Madras High Court
C.Sivasankaran vs Foreigner Regional Registration ... on 21 December, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
W.P.No.27856 of 2024 IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 04.12.2024 Pronounced on : 21.12.2024 CORAM : JUSTICE N.SESHASAYEE W.P.No.27856 of 2024 C.Sivasankaran ... Petitioner Vs
1.Foreigner Regional Registration Officer (FRRO) Bureau of Immigration, Ministry of Home Affairs Government of India No.26, Haddows Road Chennai - 600 006.
2.The Secretary Ministry of Home Affairs Government of India South Block, New Delhi - 110 001.
3.The Deputy Superintendent of Police Central Bureau of Investigation (CBI) Bank Securities and Frauds Branch No.36, Bellary Road Ganga Nagar, Bangalore - 32.
4.The Deputy Superintendent of Police Central Bureau of Investigation (CBI) Plot No.5-B, CGO Complex Lodhi Road, New Delhi - 110 003.
https://www.mhc.tn.gov.in/judis 1/52 W.P.No.27856 of 2024
5.The Central Vigilance Commissioner Satarkata Bhavan, A-Block GPO Complex, INA New Delhi - 110 023.
6.The Assistant Foreigners Regional Registration Officer Bureau of Immigration Anna International Airport Meenambakkam Airport Chennai - 600 027.
7.The Director Directorate of Enforcement VI Floor, Lok Nayak Bhavan Khan Market, New Delhi - 110 003.
8.The Joint Director Directorate of Enforcement Ministry of Finance, Department of Revenue II & III Floor, C Block Murugesa Naicker Complex 84, Greams Road, Thousand Lights Chennai - 600 006.
9.Serious Fraud Investigation Office Assistant Director and Investigating Officer 7th Floor, Fountain Telecom Building MG Road, Mumbai.
.. Respondents in WP. No.27856 of 2024 Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus to direct the respondents to permit the petitioner to travel abroad 5 working days a month and pass such other further orders as this Court deems fit in the proper facts and circumstances of the case .
https://www.mhc.tn.gov.in/judis 2/52 W.P.No.27856 of 2024 For Petitioner : Mr.V.Ayyadurai, Senior Counsel Assisted by Mr.Vijayan Subramanian For Respondents : Mr.AR.L.Sundaresan Additional Solicitor General Assisted by Mr.Cibi Vishnu Special Public Prosecutor for R7 & R8 Mr.R.Rajesh Vivekanantham Deputy Solicitor General of India for R5 & R9 Mr.K.Srinivasan Special Public Prosecutor (CBI) for R3 & R4 Mr.K.Srinivasa Murthy SPCCG for R1, R2 & R6 Introduction:
1. This Order may be termed as a sequel to an earlier Order passed in a batch of cases in Pathan Apser Hussen Vs Bureau of Immigration & Others (for short LOC – I) [W.P. No.27686 of 2024, dated 06.12.2024] in which I had an occasion to discuss the right of a national, slapped with a Look Out Circular (LOC), to travel abroad. The present case however, is a shade different as it relates not to a national, but to an identically placed foreigner.
2. The petitioner is a first generation foreigner of Indian origin holding a passport of the Republic of Seychelles. He faces accusations inter alia from https://www.mhc.tn.gov.in/judis 3/52 W.P.No.27856 of 2024 the CBI, and the investigating agency has slapped LOC twice, first before June, 2018, then lifted it on 03.09.2018 only to re-issue it months later in January, 2019. Ever since he is stuck in India. Hence, he has laid the present petition seeking suspension of the LOC and for leave to travel abroad.
Facts :
3.1 A statement on the pleadings in this case essentially sets the tone for considering whether the court should consider the petitioner’s prayer for suspending the LOC, and let him travel abroad for 5 days a month. His submissions are as below:
a) The petitioner is a 67-year-old citizen of Seychelles. He however, is a first generation foreign national of Indian origin. He has always been a multi-dimensional entrepreneur and had also been a founder of Aircel. He is now a mentor of M/s AIWO Ltd.,
b) Be that as it may on 13.04.2018, the CBI, the third respondent in this case registered FIR No. 9 of 2018 inter alia against a Finnish company named M/s. Win Wind Oy, alleging that it had conspired with the other accused and defrauded M/s.IDBI Bank to the tune of Rs. 600 crores. The list of accused persons included the petitioner, who the prosecution describes as the Chairman of Siva Group. On https://www.mhc.tn.gov.in/judis 4/52 W.P.No.27856 of 2024 24.12. 2022, CBI laid a final report before the Add. CMM, Egmore in which the petitioner was ranked A.12. Treating the case registered by the CBI as the predicate case, on 01.05.2018, the Directorate of Enforcement (ED), had registered a case against the petitioner under the Prevention of Money Laundering Act, 2002 (PMLA for short), and it is now pending in Spl. C.C. No. 02/2021 before the IX Additional Special Judge for CBI Cases, City Civil Court, Chennai wherein the petitioner has been arraigned as A1.
While things stood thus, on 06.08.2018, when the petitioner arrived at the Chennai International Airport, he was informed about the Look Out Circular (LOC) issued by the CBI. The petitioner immediately addressed a communication dated 01.09.2018,to the CBI to lift the LOC, and this was done and accordingly on 03.09.2018, the CBI had lifted the LOC, only to re-issue it four months later. In between the petitioner had travelled abroad to six different countries for a total number of 35 days, and had returned to Chennai.
c) Ever since the re-issuance of LOC in January 2019, the petitioner made multiple and multi-pronged attempts to have it withdrawn, but they were in vain. Hence,the petitioner filed W.P. No. 19743 of https://www.mhc.tn.gov.in/judis 5/52 W.P.No.27856 of 2024 2019 before this Court for quashing the second LOC, but on 06.11.2019, it came to be dismissed. Undeterred, the petitioner moved the Supreme Court in W.P.(Crl.)No.302 of 2019, but on 07.12.2021 that also came to be dismissed.
d) Thereafter, the petitioner filed W.P. No. 26460 of 2022 seeking temporary suspension of LOC to travel abroad, and on 05.06.2023 it came to be dismissed, and a SLP preferred against it was also dismissed by the Supreme Court on 04.09.2023.
e) The petitioner is now required by his attorney at Seychelles to arrive there for settling an extant dispute between him and one M/s. Power Trade Capital before 15.10.2024.This apart, on 30.08.2024, the petitioner was required by M/s AIWO Ltd. to travel abroad for five working days a month to deliver wellness services to both Indian and international clients.
f) All along the petitioner has been lending his best of co-operation with all the investigating agencies. However, since the LOC has not been lifted, he could not travel abroad since January2019, and it has infringed his right to travel abroad and his right to life. 3.2 Explaining the quintessence of the FIR in RC-09(E)/2018 registered https://www.mhc.tn.gov.in/judis 6/52 W.P.No.27856 of 2024 against M/s. Axcel Sunshine Limited (a company incorporated in the British Virgin Islands) & others,the CBI (Respondents 3 & 4) has averred:
a) The case involves an alleged unlawful sanction of a loan for Rs. 323 crores by the IDBI bank to M/s. Win Wind Oy (a subsidiary of Siva Group of Companies) in 2011, which later came to be declared a NPA to the extent of Rs. 393 crores in 2013.
b) A certain Siva Industries & Holdings had issued a corporate guarantee to secure this loan. While so, in 2014, the Senior Management Officials of the IDBI bank, sanctioned a loan of Rs.520 crores to M/s. Axcel Sunshine Limited (a sister concern of M/s. Win Wind Oy) in gross breach of the extant guidelines of RBI, which was later used to discharge the first mentioned loan of Win Wind Oy, that resulted in the release of the corporate guarantee given by Siva Industries, leaving the loan obtained by Axcel Sunshine unsecured. Indeed the loan amount so advanced to Axcel Sunshine was diverted to few companies (all of which are accused) of Siva group, and in the entire process the bank suffered a wrongful loss of more than 600 crores.
c) Now, the investigation in this case is completed, and on 24.12.2022, a final report has been laid in which the petitioner is arraigned as A12.
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d) The petitioner is a key player in this bank fraud, and if he is permitted to travel abroad, there is a good chance that he may not return to India forever. Indeed, the right to travel abroad is not an absolute right, and the petitioner should not be permitted to travel abroad, and this has been recognized by this Court and the Supreme Court in the previous rounds of litigation initiated by the petitioner. 3.3 In its counter the ED (Respondents 7 & 8) has averred:
a) Since the petitioner’s right to travel abroad has been denied earlier by this court and the Supreme Court, he is not entitled to maintain this petition.
b) Contrary to his contention that the petitioner is only a mentor of M/s AIWO, his association with it goes far beyond. It is hence in Spl.
C.C. No. 02/2021 now pending before the IX Addl. CC Court, AIWO has been arrayed as an accused. In fact, the office address of AIWO viz. No. 30, Giri Road, T. Nagar, has been mentioned as the contact address of the petitioner in the instant writ petition. And whatever letter the petitioner has obtained from AIWO requiring him to travel for its client-meet is procured for the purpose of this case. There is no change of circumstances. The petitioner is a flight https://www.mhc.tn.gov.in/judis 8/52 W.P.No.27856 of 2024 risk and there are chances that he might not return to India, more specifically when he has no roots in India and when India and Seychelles do not have an extradition treaty. Further, the proceeds of the crime investigated by the ED were routed through various companies in the foreign countries and there is a possibility that the petitioner may travel abroad to tamper with the evidence. 3.4 The SFIO (the 9th respondent) has averred in its counter the following:
a) On 30.09.2018, the SFIO was directed to investigate the affairs of one Infrastructure Leasing and Financial Services (IL&FS) and its subsidiary companies. Consequently, on 28.05.2019, it completed its investigation of M/s IFIN, one of the subsidiaries of IL&FS, and has submitted its report to the Ministry of Corporate Affairs. The investigation revealed that IFIN, without regard to its loan policy, had advanced Rs. 930 crores to eight companies controlled by the petitioner as the promoter of the Siva Group of Companies without enquiring into the credit worthiness of the debtor companies. The loans were primarily extended to enable the aforesaid companies to repay the loans availed by them which had been declared NPA by https://www.mhc.tn.gov.in/judis 9/52 W.P.No.27856 of 2024 other financial institutions and in certain cases by the IFIN itself.
Accordingly, the SFIO has preferred Complaint No.20/2019 before the Special Court (Companies Act) at Mumbai, and on 28.11.2023, the Court took cognizance of the same.
b) In order to secure the presence of the petitioner in India, the SFIO issued an LOC against him. The said circular was challenged by the petitioner in W.P. No. 26460 of 2022 and this Court dismissed the petition vide order dated 05.06.2023. Since the petitioner is a Seychelles national with whom India does not have an extradition treaty and is alleged to be involved in economic offences and has not exhibited any crucial change in circumstance after 05.06.2023, it is best if the petitioner is not allowed to travel abroad. 3.5 In the counter filed by the Immigration Officials (respondents1,2 and 6), they allege that LOC was initiated by the CBI and the Immigration Officials will act on it till it is informed that the LOC has been deleted. Reference is placed on the ratio in Rahul Dilip Shah v. Union of India and Ors, [2024 SCC OnLine Del 51].
https://www.mhc.tn.gov.in/judis 10/52 W.P.No.27856 of 2024 The Arguments:
4. While the argument of the petitioner's counsel was along predictable lines, the tenor of the arguments of all the learned counsel for the three investigating agencies, which it must be recorded were advanced in all vehemence, focused essentially on the following aspects as to why the petitioner should not be granted leave to travel abroad:
a) the petitioner has managed to manipulate the banking system and the financial institutions through multiple companies of his group, some of which are incorporated in foreign countries, through which loans were obtained and were diverted through different companies, to repay the earlier loans, besides explaining how the corporate guarantee offered for earlier loans were released, leaving the second loans unsecured.
b) that the petitioner is a citizen of Seychelles and that he does not have strong roots in India, and if he leaves the country he might not return and there is a potential risk of him sabotaging the prosecutorial efforts and plans to prosecute him.
c) That the petitioner’s earlier efforts both before this court either to lift the LOC or to suspend the same has ended in vain, and its confirmation by the Hon'ble Supreme Court too went against him, https://www.mhc.tn.gov.in/judis 11/52 W.P.No.27856 of 2024 and hence he cannot sustain the present petition.
5. The response of the petitioner is candid:
a) Before June, 2018, the CBI had registered a case for bank-fraud, and it was shadowed by the ED initiating its own proceedings under the PMLA, treating the case registered by the CBI as the predicate offence. And the LOC issued by the CBI was made known to the petitioner on his arrival at the International Airport, Chennai on
06.08.2018. He was then the ambassador of Seychelles to India, and he wrote to the authorities to lift the LOC. This was done on 03.09.2018. During the next four months till the LOC was re-issued in January 2019, he had travelled abroad on six occasions to six countries for a total number of 35 days, and has chosen to return to Chennai every time. In other words he had operated with Chennai as his headquarters. Even at that point of time he knew that the CBI had initiated a criminal prosecution against him and so had the ED, yet he entertained no idea to flee from India. If only he had the intention of fleeing the country, he had all the opportunity to flee like the twosome who had pushed the CBI into despair over their extradition into this country. He did not choose to do so. Secondly, https://www.mhc.tn.gov.in/judis 12/52 W.P.No.27856 of 2024 he had abided by law and had co-operated with the investigation, something none of the investigating agency has ever questioned. Be that as it may, on 24.12.2022, the CBI has laid its final report which the Special Court has taken cognizance of in C.C. 554/2023.
b) Turning to the litigations earlier instituted, the first of the two occasions when the petitioner approached this court was in W.P.No.19743/2019. This was a challenge to the very slapping of LOC on the ground that the petitioner, being an ambassador of Seychelles to India, was entitled to diplomatic immunity. This contention was negated by this court, and later by the Hon'ble Supreme Court in W.P.(Crl.) No. 302/2019. While the issue before the court in those cases was limited to an enquiry vis-a-vis the entitlement of the petitioner to invoke diplomatic immunity, the same may not be telescoped into this proceeding, where the petitioner accepts the slapping of the LOC, but only seeks suspension of the same temporarily for his business purposes.
c) The second occasion when the petitioner moved this Court was in W.P.No. 26460/2022. It is true that the petitioner was unsuccessful in canvassing his case for temporary suspension of the LOC. And it is also true that in the SLP (Crl) 9707 of 2023, which he petitioner https://www.mhc.tn.gov.in/judis 13/52 W.P.No.27856 of 2024 had preferred against the order of this Court, the Hon'ble Supreme Court chose not to interfere with the same, and the dismissed the SLP in limine. Therefore, the reasons for dismissal for the petitioner's prayer are available only in the order of this Court dated 05.06.2023 in W.P. 26460 of 2022. Significantly, this Order does not discuss how an everlasting LOC may impair petitioner's right to life and liberty guaranteed by Article 21 of the Constitution, his foreign nationality notwithstanding, and the existential challenges it poses on his life as an entrepreneur due to his indefinite stay in India since January, 2019.
d) It may be that today the LOC has become a reality in the petitioner's life, but is it not essential to ensure within the scheme of the Constitution that an existential paralysis of his life does not become a reality? An unreasonable continuation of LOC unlimited by time holds the prospects of eventually achieving it, but it is beyond the contemplation of the Constitution.
e) Today the petitioner is only an accused of an offence, and hence his case may not be equated to a convict seeking bail. And a final report speaks only part of the story - the story of the prosecution, and not story of the truth. The prosecution describes the petitioner https://www.mhc.tn.gov.in/judis 14/52 W.P.No.27856 of 2024 as the kingpin of the fraud but it has not been able to focus on the specific role the petitioner has alleged to have played. He is neither a share holder in any of the companies which are alleged to have defrauded the financial institutions, nor has he signed any papers. Is it therefore, appropriate to deny the petitioner his right to life and liberty which presently is limited only by his legal obligation to participate in the trial and to undergo sentence if convicted, with a mere accusation – an unilateral statement of the prosecution?
f) What may have started as a reasonable restriction on petitioner's right to life and liberty when it was originally issued may assume predatory tendencies if it is allowed to continue without a time-cap. A LOC operating indefinitely will be an unreasonable, unfair and also disproportionate exercise of executive action. Set in the context, given the fact that this Court has not earlier considered these aspects in its Order in W.P.No.26460/2022, the said Order, and also its confirmation by the Hon'ble Supreme Court may not ipso facto dis-entitle the petitioner from approaching this court again.
g) It will be only appropriate to confine the reasons in the Order of this Court in W..P.26460 of 2022 to the time in which it was set, and https://www.mhc.tn.gov.in/judis 15/52 W.P.No.27856 of 2024 may not be granted perpetual efficacy to bar petitioner's right to travel abroad eternally. Otherwise, it may amount to an unreasonable and unfair restriction on his fundamental right to life and liberty, supported only by a unilateral statement of the prosecution which the Constitution does not authorise.
h) The earlier order of this Court in W.P. No.26460/2022 must be placed on the same footing as orders dismissing a plea for bail. In other words, the plea seeking suspension of LOC is recurring in character for it interferes with the fundamental right to life on an everyday basis.
i) The petitioner is a first-generation foreign national. All his family and relatives are residents of India. It is hence, notwithstanding he obtaining a foreign citizenship, he predominantly resides in Chennai. And, it is hence, he never entertained an idea to flee the country even when the LOC was not in force, and has always abided by the law of this country.
Discussion & Decision
6. The following aspects about this case are unquestionable:
a) That the petitioner was arrayed as an accused in C.C.554 of 2023 https://www.mhc.tn.gov.in/judis 16/52 W.P.No.27856 of 2024 which the CBI has initiated with a FIR in case No. 9/2018 along with 28 others (which included certain bank officials. It may be stated that the FIR originally included Sec.13 of the PCA besides offences under the IPC, but since no sanction under Sec.19 of PCA was accorded to prosecute them, the final report was laid only for the afore-stated offences under the IPC). He is also being prosecuted along with others by the ED both before Chennai and Mumbai courts. And, the SFIO too, on its part has instituted a criminal proceedings against him and others.
b) That the petitioner along with few other accused persons in this case are foreign nationals, mostly citizens of Seychelles, with which, this Court is informed that India does not have an extradition treaty.
c) That a LOC was issued by the CBI before June, 2018, and it was suspended for a short period between 03.09.2018 and 27.01.2019.
During the period when LOC was withdrawn, the petitioner had travelled abroad to six different countries on six different occasions and had eventually returned to Chennai. (The details are provided in the typed set papers of the petitioner, but the investigating agencies have neither chosen to deny it in their counters, nor have they made any submissions during the arguments as to why this fact must be https://www.mhc.tn.gov.in/judis 17/52 W.P.No.27856 of 2024 discounted.)
d) Since 27.01.2019, due to re-clamping of LOC, the petitioner could not fly abroad and is safely grounded in Chennai.
e) That earlier the petitioner had moved this Court in W.P.No.26460 of 2022, and it was dismissed by a learned Single Judge of this Court on 05.06.2023, and when challenged before the Hon'ble Supreme Court, it refused to interfere with the said order.
7. When the petitioner has approached this court with an identical prayer earlier in W.P.No.26460 of 2022 it was declined, but does it stop the petitioner from approaching this Court again? To state it differently, can this Court now entertain this petition? This now takes this Court to a discussion to understand the significance of right to travel abroad, and how far it is available to a foreigner.
8.1 If it is anticipated that the present Order will be worked on the template of the Order in LOC – I, it is not flawed. While a reading of the entire Order in LOC – I is recommended for appreciating the approach of this court to the issue of LOC in general, for those who may not have the patience to search for it, portions thereof are extracted below:
https://www.mhc.tn.gov.in/judis 18/52 W.P.No.27856 of 2024 “6. The early torch bearers in this branch of jurisprudence in India is this Court in V.G.Row Vs State of Madras [AIR 1951 Madras 147], the Kerala High Court in Francis Manjooran Vs Government of India [AIR 1966 Kerala 20] and the High Court of Bombay in Choithran Verhomal Jethawani Vs A.G.Kazi [AIR 1966 Bombay 54] where Courts have treated right to travel abroad as a premium-fundamental right. In Satwant Singh Vs D. Ramarathanam [AIR 1967 SC 1836], the Supreme Court drew generous inspiration from the American jurisprudence where the US Supreme Court had championed the right to travel abroad as a facet of liberty, and endorsed it. This view finds regular re-enforcement from Maneka Gandhi Vs Union of India [AIR 1978 SC 597] to Satish Chandra Verma Vs Union of India [2019 SCC OnLine SC 2048]. While in V.G.Row case the First Bench of this Court decocted right to foreign travel from Article 19(1)(d) of the Constitution, the later decisions have most appropriately drawn justification from fundamental right to liberty in Article 21.
Right to Life Vs Right to Grow Vs Right to travel abroad:
12. Life in the fullest sense is accomplished when the life is allowed to grow and prosper, and is let to halt only where one chooses to halt. In that sense, right to grow and prosper cannot be limited to material growth, but it extends to every aspect of life, from physical, mental, material, emotional and spiritual well-being. From holidaying to building relationship to professional engagement to pilgrimage and education, there can be endless human activities which can fall with in this concept, https://www.mhc.tn.gov.in/judis 19/52 W.P.No.27856 of 2024 and each of them may contribute to one’s growth and prosperity.
The choice rests with the one who holds the right. How one exercises one’s right to life is not the concern of law as long as it is legitimate. In that sense the manner of its exercise is part of one’s privacy, and that space belongs to the one who holds the right and exercises it. If so viewed, right to grow and prosper can also be seen as part of right to privacy. Eventually, whether it is considered as an independent species of right or as a limb of right to privacy,it still belongs to the family of right to life.
13. To accomplish it is not an elusive dream, if the search for the Constitutional spirit, its values and guarantees, is not limited to the printed text of the Constitution, but to the fairness of human conduct, in the compassion for co-existing citizens and respect for human dignity (It may not endear the legal positivists For them, a neatly drawn up coaching manual is mandatory for graduating as a great cricketer, and the one who possesses it must necessarily have to become one). Anything which a human life strives to achieve in this country must be allowed to be achieved within the limited time it has. Deny a man his right to grow, his right to life will be devoid of its content and purpose.
14. There therefore, can be no brakes on the right to grow and prosper, except through a reasonable and fair procedure established by law, which is the job of the positive law. Reading Article 19 within Article 21 (indeed they have to be so read), displays an amalgam of natural law and positive law structures. While natural law tends to fix no upper limit for the right to life https://www.mhc.tn.gov.in/judis 20/52 W.P.No.27856 of 2024 and liberty, positive law steps into regulate it. It is hence Courts advocate due process of the legal procedure which positive law creates, as they are keen to optimize the opportunities that life holds for it to grow and prosper within the Constitutional space.
15. Any procedure that law establishes to interfere with the right to life and liberty cannot therefore exceed the proportionality of the requirements it aims to achieve. Minimalism appeals....
17. If right to grow and prosper is a facet of right to life, then necessarily right to travel abroad can be read not just an aspect of liberty, but also as an integral right within the right to life itself. Liberty and life do not exist in mutual exclusivity,but they fuse to define the life and its quality under the Constitution.....
18. Despite geographical barriers dividing the nations, despite the political ideologies separating human minds, the world still offers a lot to exchange within its constituent countries for mutual growth and prosperity. There is no world state, but surely there is a global village. And, every person’s right to life which the Constitution protects is part of this larger scheme. Opportunity to grow in the contemporary world is defined by the ability to see, seek and seize an opportunity, and where there is an opportunity to grow and prosper, there surely may arise a need to travel. Growth defies inertia and so does travel. https://www.mhc.tn.gov.in/judis 21/52 W.P.No.27856 of 2024 After all, man is not a grazing cow to waste his life in the meadow of the neighbourhood.
19. While understanding the absoluteness of right to life, it is often argued that it can never be absolute, as it can be limited by the procedure established by law. While this argument is not without merit, it is equally unassailable that the power of the State from which flows the procedure to interfere with right to life and liberty is also not absolute either. The power to frame or establish any limiting procedure on right to life and liberty can never be arbitrary, excessive or disproportionate, and at all times shall conform to procedural or even substantive due process....perceptional re-engineering of Article 21 has now become a Constitutional imperative for re-orienting one’s understanding that right to life should not be measured as a summation of the restrictions which any procedure established by law may impose, but in terms of the quality of life which is still assured despite such interferences by law. If viewed thus, right to life under Article 21 approximates relative absoluteness in its Constitutional sense, inspite of the State exercising its power to interfere with it. After all the space is intended for equal citizens, nay, can be even for equal persons, and hence there are bound to be regulations.
Right to Travel Abroad and the LOC
20. The right to grow and prosper however, can be hamstrung when a person facing a criminal prosecution is issued with a Look Out Notice (LOC) by the investigating agency. The one https://www.mhc.tn.gov.in/judis 22/52 W.P.No.27856 of 2024 against whom it is issued can walk up to the immigration office in the airport but cannot board the plane. Whither goes his right to travel abroad? Whither goes his right to grow and prosper? And, whither goes his right to life?
21. A LOC is a creation of the Executive through an Office Memorandum of the Union Home Ministry. Its objective is variously understood, from treating it as a device to monitor the movement of nationals and foreigners to a procedure for looking out for absconding accused persons. Contextually, the following passage from Sumer Singh Salkan Vs Assistant Director and Others [ILR 2010 (6) Del 706] is significant:
“11.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…LOC is a coercive measure to make a person surrender to the investigating agency or Court of law.”
22. Until 2021, an Office Memorandum enabling the issuance of LOC has capped the upper time limit for restriction on right to travel abroad to one year, but the 2021 OM has taken it away, which paves way for imposition of LOC infinitely. This appears to have become a trend: either LOC is extended annually under https://www.mhc.tn.gov.in/judis 23/52 W.P.No.27856 of 2024 the 2018 regime, or infinitely post 2021 OM.
23. The anxiety of the criminal justice administration is, and at all times can be, only to ensure that the person charged with the commission of crime and facing trial for the charges in this country, submits to the jurisdiction of our courts and participates in the trial. It is understandable. It is, and at all times it ought to be, least concerned with how an accused person lives his life and does his or her business Our criminal justice administration, nay even the criminal justice system developed by law holds right to dignified life of even a convict supreme. In Sunil Batra Vs Delhi Administration [Sunil Batra II, (1980) 3 SCC 488], it was held that a convict only loses his freedom of movement, but not his right to live with dignity, which Article 21 of the Constitution recognises as inhering in every human being living in this country – both nationals and foreigners alike. The objective to secure the presence of an accused for his participation in the trial and to undergo any penal consequences in the eventuality of the Court upholding the charges, may not be construed as a license to enable any interference with the private life of an accused. After all, where the accused has already submitted to the process of the Court, must the accused still be strung on leash fastened to the judicial chair? Criminal law is best administered when it leaves least inconvenience on the personal lives of the accused persons, lest the faith this country has on the Constitutional principles emanating from the judicial interpretation of Article 21 will be rendered farcical. There can never be an insult to the Constitution and what it declares. https://www.mhc.tn.gov.in/judis 24/52 W.P.No.27856 of 2024
24. It could now be derived that right to travel abroad need not necessarily be need based. To reiterate, if the concern of the criminal justice administration is only to ensure the participation of the accused in a criminal proceeding, then law and its administration should focus only on that, and not on any other ancillary issues affecting the personal lives and privacy of accused persons. If not, we may end up converting the stay of a foreign national into a kind of house arrest in this country. That may not be an ideal way to understand the Constitution. Hypothetically, if after a couple of decades, a person accused of committing a crime in India and restrained from travelling abroad and stripped of his opportunity to grow and prosper, is acquitted, will the legal system recompense him of all that he has lost?
25. An indiscriminate use of LOC need not necessarily ensure that a person accused of an offence in all circumstances will submit to law and participate in the trial. At least there are three circumstances, out of which two might not even be in the control of the accused, which indicate that issuance of LOC might not guarantee either the legal system or those who administer it that detaining an accused within the confines of our territorial waters will ensure his participation in the trial: (a) the LOC slapped accused absconding within the territory of India; (b) the accused contracting physical/mental incapacity of such a nature that he might not be able to participate in the trial; and (c) the accused dying. If LOC’s efficacy is not https://www.mhc.tn.gov.in/judis 25/52 W.P.No.27856 of 2024 absolute in achieving its intended purpose, is it not necessary that its issuance is balanced? Set in the context, the LOC which neither is a product of the Legislature nor possesses the character of an executive order comparable to a legislation cannot overreach its purpose to fetter an individual’s right to grow and prosper in his lifetime.
26.... As would be discussed later, a LOC is not without its utility, yet to freeze a person’s right to travel unlimited by time will be a crime against the Fundamental Rights guaranteed to an individual, as its effects transcend beyond to violate right to grow and prosper, and hence right to life, and consequently it breaches the values of human rights which the Constitution aspires to uphold.
27. Driven perhaps by the fear psychosis that everyone who gets an opportunity to travel abroad will flee, if understood in the context of the discussion above, the fears of the prosecution will blur the neutrality of the vision with a strong dose of prejudice. To state it differently, when the law requires the Court to presume the innocence of the accused, the LOC requires the Court to believe his guilt. If it is otherwise, the focus of the Office Memorandum ought to have been not to stop a person accused of an offence from travelling abroad but to ensure that he would return back to participate in the trial. In other words, the foundation for LOC rests on a faulty pivot and it very seriously requires an attitudinal shift in appreciating the very issue. https://www.mhc.tn.gov.in/judis 26/52 W.P.No.27856 of 2024
29. There is therefore, a compelling need to convert our ability to expand the right to life from being a Constitutional theory into plain action. Be it our sense of appreciation or respect for application, we have one Constitution, and it must be respected. Therefore, more than deliberating on whether this Court should grant leave to the petitioner to leave the country temporarily or not, the question must be why the court should not grant leave to travel abroad. But should the court be approached often for its leave, if right to travel abroad is a fundamental right?
Balancing right to travel and LOC :
30. When neither the right to life can be enjoyed unlimitedly, nor any procedure interfering with it can be absolute, there arises a need to strike an ideal balance between them when they are in conflict. As discussed in paragraph 19, despite any law sanctioning regulatory interferences with right to life, it still can approximate absoluteness, which implies that no legally enabled restriction, regulation or interference can be excessive, arbitrary, or disproportionate and destroy the content and purpose of right to life. If the legislature and/or the Executive consciously or unwittingly entertains any extravagant temptation to cross the line of moderate-regulation defined by its purpose, the Court’s decree might have to show them where they ought to stop. Here in this case, the Court is faced with a conflict between right to travel (as an aspect of right to life) which inheres in an accused person and the power of the investigating https://www.mhc.tn.gov.in/judis 27/52 W.P.No.27856 of 2024 agency to issue LOC without a time-cap.
31. Therefore, even though this court has recorded its utter dissatisfaction over the arbitrary issuance of LOC, it must still be stated to the credit of LOC that it atleast enables to monitor whether the person, who is under a duty to submit to criminal law requirements, is within the country or not. Therefore, irrespective of the legal basis for issuance of LOC, this Court would advocate for LOC to continue. What however can be irksome is the expression LOC, and the shades of indignation it possesses, since it is being slapped against the law-abider and the law-evader alike, when its intended objective needs focus on absconders of law. However, till the Executive shapes and fashions an alternative mechanism with equal efficacy, LOC may have to continue but with a rider that it does not destroy right to travel abroad and kill right to grow and prosper perpetually. 33(b). Secondly to the courts. An adjunct aspect that may be stated is when a person accused of an offence has a fundamental right to travel abroad, and if he must be subjected to least inconvenience by the criminal justice administrative mechanism, then, why should he be forced to seek permission from the court for his travel abroad every time? Does not an intimation to the Court and the investigation agency about the proposed foreign travel suffice? Here LOC as a monitoring tool has a critical role to play. This apart, often Courts are invited to debate on the reasons for a foreign travel, but why should they concern the court, when its concern should be limited to https://www.mhc.tn.gov.in/judis 28/52 W.P.No.27856 of 2024 ensuring the return of the accused person who travels abroad through ideal court imposed or executive devised conditions? Court may not decide how an accused should live his life, and why he should travel abroad. Plainly that is not Court’s business. Its time our system and attitude evolved to make life truly least inconvenient to the accused person, lest it may unwittingly divide the Constitution into one which is theoretical (reserved for the lecture halls) and the other which is applied, when in reality there can be one Constitution- the one that speaks, and functions the way it speaks. It is underscored here, as much as the executive action, even the judicial process may not exceed to interfere with the right to life of an accused beyond the extent which the legal process of this country requires.” 8.2 The quintessential points that could be formulated from the above passage are:
a) Right to grow and prosper is a facet of fundamental right to life, and right to travel abroad is adjunct to right to grow and prosper, and hence integral to right to life. Right to travel abroad therefore is not just an aspect of fundamental right to liberty, but also is an aspect of fundamental right to life.
b) Slapping LOC unlimited by time is anathema to right to life since by restricting right to travel abroad, it directly affects one's right to https://www.mhc.tn.gov.in/judis 29/52 W.P.No.27856 of 2024 grow and prosper.
c) The fact that an accused's presence is required only for him to participate in a criminal trial and to undergo sentence if he is convicted does not ipso facto imply that his right to life should be crippled otherwise. Criminal justice is best administered when the inconvenience it leaves on the life of the accused is the least.
Therefore, the Court should not focus on how to stop the accused from travelling abroad, but how to secure his return with apt conditions.
d) Despite the undesirability of issuing a LOC for an indefinite period, LOC still serves a utility as it enables the Court and the investigating agency to monitor the movement of an accused on whom is issued a LOC.
e) Since right to travel abroad is part of the fundamental right to life, procedure must be made easy for him to enjoy, experience and exercise his fundamental right to travel abroad with least intervention of the Court. This implies that he need not approach the Court to seek permission every time he proposes to travel abroad, but only needs to intimate the Court and the investigating agency about the same and to undertake the travel on conditions https://www.mhc.tn.gov.in/judis 30/52 W.P.No.27856 of 2024 which the court may set. And, neither the Court nor the investigating agency has the right to probe into the purpose of such travel, since the purpose of travel is part of an accused's privacy which again is part of his fundamental right to life. It is in the backdrop of the above principles, this Court will now embark on an understanding on the petitioner's right to travel abroad - the right of a foreigner, accused of committing an offence or offences under the Indian law, on whom was slapped a LOC.
9. The Constitution is laudable for its perspicacity to equate a foreigner with a citizen of this country, when it declared that right to life should not be limited to citizens but must be available to all persons, a foreigner included. 'Vasudeiva Kudumbakam'. “VôÕm FúW VôYÚm úLÇo” (Yaadum Oore Yaavarum Kelir)1. It is a vision-statement of the Constitution voicing its support for human dignity and equality for all who reside in this country, a foreigner included. Can there be a stronger statement to exemplify the broader vision of the Constitution framers who have batted for equating the citizens who have given unto them the Constitution, with a non-citizen who is 1 Pronounced: Yaa-dum OO-re Yaa-va-rum Kay-lir; Meaning:"We have a sense of belonging to every place and everyone is our own"; an ancient Tamil literature, Purananooru, Iyal Thamizh 192. https://www.mhc.tn.gov.in/judis 31/52 W.P.No.27856 of 2024 a mere resident for the time-being? A nine Judges Constitution Bench of the Supreme Court appreciated equality as the core theme to preserve and enhance human dignity which the Constitution professes and propagates when it observed in State Trading Corporation of India Ltd., Vs CTO and Others [AIR 1963 SC 1811]:
“5. Before dealing with the argument at the Bar, it is convenient to set out the relevant provisions of the Constitution. Part III of the Constitution deals with Fundamental Rights. Some fundamental rights are available to “any person”, whereas other fundamental rights can be available only to “all citizens”. “Equality before the law” or “equal protection of the laws” within the territory of India is available to any person (Article 14). The protection against the enforcement of ex-post facto laws or against double-jeopardy or against compulsion of self-incrimination is available to all persons (Article 20), so is the protection of life and personal liberty under Article 21 and protection against arrest and detention in certain cases, under Article 22. Similarly, freedom of conscience and free profession, practice and propagation of religion is guaranteed to all persons........ These in general terms, without going into the details of the limitations and restrictions provided for by the Constitution, are the fundamental rights which are available to any person irrespective of whether he is a citizen of India or an alien or whether a natural or an artificial person. On the other hand, certain other fundamental rights have been guaranteed by the Constitution only to citizens and certain disabilities imposed https://www.mhc.tn.gov.in/judis 32/52 W.P.No.27856 of 2024 upon the State with respect to citizens only. Article 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, etc. or from imposing any disability in respect of certain matters referred to in the Article. By Article 16, equality of opportunity in matters of public employment has been guaranteed to all citizens, subject to reservations in favour of backward classes.......” In Sarabanan Sonowal Vs UOI [(2005) 5 SCC 665], the Supreme Court has pointedly held that a non-citizen is entitled to fundamental rights under Article 21. It however, must be underscored that in Louis De Raedt Vs UOI [(1991) 3 SCC 554] and in State of Arunachal Pradesh Vs Khudi Ram Chakma [1994 Supp (1) SCC 615], the Supreme Court has held that even though the resident-foreign nationals in India have a fundamental right to life and liberty under Article 21 of the Constitution, still they do not have a fundamental right to reside here, and that their stay in India can be discontinued by the Government without assigning reasons.
10. The issue here, however, does not involve a question of a foreigner insisting to reside in India but about the inability of a resident-foreigner to travel abroad. He may not blame the CBI for spoiling his right to travel abroad, for he faces the prospects of facing more than one criminal trial in https://www.mhc.tn.gov.in/judis 33/52 W.P.No.27856 of 2024 India. But the issue is, can a person accused of an offence in this country, and the one who is entitled to be presumed innocent till the prosecution establishes his guilt, be detained in this country indefinitely without even a right to travel abroad temporarily?
11.1 As discussed in Pathan Apser Hussen (LOC I case) [W.P. No.27686 of 2024], merely because the investigators are under excessive anxiety that anyone who falls in their net might flee from the country if given an opportunity to travel abroad, the same need not be shared or patronised by the Courts, for the Courts have an unenviable duty to protect the fundamental rights of a person under Article 21 – be it a citizen of this country or a foreigner.
11.2 The second aspect emphasised in LOC-1 case is that a mere stay in India does not guarantee that the object for detaining an accused in India can accomplish the purpose. Given the uncertainty of life – from disease to death, any short term plan may work, but not a long term proposal. And the Indian experience has been that a litigation is chiefly a long term if not a long drawn proposal. Another associated aspect is that, what if after all the wait for a few decades, an accused (which includes a foreigner) is acquitted by the https://www.mhc.tn.gov.in/judis 34/52 W.P.No.27856 of 2024 Court? Hence a mere suspicion however strong it might be, should not enjoy a greater prominence than required, and cannot provide a justification for interfering with the right to life and liberty of an accused, irrespective of his nationality, beyond the levels of tolerance which the Constitution enables and permits.
12. Any life which is entitled to grow and prosper under the Constitution shall not be shackled infinitely for it will be a transgression on one's fundamental right. This Court notices that the Bombay High Court in Viraj Chetan Shah Vs Union of India and Others [ W.P. No. 719 of 2020, dated 23.04.2024] has doubted if the Office Memorandum through which issue of LOC is sanctioned can be a procedure established by law. The court has observed:
“100. The OMs are ex facie not “law” and are by no stretch of imagination “procedure established by law”.It is inconceivable that the OMs — purely executive instructions or a framework or guidelines — can ever curtail the fundamental right to travel abroad.
101. The expression ‘procedure established by law’ immediately connotes two aspects operating simultaneously: (i) there must be a procedure; and (ii) it must be ‘established’ by law. It is, therefore, not enough to say merely that there is a ‘procedure’.
When we speak of it being ‘established’, we mean that the procedure is set down not only with a degree of structural https://www.mhc.tn.gov.in/judis 35/52 W.P.No.27856 of 2024 formality, but that it is a procedure that has statutory force. Executive instructions, guidelines and frameworks absent a controlling statute do not and cannot constitute a ‘procedure established by law’.” Now, even if the OM is presumed to be a procedure established by law, as I observed in LOC-I case, it cannot stay alive without a time cap, otherwise, it will act disproportionately to the purpose that is sought to be achieved, and runs the risk of being tainted with unreasonableness, arbitrariness and unfairness. And, here a foreigner, resident in India, cannot be discriminated for he is entitled to the same protection both under Article 14 and Article 21 of the Constitution which the citizens enjoy. Hence, the petitioner's prayer for a foreign travel requires serious consideration. 13.1 However an ancillary issue, considering which now remains critical is to ascertain the effect of the Orders of this Court, rejecting the petitioner's earlier petitions and their effect on the present proceeding. Will those proceedings be a bar for entertaining this petition? This Court holds it in the negative, and the reasons are:
a) If right to travel abroad is recognised and acknowledged as a facet of right to life and liberty, then it forms a definitional feature of https://www.mhc.tn.gov.in/judis 36/52 W.P.No.27856 of 2024 one's existence with dignity. Any interference, even if it is legitimate, still from the standpoint of the one whose rights are so interfered with, will provide him with a cause of action for remedying his perceived violation of his fundamental rights. Any permissible executive action through the procedure established by a fair law enabling interference with right under Article 21, can therefore be justified only as long as it does not breach the limits of reasonableness, evaluating which falls within the domain of the Court. And this duty of the Court to review the procedural interference with the right under Article 21 for their reasonableness, arbitrariness, fairness and proportionality will be recurring2 whilst acting in discharge of its constitutional duties as a sentinel on the qui vive.
b) Indeed, it necessarily has to be recurring, for reasonableness of interference with right to life has a possibility to vary with time. In other words that which may begin as reasonable and fair interference by the executive may transform into its opposite based on the duration of their continuity, and the effect they may have on 2 Even a legislation, which was found to be constitutionally compliant at a particular point in time, may, after a lapse of time can be found to be arbitrary (See Malpe Vishwanath Acharya Vs State of Maharashtra [AIR 1997 SC 602] ).
https://www.mhc.tn.gov.in/judis 37/52 W.P.No.27856 of 2024 the right to life. If so understood, what may be considered as a justifiably reasonable interference with petitioner's right to travel abroad a couple of years ago need not remain stationary there. When the impact which a LOC leaves on right to life and liberty is recurring, then the cause of action to protect the right will also be recurring. Necessarily, the Court's duty to review the justifiability of the continuity of executive action must also be recurring.
c) Secondly, in W.P. No.19743 of 2019, the issue before the Court was the petitioner's entitlement to claim diplomatic immunity against issuance of the LOC. And, this precisely is the issue which engaged the court. It is true that in the penultimate paragraph of the said Order, the learned Single Judge who delivered it had made a solitary statement which reads: “Coming to the contention.... qua the petitioner’s fundamental right guaranteed under Article 21 of the Constitution of India to go abroad, be it noted that, the right is not absolute, but is subject to valid restrictions”. This statement is more a statement of law and not facts, since the Court did not discuss how the LOC can affect the life of the petitioner in the long run. And, it may be stated that a LOC which may be considered fair and reasonable at a time when the said Order was delivered can https://www.mhc.tn.gov.in/judis 38/52 W.P.No.27856 of 2024 easily become unreasonable owing to its continuity over a passage of few years. As stated earlier, if the Court is under a duty to review if continuing the issuance of LOC for close to six years now is justifiable, then it becomes a current issue before the Court.
d) Turning to W.P.No.26460 of 2022, where the petitioner had approached this court with an identical prayer as in this case, the learned Single Judge had approached the issue from an entirely different perspective and has not considered the issue from the perspective of right to life and liberty and also the ramification of continuing the LOC infinitely on right to life and liberty.
e) If right to protect one's fundamental right provides recurring cause of action, and if the duty of the Court to review the executive interference with the same for its fairness, reasonableness or arbitrariness is also recurring, then the previous orders cannot operate as res judicata.
13.2 Significantly none of the two Orders referred to above has chosen to consider the conduct of the petitioner, when he had travelled abroad between 03.09.2018 and 27.01.2019, and returned to India when he knew that he was an accused in the present case as well as in a case registered by the ED, which https://www.mhc.tn.gov.in/judis 39/52 W.P.No.27856 of 2024 is now pending before the Special Court in Chennai. As rightly argued by the petitioner's counsel, when he had all the opportunity to flee, the petitioner did not. What more demonstrable conduct one may require, when the prosecution does not deny or dispute this fact? Life of law surely is not logic, but its experience should not be loaded with subjective fears.
14. This Court does not hesitate to hold that the petitioner is entitled to travel abroad, and to detain him in this country infinitely through a LOC is an unreasonable exercise of executive power that interferes with his fundamental right to travel abroad.
15.1 Having stated thus vis-a-vis the petitioner, this Court also adds that it entertains a serious doubt as to how far the Court may recognise the right to travel abroad of a person accused of involved in a crime involving drugs and association with international drug cartel, or part of any terror network, or associated with international child pornography etc.? They are offences against humanity world over, and holds the potential to destroy it. It requires a policy decision which the Courts are bound not to ignore. 15.2(a) Another allied aspect which this Court intends to indicate is that the https://www.mhc.tn.gov.in/judis 40/52 W.P.No.27856 of 2024 PMLA is an off-shoot of the UN Resolution S-17/2 dated 23.02.1990, and hence every member country of the UN may necessarily have some legislation on money laundering. Today, money laundering is made easy through cyber platform and hence tracking its trail poses near-insurmountable challenge to even the best talent in investigation. Is it not therefore necessary that laws on money laundering among member-countries of the UN be backed up by a back-up legislation on exchange of accused persons through easy agreements under the aegis of the UN? If PMLA is born of India's international commitment to abide by the UN Resolution, then for its hassle- free working beyond the tedious route of extradition, there may have to be a UN sponsored legislation among the member countries for this purpose. Will India take the lead?
15.2 (b) There, therefore, exists an urgent need to balance an individual's right to free transborder movement and also to protect the economy of the country. It may be true of every member nations of the UN. It requires a deeper study and understanding beyond the judicial perception. After all managing the economic interests of the country rests with the Executive, which at times may come into conflict with an individual's fundamental right to life, something Courts are zealous of protecting. It needs to be https://www.mhc.tn.gov.in/judis 41/52 W.P.No.27856 of 2024 underscored that Judges are rarely economists, and the economists hardly can pretend to be judges; and the investigators are neither as they are invariably caused to grope in the dark. Therefore when economic offences are listed by the prosecution to oppose the right to life and/ or liberty of the accused persons, the tendency of the Court in general is either to follow the prosecutor's perception and magnify the offence, or to move to the other extreme and speak for liberty incessantly ignoring the economic risks involved, but neither may be the right approach since they hold a tendency to corrupt the conscience of the court intellectually: court then may become an easy victim of its own prejudices which even it may not realise. This is contra-indicated to judicial neutrality, and hence there is a need for balancing the extremes. But where is that informed and legislatively enabled middle space for balancing? And, what materials and assistance has the court to engage in balancing? But still Courts are frequently required to decide the conflict between economic interests of the country caught in a crime and the fundamental right to life of an accused alleged to be a party to the crime. The issue is far too complex which superficiality in perception may easily conceal. It’s time the Executive realised the importance of the issue and addressed it comprehensively, and most significantly, urgently. It may not be appropriate to define or dictate the working of the Rule of law through any value-based https://www.mhc.tn.gov.in/judis 42/52 W.P.No.27856 of 2024 moral perception of individual judges, for it may mar the consistency and predictability of judicial outcome which are the hallmarks of a healthy judiciary in a functional democracy. If the seriousness of the issue is ignored, then the judicial approach may run the risk of varying with the 'chancellor's foot' .
16.1 Having upheld a foreigner-accused's right to travel abroad, this court does not ignore the prosecutorial anxiety entirely. It is hence in the Order in LOC-I case this court advocated that the right to travel abroad must be balanced ideally with such workable conditions which may reasonably ensure that the accused who travels abroad returns to this country. 16.2 There is another grey area. Here foreign national can also be segregated as first generation foreign national of Indian origin, who generally may have strong roots in India, second generation foreign national of Indian origin who is not likely to have such strong roots, and foreign nationals with no connection to India. The conditions that reasonably may ensure the return of the accused or his participation in trial before the Indian courts may have to vary. Subject to the same a balancing act is attempted. https://www.mhc.tn.gov.in/judis 43/52 W.P.No.27856 of 2024 The Balancing Act
17. To accomplish the purpose through a self-operating mechanism this Court merely chooses to walk through the lane laid in LOC-I. It reads as below:
a) In the first instance a petition should be filed before the trial Court for a direction to suspend the LOC, and to require the Court to set out the conditions for travel abroad. It may give reasons for travel, whose purpose is only to provide the setting for the Court _.(Surely, this Court has all the powers to entertain a similar petition but except in cases of emergencies such as medical emergency or death;
it would be advisable that petition for leave to travel is filed before the trial Court since the trial Court will have all the facts before it, which may have a bearing when it frames its conditions).
b) Once the petition is filed, the Court may not look to the reasons for travel, but should focus on the nature of conditions that may be imposed for the return of the accused person to India. Here, the prosecution may have a right to make its statement to the Court.
c) So far as the conditions that may be imposed are concerned, the Court may devise those, which are effective, which hold reasonable assurance that the accused may return to India, and are also workable. Some suggested conditions are:
https://www.mhc.tn.gov.in/judis 44/52 W.P.No.27856 of 2024 i. To require the accused person to provide any security either by depositing a stated sum in the Court, or any property whose value may be equivalent or approximates the said sum or in addition to the said sum;
ii. To require any relative or a business associate of the accused person, who is a frequent traveller abroad with an active Indian passport, (the number of such foreign travel may vary from case to case, and the Court may have to satisfy itself based on each particular case) to provide surety for any stated value, and also to deposit the passport with the investigating agency (or even at the office nearer the home of the surety). Once the accused returns to India, the passport of the surety concerned should be returned to him or her. In all cases due acknowledgement must be issued by the investigating agency. iii. The condition (i) may either be given by the accused person himself or herself, or by any other person for the accused person, which may include sureties or any other.
d) Where in a case more than one accused persons is a foreign national (as in the present case), not all the foreign nationals should be granted leave to travel abroad at the same time. It is advisable that https://www.mhc.tn.gov.in/judis 45/52 W.P.No.27856 of 2024 at any point of time one foreign national alone may be allowed to travel abroad unless more than one is identically placed and seeks to travel abroad for an identical purpose. (for example, if there is a death, and if the foreign nationals against whom the LOC operates are the children of the one who died, then the Court may consider granting leave to travel abroad to both but not otherwise).
e) Once the conditions imposed are complied, the Court may direct the suspension of LOC during the period of travel.
f) After the first occasion, every time an accused proposes to travel abroad, he or she only needs to file a memo in the petition first filed, intimating the dates of proposed travel, and comply with the conditions originally set out.
g) The prosecution may seek modification of any condition for any specific reasons, and the Court shall address the issue through a speaking order.
h) Once the conditions are complied with, the Originating Authority shall suspend the LOC during the period of travel, and restore it on the accused person’s return to India. This method can be replicated for every travel abroad.
https://www.mhc.tn.gov.in/judis 46/52 W.P.No.27856 of 2024
i) The conditions illustratively given in (c) can be substituted, if the accused person himself/herself gives anything which is equally efficacious.
j) The conditions listed above are not mandatory if the investigation agency has reasons to believe that the accused will return to India, and conveys the same to the Court.
18. This Court therefore, holds that the petitioner is entitled to travel abroad and hence should be allowed to travel abroad in the manner delineated in paragraph 17 above but on the following specific conditions:
a) The petitioner shall file an affidavit providing (i) his proposed dates of foreign travel to the trial Court or courts and all the agencies which have issued a LOC.
b) The petitioner shall execute a personal bond for Rs. 50 lakhs and with two sureties for a like value of whom one surety must be his relative.
c) The petitioner shall produce security for Rs.50 crores. It may be by himself alone, or by him along with any other or others, or by any one or more persons on his behalf.
d) To start with, the petitioner shall not visit Seychelles (with which https://www.mhc.tn.gov.in/judis 47/52 W.P.No.27856 of 2024 India does not have an extradition treaty). Petitioner's request to travel to Seychelles may be considered later by the trial court after observing how the petitioner generally abides by the terms of the conditions herein made, and also after hearing the prosecution. The first respondent is required to monitor the same.
e) Petitioner shall not be entitled to travel abroad on dates when his presence in the court is required for any specific purpose by the court, unless he obtains necessary leave as per the applicable procedure law. It is however, made clear that if it is a general posting when there is no trial or hearing that warrants his physical presence in the court, then subject to what is herein stated above he may travel. It is further clarified, the entire responsibility is on the petitioner in following this condition.
f) The petitioner shall not travel abroad during the dates when any of the co-accused in any of the cases in which he is also an accused are themselves foreign nationals, travelled abroad. Read para 17(d).
g) The two sureties should give separate undertaking through their affidavit before the Courts concerned that the petitioner will return back to India as per the schedule.
h) One of the sureties (either a close relative or the business associate https://www.mhc.tn.gov.in/judis 48/52 W.P.No.27856 of 2024 of the petitioner) shall possess a valid Indian passport with a habit of travelling abroad. The said surety holding the above referred to Indian passport shall leave his/her passport with the CBI. On deposit of such passport, the CBI shall issue an acknowledgement of receiving that passport and hold the passport till the return of the petitioner to India. On the return of the petitioner, CBI shall return the passport to the surety concerned after obtaining receipt.
i) The LOC issued by the CBI or any other agency against the petitioner shall stand suspended during the period when the petitioner travels abroad.
j) Once the conditions are complied for the first time, for future travels abroad, the petitioner is required to intimate the trial court and the investigating agency, but subject to the compliance of the conditions herein stated on each of the occasions.
k) The trial court can modify the conditions after closely observing how the conditions herein above work, and how well the petitioner comply with the conditions, but after hearing the prosecution.
19. The petition is accordingly allowed. No costs.
21.12.2024 https://www.mhc.tn.gov.in/judis 49/52 W.P.No.27856 of 2024 To:
1.Foreigner Regional Registration Officer (FRRO) Bureau of Immigration, Ministry of Home Affairs Government of India No.26, Haddows Road, Chennai - 600 006.
2.The Secretary Ministry of Home Affairs Government of India South Block, New Delhi - 110 001.
3.The Deputy Superintendent of Police Central Bureau of Investigation (CBI) Bank Securities and Frauds Branch No.36, Bellary Road, Ganga Nagar, Bangalore - 32.
4.The Deputy Superintendent of Police Central Bureau of Investigation (CBI) Plot No.5-B, CGO Complex Lodhi Road, New Delhi - 110 003.
5.The Central Vigilance Commissioner Satarkata Bhavan, A-Block GPO Complex, INA New Delhi - 110 023.
6.The Assistant Foreigners Regional Registration Officer Bureau of Immigration Anna International Airport Meenambakkam Airport Chennai - 600 027.
7.The Director Directorate of Enforcement VI Floor, Lok Nayak Bhavan Khan Market, New Delhi - 110 003.
https://www.mhc.tn.gov.in/judis 50/52 W.P.No.27856 of 2024
8.The Joint Director Directorate of Enforcement Ministry of Finance, Department of Revenue II & III Floor, C Block Murugesa Naicker Complex 84, Greams Road, Thousand Lights Chennai - 600 006.
9.Serious Fraud Investigation Office Assistant Director and Investigating Officer 7th Floor, Fountain Telecom Building MG Road, Mumbai.
https://www.mhc.tn.gov.in/judis 51/52 W.P.No.27856 of 2024 N.SESHASAYEE.J., ds Pre-delivery order in W.P.No.27856 of 2024 21.12.2024 https://www.mhc.tn.gov.in/judis 52/52