Telangana High Court
Kondaveeti Papamma vs Union Of India on 28 April, 2022
Author: G. Radha Rani
Bench: G. Radha Rani
THE HON'BLE Dr. JUSTICE G. RADHA RANI
WRIT PETITION No.14746 OF 2022
ORDER:
This petition is filed by the petitioner to declare the action of the respondents No.2 and 3 in obstructing and restraining her from travelling abroad, as illegal and arbitrary and in violation of Articles 14 and 21 of the Constitution of India and in violation of principles of natural justice.
2. Heard the learned counsel for the petitioner and the learned Special Public Prosecutor for CBI for respondent No.2 and the learned Standing Counsel for respondent No.3.
3. The learned counsel for the petitioner submitted that the petitioner was a retired employee of National Institute of Rural Development and Panchayat Raj. After her retirement, a complaint was registered against her at CBI, vide FIR No.RCO352021A0016, dated 06.09.2021 for the offences under Sections 120-B, 409, 420 IPC and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act. The petitioner was arrayed as Accused No.2 in the said crime. She was issued with a notice under Section 41-A Cr.P.C. on 07.01.2022. On receiving the same, she replied to the notice. Subsequently, the statement of the petitioner was recorded. Thereafter, the petitioner had not received any Dr.GRR,J 2 WP No.14746 of 2022 communication from the said authority for further investigation or any order/notice. While the matter stood thus, the petitioner's elder daughter who was living in USA had undergone mis-carriage. The petitioner in order to visit her daughter planned to travel to USA along with her husband and had reserved tickets. In the said process, she reached the Airport on the early hours of 09.03.2022. To her utter surprise, the 3rd respondent authorities stopped her at Immigration Office and made her to sit for three hours and restrained her from travelling without assigning any valid reason or notice. The petitioner requested the respondents to communicate the reasons for restraining her, but the respondents without assigning any reasons escorted her back to exit the Airport. The petitioner was not served with any notice with regard to travel restrictions imposed by the respondents or the Court below. She was not having any criminal background except the alleged offence against her. She was a respectable lady in the society. The action of the respondents in restraining her from travelling abroad was in violation of Articles 14 and 21 of the Constitution of India and in violation of principles of natural justice and prayed to allow the writ petition.
4. The learned Special Public Prosecutor for CBI submitted that the preliminary enquiry was conducted and a FIR was registered against the Dr.GRR,J 3 WP No.14746 of 2022 petitioner and others for committing alleged offences of irregularities in printing materials at National Institute of Rural Development and Panchayat Raj for the period from 2015 to 2019 and causing wrongful loss to a tune of Rs.1.22 Crores to the Government Exchequer. A notice under Section 41-A Cr.P.C. dated 07.01.2022 was issued to the petitioner and the Investigating Officer interrogated and recorded the statement of the petitioner on 12.01.2022. The relevant documents which would establish the role of the petitioner were yet to be received from the NIRD and Panchayat Raj, Rajendra Nagar, Hyderabad. After receiving the said documents, the petitioner would be needed to be interrogated again. After examining the other witnesses, re-examination of the petitioner might be required seeking her explanation on the evidence against her. The petitioner had regular B1/B2 visa valid for 10 years from the date of issue, B1 visa was a non-Immigrant Business visa and B2 was a Tourism visa, which would show that the petitioner could stay in USA for 6 months at a time (several times consecutively or at a time). The petitioner had not provided any proof of her return to India any time sooner, which would hamper the process of investigation. There was a possibility of the petitioner avoiding the process of investigation and pending regular departmental enquiry by her escape from India. If it was so, the total legal Dr.GRR,J 4 WP No.14746 of 2022 process which had been initiated would be derailed and might turn futile. Therefore, a Look Out Circular (LOC) had been resorted to avoid unnecessary delay and stalling of investigation.
5. The learned Public Prosecutor for CBI further submitted that the petitioner had not informed the Investigating Officer about her travel to USA which would show her malicious intent to leave the country, pending investigation of the criminal case in which she was involved and prayed to dismiss the petition.
6. Learned Standing Counsel for the 3rd respondent filed the instructions dated 28.03.2022 received by her and submitted that a Look Out Circular was raised in the name of the petitioner on the requisition of the Superintendent of Police & HOB, CBI, Anti Corruption Branch, Visakhapatnam, in February, 2022 with a direction to "Prevent Subject from Leaving India and Inform Originator". As per the MHA Guidelines, the legal liability of the action taken by the Immigration Authorities in pursuance of LOC would rest with the originating agency. The Immigration Authorities would strictly go by the communication received from the officers authorized to open the LOCs. The withdrawal of LOC Dr.GRR,J 5 WP No.14746 of 2022 against the petitioner was prerogative of the originator and prayed to dismiss the writ petition against the 3rd respondent.
7. Perused the record. Admittedly, the petitioner was arrayed as Accused No.2 in FIR No. RCO352021A0016, dated 06.09.2021, registered against her at CBI, Anti Corruption Branch, Visakhapatnam. She was issued with a notice under Section 41-A Cr.P.C. on 07.01.2022. Some directions were given in the said notice asking her to comply the same. The said directions are as under:
(a) You will not commit any offence in future.
(b) You will not tamper with the evidences in the case in
any manner.
(c) You will not make any threat, inducement, or promise
to any person acquainted with the fact of the case so as to dissuade him from disclosing, such facts to the court or to the police officer.
(d) You will appear before the Court as and when
required/directed.
(e) You will join the investigation of the case as and when
required and will cooperate in the investigation.
(f) You will disclose all the facts truthfully without concealing any part relevant for the purpose of investigation to reach to the right conclusion of the case.
(g) You will produce all relevant documents/material required for the purpose of investigation.
(h) You will render full cooperation/assistance in apprehension of the accomplice.
(i) You will not allow in any manner destruction of any evidence relevant for the purpose of investigation/trial of the case.
Dr.GRR,J 6 WP No.14746 of 2022
(j) Any other conditions which may be imposed by the Investigating Officer/SHO as per the facts of the case.
8. The above directions would not disclose that she was required to inform the Investigating Officer before proceeding to travel abroad. She replied to said notices and appeared before the Investigating Officer and her statement was recorded on 12.01.2022. No further notice was issued to her. She was restrained in the Airport on 09.03.2022 by the 3rd respondent authorities by stating that a Look Out Circular was issued against her. But no reasons were assigned to her as to why she was restrained from travelling. She was forced to cancel her travel.
9. Learned counsel for the petitioner relied upon the judgment of the High Court of Punjab and Haryana at Chandigarh in Noor Paul v. Union of India & Others1 wherein in a similar case, the writ petition was filed challenging the Look Out Circular issued by the Bureau of Immigration, Ministry of Home Affairs, Government of India. The High Court held that:
"57. In our opinion, non-supply of a copy of the LOC to the subject of the LOC at the time the subject is stopped at the airport for travel abroad, non-supply of reasons for issuing LOC , and absence of a post decisional hearing to the subject of the LOC, is not just, fair and reasonable procedure. It is violative of Art.21 of the Constitution of India.1
2022 LiveLaw (PH) 69 Dr.GRR,J 7 WP No.14746 of 2022
58. The Office Memorandum produced by the respondents No.1,3 and 4 for our perusal do not contain any of the above safeguards. The State cannot plead ignorance of the decisions in Satwant Singh Sawhney vs. D. Ramarathnam, Asstt. Passport Officer [AIR 1967 SC 1836] and Maneka Gandhi vs. Union of India [(1978) 1 SCC 248] and contend that there is secrecy surrounding the issuance of an LOC and continue the existing practice.
59. It is desirable that these requirements be read into the Office Memoranda relied upon by the said respondents since it is settled law, as held in Institute of Chartered Accountants v. L.K. Ratna, (1986) 4 SCC 537 that unless there is a clear mandate to the contrary, principles of natural justice must be read into a law even if it is silent on the aspect. The Supreme Court held in Institute of Chartered Accountants (Supra) as under:
"16. ... ...The principles of natural justice must be read into the unoccupied interstices of the statute unless there is a clear mandate to the contrary."
10. Considering the judgments of the Hon'ble Apex Court in Satwant Singh Sawhney vs. D. Ramarathnam, Asstt. Passport Officer [AIR 1967 SC 1836], wherein it was held that the right to travel abroad would fall within the scope of personal liberty enshrined under Article 21 of the Constitution of India and in Maneka Gandhi vs. Union of India [(1978) 1 SCC 248], a 7 Judge Bench of the Hon'ble Supreme Court declared that no person can be deprived of his right to go abroad unless there is a law enabling the State to do so and such law contains fair, reasonable and just procedure, it is considered fit to direct the 2nd respondent to serve a copy of the Look Out Circular and reasons for issuing it to the petitioner and to provide an opportunity to her for hearing Dr.GRR,J 8 WP No.14746 of 2022 on it within two weeks from the date of receipt of a copy of this order and they are directed to permit the petitioner to travel abroad, if her presence for investigation is not required immediately or by taking an undertaking from her that she would appear as and when directed by them.
11. With the above directions, the Writ Petition is disposed of. No order as to costs.
Miscellaneous Petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J April 28, 2022 KTL