New Delhi
....... Respondent
Date of Institution: 30.08.2019
Judgment reserved on: 02.09.2019
Judgment pronounced on: 07.09.2019
JUDGMENT:
(1) This Criminal Revision impugns the order dated 27.08.2019 and 29.08.2019 passed by the Ld. ACMM (Special Acts), Delhi in M. No. 484/2019 by way of which order the Ld. ACMM allowed the application filed by the respondent Vikas Chaudhary to travel to United Kingdom by suspending the Look Out Circular till 31.10.2019.
Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 1 of 23 (2) Various grounds have been raised in the revision petition by the Additional Director Income Tax, the Revisionist, which are not being repeated for the sake of brevity. The respondent has chosen not to file any reply to the revision petition and his counsel has filed detailed written submissions and also advanced oral arguments. (3) However, before coming to the grounds raised in the revision petition, the brief facts of the case are as under:
(4) A Miscellaneous Application No. 484/2019 had been filed before the Ld. ACMM (Special Acts) under the title Vikas Chaudhary Vs. ITO by way of which the respondent Vikas Chaudhary sought permission to travel to United Kingdom and Dubai and for suspension to of LookOut Circular issued by the Income Tax Department. In the said application it was averred that the applicant Vikas Chaudhary wishes to meet his daughter for her job purposes and to schedule the interview with employer etc. in Dubai. According to the applicant Vikas Chaudhary, he was to meet certain clients for his business purposes and finalize the business related deals. It was averred that there are few clients of the applicant from whom the business related transaction has been in discussion for many days and is pending for finalizing, therefore, it was important for him to travel to UK. Ld. Counsel for applicant had pointed out before the Ld. ACMM (Special Act), that the Income Tax Department had mischievously issued the Look Out Circular against the applicant after a search was conducted on 06.02.2019 at the premises of the applicant without their being any reasonable cause to apprehend absconding of the applicant. He also Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 2 of 23 pointed out that the Income Tax Office office has no incriminating document or evidence against the applicant and despite applicant joining the investigation, the Look Out Circular was issued. Ld. Counsel further pointed out to the Ld. ACMM that the Court of ACMM (Special Acts) has the jurisdiction to entertain the said application as it is the only Court in Territory of Delhi dealing with criminal cases filed by the Income Tax department. It was argued that that applicant is a businessman and has to travel to various national and international Look Out Circularations for his business requirement and by issuance of the Look Out Circular, the movement of applicant was unreasonably, arbitrarily, and illegally restricted by the respondent.
It was prayed that the applicant Vikas Chaudhary be allowed to travel outside India for business purpose and to suspend the Look Out Circular against the applicant. It was also argued that by continuation of illegal look out circular, the fundamental rights of applicant to move freely without any restriction are being infringed. In support of his averments, Ld. Counsel for the applicant Vikas Chaudhary had placed his reliance upon the judgments in the case of Menka Gandhi Vs. Union of India, reported in AIR 1978 SC 597; Nitin Sandesara Vs. Directorate of enforcement & ors., WP (C) No. 7559/2017 decided by Delhi High Court on 29.08.2017; Karti P. Chidambaram Vs. FRRO Bureau of Immigration reported in 2018 SCC Online Mad. 2229. (5) The Ld. ACMM (Special Acts) upon considering the contentions of the parties, passed a detailed order on 27.08.2019, relevant portion of which is reproduced as under:
Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 3 of 23 "....... 17. Admittedly, applicant is having substantial financial interest in India apart from his family residing in India and the fact that applicant has not escaped even after search was conducted at his premises shows that the bonafide of applicant in joining the investigation. During arguments Ld. Counsel for applicant has submitted that even if applicant is allowed to travel abroad, the assessment proceedings before the concerned officer shall not be hampered with and applicant shall be represented in all proceedings either in person or through Authorized Representative before the Assessment Authority and there shall not be any occasion that proceedings are hampered due to absence of applicant.
18. In view of discussion and material placed on record, I am satisfied that Look Out Circular issued against the applicant deserves to be rescinded as it has failed to pass the triple test of reasonableness of the procedure adopted on the criterion of Article 14,19 and 21 of the Constitution of India apart from the various case law discussed above. The right to travel abroad alongwith right to earn livelihood by engaging in any occupation, trade or profession are fundamental rights and action by the executive/respondents is primafacie violative of the fundamental rights discussed above. However, since the respondents have apprehension that the applicant may tamper with evidence or abscond after leaving the country or tamper with the evidence, I am of the opinion that certain conditions should be up upon the applicant for allowing him to travel abroad.
1. The plea of applicant for traveling to Dubai for arranging for job interview of his daughter does not appears to be any substance as admittedly his daughter is major and had completed her graduation from United Kingdom and therefore, she can very well manage her job Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 4 of 23 interview, if any. Moreover, for making travel and stay arrangement for daughter of applicant at Dubai, the other family members against whom there are no travel restrictions can visit and arrange the needful. However, after perusal of the record which includes the email communication with M/s Holy Group Ltd., I am satisfied that presence of applicant for business dealings at U.K is genuine and the submission that other directors can visit U.K. for said business dealings is akin to putting too much restrictions on the manner in which legitimate business of applicant is dealt with. It is common knowledge that each person has unique skills for dealings with other and no two directors/officials can be equated upon and, therefore, the submission of Ld. SPP that other directors can visit U.K for the said business dealing is misplaced.
19. Accordingly, keeping in view, the fact and circumstances, the applicant is allowed to travel to UK subject to following conditions as under:
(i) That applicant shall furnish security in the form of bank guarantee in the sum of Rs. 25 lacs or in the alternative an FDR in the like amount.
(ii) That applicant shall furnish a detailed affidavit with advance copy to Income Tax Department, disclosing his detailed programme including his travel itinerary,stay at various stations abroad and telephone numbers and email I.D. and residential address before his departure.
(iii) That applicant will file complete self attested copy of his passport alongwith copy of visa with the assessing officer on his return from abroad.
Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 5 of 23
(iv) The applicant will not contact/influence the witnesses.
(v) In case of any of the above conditions are violated, the bank guarantee/FDR will be forfeited to the state.
(vi) The applicant shall not visit Dubai till the conclusion of assessment proceedings. In case the visit to Dubai is required for business purpose, the applicant shall seek prior permission from the court.
20. In view of the fact, the application filed by the applicant Vikas Chaudhary is accordingly disposed off. Look Out Circular (Look Out Circular), if issued shall remain suspended till 31.10.2019....."
(6) Thereafter on 29.08.2019 another application was filed by the applicant Vikas Chaudhary praying to the Court to call for the Status Report from Immigration Department and Income Tax department regarding the suspension/ removal of name from the data base maintained with Immigration Officers, upon which the SPP for the Income Tax Department was called to the Court and copy of the application was handed over to him. It was mentioned in the said application that despite repeated request to the Immigration Officials, the applicant Vikas Chaudhary was declined/ refused the boarding in Air India Flight No. AI161 from Delhi to London, which is despite the fact that the Look Out Circular against the applicant was suspended vide order dated 27.08.2019 till 31.10.2019. It was averred that the applicant Vikas Chaudhary has complied with all the conditions mentioned in the order dated 27.08.2019 despite which he was denied Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 6 of 23 the boarding and the concerned Immigration Officials had shown ignorance of the order dated 27.08.2019.
(7) The Ld. SPP for the Income Tax Department pointed out before the Ld. ACMM (Special Acts) that he had communicated the Immigration Officers to act as per the court orders and no official had stated that they were ignorant of the order dated 27.08.2019 and hence the Ld. SPP opposed the averments made in the application. The Ld. ACMM (Special Acts) then passed the impugned order dated 29.08.2019, relevant portion of which is reproduced as under:
"........ 8. Vide order dated 27.08.2019, the Look Out Circular issued by the respondent department against the applicant was suspended till 31.10.2019 with the permission to visit to U.K.
9. The applicant has filed the compliance affidavit on 27.08.2019 alongwith FDR of Rs. 25 lacs which were taken on record.
10. It appears that the order dated 27.08.2019 has not reached the joint Director, Immigration Office, IB Office, R. K. Puram, New Delhi which resulted into not allowing the applicant to board the flight to London.
11. Hence, the order dated 27.08.19 alongwith copy of today's order be sent to Joint joint Director, Immigration Office, IB Office, R. K. Puram, New Delhi for compliance. The copy of the order dated 27.08.2019 be also served upon Sukhad Chaturvedi, ADIT, in the office of the principal DIT, Inv1, New Delhi for information and compliance with the direction to inform the concerned authorities about the suspension of Look Out Circular against the applicant Vikas Chaudhary S/o Sh. K.M.L. Chaudhary R/o E12/3, Vasant Vihar, New Delhi.
Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 7 of 23
12. In view of the above, application stands disposed off accordingly. Copy of order be given dasti to both the parties for necessary information and compliance...."
(8) Now being aggrieved by the aforesaid orders dated 29.08.2019 and 29.08.2019, the Additional Director, Income Tax has approached this Court in the present revision petition for setting aside the order dated 27.08.2019 and 29.08.2019 on the ground of enormity of the alleged violations and impact which they have on the national economy. It is alleged that the respondent Vikas Chaudhary is indulging into various criminal activities involving cognizable offences punishable under the provisions of Black Money Act, Prevention of Money Laundering Act and other Acts where the punishment prescribed is seven to ten years. It is submitted that based upon the gravity of the offences and necessity of further investigations, the Look Out Circular had been issued on 25.02.2019 in order to restrain Vikas Chaudhary from travelling abroad. It is further submitted that pursuant to the search and seizure operation, there was a necessity to issue Look Out Circular against Vikas Chaudhary as he was not cooperating in the investigations and was intending to flee from the country. In this regard, reliance has been placed upon the various summons and communications issued to him and other violators from time to time. It is further submitted that Vikas Chaudhary was not cooperating during the course of post search investigations; had failed to produce the key persons to avoid the investigation proceedings; had obstructed the Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 8 of 23 investigations and also created a paper trail to mislead the Court for lifting of Look Out Circular. It is submitted that the order of the Ld. ACMM (Special Acts) dated 27.08.2019 and 29.08.2019 are devoid of jurisdiction. It is further submitted that the Ld. ACMM (Special Acts) has failed to consider the gravity of offence, flight risk and tampering with the evidence.
(9) I have considered the rival contentions. During the course of arguments, this court had directed both the parties to file detailed written synopsis on the following aspects:
Nature of alleged violations.
The details of the statue / law in which the applicant is facing investigations.
The details of the alleged offences (whether cognizable or noncognizable).
Justification with regard to the request made by the respondent.
(10) Pursuant to the same, both the parties have filed their detailed written memorandum of arguments.
(11) Ld. Counsel for the Revisionist has opposed the suspension of Look Out Circular on various grounds as under:
That the unaccounted income has been earned by the respondent Vikas Chowdhary in his business entities through Fraudulent Export activities whereby total export sales shown was for Rs. 1300 Crores and payment was received against Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 9 of 23 such fake export invoices through Hawala operators in the form of Telegraphic Transfers against unaccounted cash given to them.
That one of the Hawala Operator Avtar Singh Kochar has admitted in his statement that he had transferred around Rs. 20 Crores from Dubai based entities Tirupati General Trading LLC, Diastone Trading FZE and Pilot Trading LLC and also received more than Rs.250 Crores from M/s Maximus International General Trading LLC which is controlled and managed by one Manoj Garg through dummy directors Amit Aggarwal and Sunil Sanghavi who is also a well known Hawala Operator and had been arrested recently by CBI and DRI.
That fraudulent purchases have been found entered in the books of accounts through bogus invoices and there are evidences to show that Vikas Choudhary has made actual purchases in cash of goods ranging between Rs.5 to Rs. 40 per unit, which are not recorded in the books of accounts and the same goods are exported for prices ranging between Rs.300 to 700 per unit and purchase invoices against these goods are arranged from other vendors for the similar amount as sales invoices so as to defraud the revenue and as per the records, the respondent Vikas Chaudhary made total purchases of Rs.1200 Crores in books in 2 years in his three entities M/s Aastha Apparels Pvt. Ltd., M/s JBN Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 10 of 23 Apparels Pvt. Ltd. and M/s JBB Apparels Pvt. Ltd. and bills against them have been received mostly from Ludhiana based entities which are not real purchases and only invoices have been raised.
That no physical invoices /vouchers and supporting transportation evidences were found for purchases made and entered in the books of accounts for Rs. 1200 crores during the course of search from any of the premises nor produced by the respondent Vikas Chowdhary during post search investigation even after being called for specifically. That there has been trade based Money Laundering through round tripping with the connivance of wellknown Hawala operator Avtar Singh Kochar and Manoj Garg and there has been claim of bogus export incentives around Rs.150 Crores against fake export invoices in his above three entities. That the respondent Vikas Chaudhary also indulged in sharing of export incentive/ benefit/ profit through clandestine dealings on behalf of other exporters for whom he acts as Custom House Agent and such parties have been introduced to him through the Hawala Operator Manoj Garg. That preliminary analysis of the evidences reveals that the respondent Vikas Choudhary has earned unaccounted income through sharing of fraudulent export incentives around Rs.150 Crores and Manoj Garg has been named in International Hawala Transactions and was arrested by the Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 11 of 23 DRI on 27.02.2016 which Manoj Garg is a Hong Kong based Indian who opened a front company in Dubai responsible for Money Laundering against underinvoicing export and over invoicing against import.
That there is a company under the name of M/s. Maximus International General Trading LLC from whom significant amount of money is received by the respondent Vikas Chowdhary's Group Companies, the said company whose Directors are Amit Aggarwal and Sunil Shanghavi (as is evident on the public domain) being the buyer.
That Vikas Chowdhary's phone had the details about investing in a company (property) in Dubai namely "Centurion International Ltd." wherein the seller was one Amit Aggarwal who was holder of 60% shares in the said company and the respondent Vikas Chaudhary had received payment of Rs.259 Crores against sales of Rs.358 Crores from the company managed and operated by Manoj Garg through Dummy directors like Amit Aggarwal.
That unaccounted investment has been made by the respondent Vikas Chaudhary for purchase of foreign property in the name of his daughter Ms. Aastha Chowdhary. He has made investment over Rs.30 Crores as per draft agreement and as per evidences found from whatsapp, payment has been made against purchase of foreign property. Reference has been made to further investigations from Dubai through Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 12 of 23 Foreign Trade & Taxes Research, CBDT, Delhi.
That the evidences regarding investment in property were also called from the assessee through questionnaire dated 12.06.2019 but no reply regarding unaccounted investment in Dubai based property has been received till date.
That there has been unaccounted investment made in foreign companies incorporated in Dubai M/s Aastha Apparels FZE and M/s Committed Logistics FZE which names are similar to his Indian companies.
That Share Capital received in M/s Aastha Apparels Pvt Ltd from fictitious and dummy entities have now been strike off to Rs.10 Crores and that receipt and payment of unaccounted cash in Dubai is to determined after analyzing the details.
(12) It is vehemently argued that the Ld. Counsel has further argued that the respondent is noncooperating with the ongoing investigations and had not appeared to make his statement and is influencing his employees not to make statement before the Income Tax Authorities despite service of summons. It is argued that the respondent is involved in multi crore fraudulent activities and is using his influence every where to stall the ongoing investigations and if he is permitted to leave the Country, he will cause disappearance of evidence by either removing the evidence or by tampering with the evidences which are available abroad. It is argued that the offences committed by respondent are against the economic interest of country as the Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 13 of 23 Government Exchequer has suffered loss of revenue running into multi crores.
(13) In so far as the respondent is concerned, it is argued by the Ld. Counsel that the present revision is not maintainable as the impugned order is an interLook Out Circularutory in nature. Reference in this regard has been made on the judgments in the case of Sumer Singh Salkan Vs. Asstt. Director & Ors., 2010 (4) JCC 2401; M. Kutty Vs. Arihant Finance (India) Private Ltd., 1997 Cr.L.J. 4373; Amarnath Vs. State of Haryana, 1977 Crl. L.J. 2891; V.C. Shukla vs. State Vs. 1980 Crl. L.J. 690; N. Tunkhankhup Vs. Narcotic Control Bureau, 2011 (1) JCC 4. It is further argued that the Look Out circular can be issued only for cognizable offences. Reference in this regard is made to the provisions of Section 279A of Income Tax Act; Section 61 of Benami Transaction (Prohibition) Amendment Act, 2016; Section 49 to 53 of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 and also upon the judgment in the case of State Vs. Shashi Bala Subramaniam, 2006 (13) SCC 252. Ld. Counsel has further argued that it is an admitted case of the revisionist that the respondent Vikas Chaudhary has joined the investigations on 14.02.2019, 18.02.2019 and also submitted replies/ answers to the questionnaire dated 12.06.2019 on 20.08.2019. Reliance is also placed upon the judgments in the case of State of Gujarat Vs. Sayamlal Mohan Lal Choksi, 1965 (2) Cri.L.J. 256 and Afzal Jaffer Khan Vs. the Officer CBI, ACB Office & Ors., Crl. Writ Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 14 of 23 Petition No. 263 of 2019. It is pointed out that the respondent is a businessman and he has to travel abroad for that purpose and hence the issuance of Look Out Circular has caused / causing great hardship to him. In this regard, reference is made to the case of G. Vetrivel Sami Vs. CBI, 2012 (2) JCC 1179. Ld. Counsel for the respondent has also argued that the various documents have been enclosed with the revision petition which cannot be considered in view of the authority in the case of Apex Traders Vs. Satnam Sales Corporation & Ors., 2015 (1) AD Delhi 744. According to the Ld. Counsel, the respondent has the right to silence under Article 20 (30 of the Constitution of India. Reliance is placed upon the authorities in the cases of Nandini Satpathy Vs. Dani (P.L.) & Anr., AIR 1978 SC 1025; Selvi Vs. State of Karnataka, AIR 2010 SC 1974; Santosh S/o Dwarka Das Fafat vs. State of Maharastra, 2017 (9) SCC 714 and Menka Gandhi Vs. UOI, AIR 1978 SC 597.
(14) I have considered the rival contentions. In so far as the argument of the respondent to the effect that the impugned orders passed by the Ld. ACMM (Special Act) are interLook Out Circularutory orders and therefore, this court has no jurisdiction to try the present revision is concerned, I may note that the application filed by the respondent seeking permission to go abroad and suspension of Look Out Circular, has been finally disposed off. Therefore, under the given circumstances, the orders passed by the Ld. ACMM (Special Act) cannot, under any circumstances, be termed as InterLook Out Circularutory Orders.
Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 15 of 23 (15) Coming next to the alleged violations against the respondent Vikas Chaudhary, it is submitted by the Ld. Counsel for the Income Tax Department / Revisionist that investigations are still under progress and there is an information regarding large scale Hawala transactions. It is submitted that unaccounted income earned by the respondent Vikas Chaudhary is running into Crores of Rupees and it is revealed from the investigations conducted so far that one Hawala Operator Avtar Singh Kochar had transferred Rs.20 Crores from Dubai based entities and had received more than Rs.250 Crores from M/s. Maximus International General trading LLC which is controlled and managed by one Manoj Garg a well known Hawala Operator who had been arrested by the Central Bureau of Investigations and Directorate of Revenue Intelligence. Ld. Counsel for the Revisionist has further pointed out that the respondent Vikas Chaudhary had made total purchases in books of around Rs.1200 Crores in two years in his three entities M/s. Astha Apparels Pvt. Ltd., M/s. JBN Apparels Pvt. Ltd and M/s. JJB Apparels Pvt. Ltd. and during the investigations no physical invoices/ vouchers and supporting transportation evidences were found. Ld. Counsel has pointed out that the claim of bogus export incentives is around Rs.150 Crores against fake export invoices in his above three entities and Vikas Chaudhary had received a payment of Rs.259 Crores against sales of Rs.358 Crores from the company managed by Manoj Garg. It is also submitted that unaccounted investment made by the respondent for purchase of foreign property in the name of his daughter Ms. Astha Chaudhary Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 16 of 23 which investment made was over Rs.30 crores and Share Capital received in M/s. Astha Apparels Pvt. Ltd. from fictitious and dummy entities which has now been strike off to Rs.10 Crores. In this regard, the Revisionist has placed on record the details of the investigations conducted so far, in a sealed cover which primafacie shows the money trail through alleged Hawala transactions. I have duly perused the sealed record placed before me and after resealing the same with the seal of the Court, hereby direct that the same be returned to the Revisionist since the enormity of economic violations committed by the respondent Vikas Chaudhary and its impact on the national economy is presently a nonissue before this Court in view of the fact that the short ground on which I am inclined to intervene relates to the jurisdiction of the Ld. ACMM (Special Acts) to entertain the application filed by the respondent.
(16) Vide the impugned order the Ld. ACMM (Special Acts) permitted the respondent Vikas Chaudhary to travel to United Kingdom and Dubai one trip each from 15.08.2019 to 30.09.2010 and suspended the Look Out Circular. In this regard, I may observe that there is no provision under the Code of Criminal Procedure or any other law providing for the issuance of Look Out Circular, which is purely an administrative act. An Investigating Agency can seek recourse to Look Out Circular in Cognizable Offences under IPC or other penal laws, where the accused is deliberately evading arrest or not appearing in the trial court despite Non Bailable Warrants and other coercive measures and there is likelihood of the accused leaving the country to evade Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 17 of 23 trial/arrest. As per the established procedure, the Investigating Officer is required to make a written request for issuance of Look Out Circular to the officer as notified by the circular of Ministry of Home Affairs, giving details & reasons for seeking a Look Out Circular and it is the Competent Officer alone who shall give directions for opening Look Out Circular by passing an order in this respect. The person against whom Look Out Circular is issued must join investigation by appearing before the Investigating Officer or should surrender before the court concerned or should satisfy to the Court that Look Out Circular was wrongly issued against him. He may also approach the officer who orders issuance of Look Out Circular & explain that Look Out Circular was wrongly issued against him. Look out circular can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending or having jurisdiction over concerned police station on an application by the person concerned. Look out circular is a coercive measure to make a person surrender to the investigating agency or court of law. The subordinate courts' jurisdiction in affirming or cancelling look out circular is commensurate with the jurisdiction of cancellation of Non Bailable Warrants or affirming Non Bailable Warrants [Reference in this regard is made to the judgment of the Delhi High Court in W.P. (Crl.) No. 1313/2018 under the title 'Sumer Singh Salkan Vs. Assistant Director & Ors. with Crl. Ref. No. 01/2006 under the title Court on its Own Motion Re: State Vs. Gurnek Singh Etc. decided on 11.08.2010 and also to Office Memorandum bearing No. 25016/31/2010/Imm. Dated 27.10.2010 Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 18 of 23 issued by the Government of India, Ministry of Home Affairs (Foreigners Division)]. I note that the above Office Memorandum dated 27.10.2010 was modified pursuant to the directions of the Hon'ble Delhi High Court in the case noted herein above. (17) Thereafter vide Office Memorandum bearing No. 25016/10/2017/Imm. Dated 05.12.2017 the Government of India, Ministry of Home Affairs Foreigners Division (Immigration Section) amended the previous Office Memorandum dated 27.10.2010, which I reproduce as under:
"...... In continuation to this Ministry OM No. 25016/31/2010Imm dated 27.10.2010 and as approved by the Competent Authority, the following amendment is hereby issued: Amendment Read as "In exceptional cases Look Out Circulars can be issued even in such cases, as would not be covered by the guidelines above, whereby departure of the person from India may be declined at the request of any of the authorities mentioned in clause(b) of the abovereferred OM, if it appears to such authority based on inputs received that the departure of such person is detrimental to the sovereignty or security of integrity of India or that the same is detrimental to the bilateral relations with any country or to the strategic and/or economic interest 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 Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 19 of 23 in time."
Instead of:
"In exceptional cases, Look Out Circulars can be issued without complete parameters and / or case details against CI suspects, terrorists, anti national elements, etc. in larger national interest."
(18) Now coming to the facts leading to the filing of the present Revision Petition, at the very Outset I may observe that it is an admitted case of both the parties that at the time when the application for permission to go abroad was filed before the Ld. ACMM (Special Acts), there were no proceedings pending before the Ld. ACMM. In fact, I note from the application filed by the respondent Vikas Chaudhary that in para 1 of his application, the respondent has been very categorical that no complaint had been filed against him before the Court and that only search & seizures had been conducted. (19) Secondly, it is writ large that the Revisionist had been objecting to the jurisdiction of the Ld. ACMM (Special Acts) to entertain the application of the respondent Vikas Chaudhary in the absence of any proceedings pending before it. In this regard, I note from the reply filed by the Revisionist to the application of the respondent that the very first objection raised by the Revisionist i.e. Income Tax Department was that the Ld. ACMM (Special Acts) has no jurisdiction to entertain the application, which averment/ objection is reproduced as under:
Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 20 of 23 ".... At the outset, it is submitted that the present application is not maintainable before this Hon'ble Court as no case is pending before this Hon'ble Court. The jurisdiction of this Hon'ble Court cannot be invoked in the absence of this Hon'ble Court having jurisdiction...."
(20) The Ld. ACMM (Special Acts) casually brushed aside the objection by observing that its Court was the only Court in Delhi for dealing with trial of complaints filed by the Income Tax Department in Delhi. The Ld. ACMM (Special Acts) fell in error by failing to notice that on the date when the application filed by the respondent was being dealt with no complaint had been filed by the Income Tax Department against the respondent and no trial was pending before it. Hence, the observations made by the Ld. ACMM (Special Acts) that ".... its jurisdiction for entertaining the application has not been disputed by the respondent before it i.e. Income Tax Department...." are contrary to record and the stand taken by the Revisionist/ Income Tax Department that it had no jurisdiction to entertain the application.
(21) Thirdly, the Ld. ACMM (Special Acts) fell in error when it failed to appreciate that the respondent Vikas Chaudhary had directly approached the Court of Law without approaching the authority who had issued the Look Out Circular. There is nothing on record to show that the proceedings for issuance of Look Out Circular had been initiated by the Court and hence, the question of approaching the Court at the first instance and that too when no complaint under any Act Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 21 of 23 (either under the Income Tax Act or under the Prevention of Money Laundering Act) had been filed in the Court. Merely because the respondent was being investigated under the Income Tax Act (as per the respondent) or the Prevention of Money Laundering Act (as claimed by the Revisionist), both of which violations are cognizable entailing punishment with imprisonment extending upto ten years, cannot confer jurisdiction upon the Special Court till such time the complaint is filed in the Court or a case is registered by the competent authority which prerequisite is missing in the present case. (22) Lastly, there can be no dispute with the settled proposition that freedom of movement and to travel abroad is a Fundamental Right guaranteed under Articles 14, 19 and 21 of the Constitution of India [Ref: Santosh S/o Dwarka Das Fafat Vs State of Maharashtra reported in (2017) 9 SCC 714 and Menaka Gandhi Vs. UOI reported in AIR 1978 SC 597]. In the absence of any proceedings pending before the Special Court i.e. the ACMM (Special Acts), in case if the respondent Vikas Chaudhary was aggrieved of the decision of the competent authority to issue a Look Out Circular, I fail to understand how the respondent Vikas Chaudhary could have approached the Ld. ACMM (Special Acts). All the judgments so relied upon by the respondent Vikas Chaudhry in order to buttress his argument relating to the redressal of his fundamental right, are those where the petitioners had approached the Constitutional Courts (either the High Court or the Supreme Court) for enforcing their fundamental rights and redressal of their grievances. Merely because the court of Ld. ACMM (Special Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 22 of 23 Acts) is the designated court dealing with the Income Tax Act Cases, the same will not perse confer any jurisdiction to entertain any application filed by a person against whom no proceedings whatsoever are pending before it.
(23) This being the background, I hereby hold that the Ld. ACMM (Special Acts) was totally lacking jurisdiction and had seriously erred in entertaining the application filed by the respondent under the given circumstances when there were no proceedings of any kind pending before it. The applicant was neither a complainant nor an accused nor a witness in any pending matter before the Court of Ld. ACMM (Special Acts). Admittedly, no complaint has been filed against the respondent Vikas Chaudhary. When there were no proceedings pending before the Ld. ACMM (Special Acts), were then was the question of the Court having jurisdiction to entertain the application.
(24) Hence, in view of my above discussion, the impugned orders dated 27.08.2019 and 29.08.2019 are hereby set aside. The Revision Petition is accordingly Allowed.
(25) Trial Court record be sent back along with the copy of this
Judgment. Digitally
signed by
KAMINI
(26) Revision file be consigned to Record Room. KAMINI LAU
LAU Date:
2019.09.07
18:08:13
+0530
Announced in the open court (Dr. KAMINI LAU)
Dated: 07.09.2019 Addl. Sessions JudgeII (Central),
Tis Hazari Courts, Delhi
Sukhad Chaturvedi Vs. Vikas Chaudhary, CR No.47/19, Order dated 07.09.2019 Page No. 23 of 23