Gujarat High Court
Ashish Mahavir Tawakley vs State Of Gujarat on 24 August, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/4808/2021 ORDER DATED: 24/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4808 of 2021
With
CRIMINAL MISC.APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CRIMINAL APPLICATION NO. 4808 of 2021
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ASHISH MAHAVIR TAWAKLEY
Versus
STATE OF GUJARAT
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Appearance:
MR YOGESH LAKHANI, SENIOR ADVOCATE FOR M/S WADIAGHANDY
AND CO(5679) for the Applicant(s) No. 1
AISHWARYA R CHIRLA(9713) for the Respondent(s) No. 4
GUPTA LAW ASSOCIATES(9818) for the Respondent(s) No. 4
MR DEVANG VYAS(2794) for the Respondent(s) No. 3
MR RC KODEKAR(1395) for the Respondent(s) No. 2
PARITOSH R GUPTA(7583) for the Respondent(s) No. 4
PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 24/08/2021
ORAL ORDER
The petitioner has made a prayer to allow him to travel to Dubai during the pendency of Special Criminal Application No.4808 of 2021.
It is stated by the petitioner that, in the petition, he has challenged the Look-out-Circular (LOC) opened against him and owing to that, the petitioner has been restricted to travel to his home in Dubai since more than 70 days which is causing unbearable difficulties and mental stress.
The petitioner also states that he is desperate to return to Dubai primarily for the welfare of his aged mother who is about 87 years old and has been living alone in Dubai ever Page 1 of 9 Downloaded on : Fri Aug 27 00:40:23 IST 2021 R/SCR.A/4808/2021 ORDER DATED: 24/08/2021 since the petitioner was disallowed from traveling back. The petitioner states that his mother is unable to do day-to-day activities and a house help is looking after her presently, however, on account of her old age and depleting health condition, she is in dire need of the support of an immediate family member and especially her son. The petitioner states that he is needed to oversee the well being of his mother and rush to her aid in case of an emergency.
The petitioner also states that on 03/05/2021 his mother had to rush to hospital on account of various physical complaints including dizziness, fatigue, pain etc. The petitioner had considered his wife to travel to Dubai and look after his mother, however, as his father-in-law had been battling with Covid-19 pandemic and its complications and was in fact in ICU for more than three weeks and on 5/06/2021, his father-n-law succumbed to the severe complication of Covid-19 pandemic, it was not possible for his wife to travel to Dubai. As of now there is no immediate family member who can see her. Therefore, for well being of his aged mother, the petitioner seeks urgent interim direction from this Court.
The petitioner further states apart from personal difficulties as stated above, he is facing difficulties in his day- to-day activities in his professional life as he is residing in Dubai since last more than 13 years and has no professional obligations in India and his only source of income and livelihood is in Dubai which has been severely impacted due to his inability to attend day-to-day affairs of his employer. The petitioner states that he is employed as a Global Product Page 2 of 9 Downloaded on : Fri Aug 27 00:40:23 IST 2021 R/SCR.A/4808/2021 ORDER DATED: 24/08/2021 Manager in an International Trading company and heads a team of professionals based in Dubai. The role and responsibility of the petitioner requires daily personal meetings and interactions. Being the head of the team, the approvals and signatures of the petitioner are essential for the work to move forward. However, because of his absence, there have been serious delays and if work cannot be completed in time, it would have an impact on impression and standing of the petitioner before his employer.
The FIR has been lodged by the CBI against the company of which the petitioner was once a Non-Executive Professional Director and had resigned from the services of the company two years before the account turned NPA. The investigating agency, CBI has already indicated that they are not seeking custodial investigation of the petitioner. The CBI has not issued any Look-out Circular against the petitioner. The SBI has opened a Look-Out Circular (LOC).
The petitioner was not given any intimation of the Look- Out-Circular (LOC) when he entered in India on 10/04/2021 and he was intimated of the LOC while he was catching a return flight to Dubai on 14/04/2021 and was not allowed to travel to Dubai.
Learned Senior Advocate Mr. Lakhani submits that present petitioner had moved an anticipatory bail application in connection to the FIR filed by the Bank of India dated 08/07/2020. He submits that a categoric stand was taken by the CBI during the hearing of the anticipatory bail while submitting the reply to the proceedings, have informed the Page 3 of 9 Downloaded on : Fri Aug 27 00:40:23 IST 2021 R/SCR.A/4808/2021 ORDER DATED: 24/08/2021 Court that CBI has not shown any inclination to arrest the petitioner, however, if at all during the course of investigation if any criminal act of the petitioner gets unfold in which requires custodial investigation he would be given sufficient time/notice within the defined boundaries of law.
Mr. Lakhani, learned Senior Advocate submits that present petitioner during his visit in India came to know about the FIR No.RC0292020A0010 dated 06/08/2020 registered with ACB Police Station, Gandhinagar the petitioner has got recorded his statement towards the FIR before the CBI. The CBI has not made his arrest in that case. Mr.Lakhani, learned Senior Advocate submits that the petitioner has disclosed all the relevant facts in the main petition that is Special Criminal Application No.4808 of 2021 even disclosing the fact that he is one of the guarantor in the borrowing account of M/s CEIPL.
Mr. Lakhani, learned Senior Advocate also relied on the judgments in the case of (1) Managing Director, Castrol India Limited vs. state of Karanataka and another reported in (2018) 17 SCC 275 to submit that in the absence of specific averment showing role and involvement, officer of Company cannot be arrayed as an accused by applying principle of vicarious liability and (2) E.V. Perumal Samy Reddy and Others vs. State and Others reported in 2014(1)MLJ(Crl)125 to state that it is a fundamental right of a person to travel anywhere he likes, including foreign countries and to express requirements for the Look-Out Circular, and states that the petitioner is not involved in any serious crime, anti social element or nor he has fallen in the category of those persons Page 4 of 9 Downloaded on : Fri Aug 27 00:40:23 IST 2021 R/SCR.A/4808/2021 ORDER DATED: 24/08/2021 who could be included in such serious crimes.
Mr. R. C. Kodekar, learned Special Public Prosecutor for the CBI states that the CBI had disclosed before the concerned court that as and when the custodial investigation of the petitioner would be required, the petitioner would be given sufficient time/notice. Affirming the Look-Out Circular (LOC) opened by the SBI, Mr.Kodekar, learned Special Public Prosecutor submits that it is reasonable, since LOC has been issued as SBI is one of the bank which provided the loan facilities to the accused company thus permitting the petitioner to go abroad may lead to delay in investigation of the case.
On behalf of Mr. Devang Vyas, learned Additional Solicitor General for Union of India, Mr.Siddharth Dave, learned advocate, referring to the notification of Ministry of Finance dated 22/11/2018 contends that PSBs are empowered to issue requests for opening of Look Out Circulars which has to be strictly complied with.
In the office memorandum of Ministry of Home Affairs dated 27/10/2010 for the subject of issuance of Look Out Circulars (LOC) in respect of Indian citizens and foreigners, it has been observed in para nos.4 to 7 as under:
"4. The Hon'ble High Court of Delhi, in Writ Petition (Civil) No.10180 of 2009 [Shri Vikram Sharma vs. Union of India and Ors.], considered the question whether a request for the issuance of an LOC could be made by the national Commission for Women (NCW). While disposing of the said Writ Petition, the High Court, in its order dated 26.7.2010, observed that 'a request for the Page 5 of 9 Downloaded on : Fri Aug 27 00:40:23 IST 2021 R/SCR.A/4808/2021 ORDER DATED: 24/08/2021 issuance of an LOC could not have emanated from the NCW. It had to come from either the Central or the State Government and that too only in the prescribed from and then again only by the officers of a certain rank. In this context, while criminal courts dealing with cases of criminal law enforcement can issue directions, which may result in the issuance of an LOC, there is no such power vested either under the Cr.P.C. or the Passports Act or under the MHA's circular, in statutory bodies like NCW. Being granted the powers of a civil court for a limited purpose does not vest the NCW with the powers of a criminal court and it has no authority as of today to make a request for the issuance of an LOC.....'
5. The Court further observed, "there are a large number of statutory commissions at the level of the Centre and the States which perform judicial functions and are vested with, for the purpose of conducting inquiries upon receiving complaints, the powers of a civil court. There include the National Human Rights Commission (NHRC), the NCW, the National Commission for Protection of Children's Rights. These statutory bodies, however, have not been vested with the powers of a criminal court and do not have powers to enforce criminal law. It is for the Government of India to take a policy decision on whether it wants to vest such statutory tribunals/commissions with criminal law enforcement powers. Since as of today, they have no such power, it is imperative that the MHA should issue further clarificatory circulars or office memoranda clearly stating that the request for issuance of LOCs' cannot 'emanate' from statutory bodies like the NCW. If at all, such bodies should bring the necessary facts to the notice of law enforcement agencies like the police, which will then make the request for issuance of an LOC upon an assessment of the situation, and strictly in terms of the procedure outlined for the purpose. This clarification will be issued by the MHA, in the consultation with other concerned agencies, including representatives of the statutory bodies referred to, within a period of 12 weeks from today...."
6. In a related judgment delivered on 11.8.2010 by the Hon'ble High Court of Delhi in W. P. (Cr.) No.1315/2008-Sumer Singh Salkan Vs. Asstt. Director & Page 6 of 9 Downloaded on : Fri Aug 27 00:40:23 IST 2021 R/SCR.A/4808/2021 ORDER DATED: 24/08/2021 Ors and Crl.Ref.1/2006-Court on its Own Motion Re:State Vs. Gurnek Singh etc;, the Court has answered four questions raised by a lower court on the LOC. These questions are as below:
a) What are the categories of cases in whch 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 bee 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?
7. The High Court has answered these questions in its judgment dated 11.8.2010 which are reproduced below for guidance of all concerned agencies:
a) Recourse to LOC can be taken by investigating agency in cognizable offences under IPC or other penal lows, 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 Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs, giving details & reasons for seeking LOC. The competent officer alone shall give directions for opening LOC by passing an order in this respect.
c) The person against whom LOC is issued must join investigation by appearing before I. O. or should surrender before the court concerned or should satisfy the court that LOC was wrongly issued against him. He may also approach the officer who ordered issuance of LOC & explain that LOC was wrongly issued against him. LOC 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 Page 7 of 9 Downloaded on : Fri Aug 27 00:40:23 IST 2021 R/SCR.A/4808/2021 ORDER DATED: 24/08/2021 police station on an application by the person concerned.
d) LOC is a coercive measure to make a person surrender to the investigating agency or Court of law. The subordinate courts' jurisdiction in affirming or concelling LOC is commensurate with the jurisdiction of cancellation of NBWs of affirming NBWs."
It has been stated at bar that three FIRs have been filed against present petitioner. In one of the matter, CBI has stated before the Court where anticipatory bail was moved by the petitioner that in event of necessity of the present petitioner being called for custodial investigation, notice of one week would be issued. The petitioner on 10/04/2021 came to India and his departure was on 14/04/2020 while because of LOC, the petitioner was restrained to move out of the Country. It is also stated that in the FIR by SBI, statement of the petitioner was recorded. FIR is filed by the Bank of India before the ACB, Gandhinagar. These all the agencies before whom FIR had been lodged have knowledge of the petitioner's presence in India. Till today, no action has been initiated against him. Notice has been served in one of the matter and the petitioner has given statement before the authority.
The petitioner has his business in Dubai. Mr. Lakhani, learned senior advocate submits that he visits India twice or thrice in a year for his business purpose and the petitioner will be available as and when called for before the Court or before the investigating agency. Taking all these facts into consideration, all the authorities/investigating agency before whom the FIR is lodged, if they consider the presence of the Page 8 of 9 Downloaded on : Fri Aug 27 00:40:23 IST 2021 R/SCR.A/4808/2021 ORDER DATED: 24/08/2021 petitioner necessary, then within fifteen days of this order, they are directed to proceed in accordance with law.
Let the Criminal Misc. Application No.1 of 2021 for direction be placed along with the main matter on 07/09/2021 for final hearing.
(GITA GOPI,J) ila Page 9 of 9 Downloaded on : Fri Aug 27 00:40:23 IST 2021