Andhra Pradesh High Court - Amravati
Yesasvi Bodduluri vs The Union Of India on 30 January, 2024
1
BSB, J
W.P.No.69 of 2024
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
WRIT PETITION No.69 of 2024
ORDER:
The present writ petition is filed under Article 226 of the Constitution of India for the following reliefs:
"...to issue a writ, order or direction, more particularly, one in the nature of Writ of Mandamus, a. Declaring the action of the respondents specifically the respondents No.1 and 2 in issuing a Look Out Circular in relation to Crime No.10 of 2022 on the file of CCPS, CID, AP, Mangalagiri, Guntur District, as illegal, arbitrary and violative of principles of natural justice and articles 14, 19 & 21 of the Constitution of India and consequently quash or set aside the alleged Look Out Circular issued against the petitioner herein in relation to Crime No.10 of 2022 on the file of the CCPS, CID, AP, Mangalagiri, Guntur District;
b. Direct the respondent No.8 to forthwith within 24 hours of the order of this Court, to address a letter to the respondents No.6 and 7 to close the LOC issued against the petitioner;
c. Direct the respondents No.6 and 7 to forthwith address a letter to the respondents No.1 and 2 to close the LOC issued against the petitioner and pass such other order as this Hon'ble Court may deem fit and proper in the circumstances of the case..."2
BSB, J W.P.No.69 of 2024
2. Heard the learned counsel for the petitioner and the learned standing counsel for CB-CID representing the respondents No.6 to 8.
3. The case of the petitioner in brief is as follows:
a. The petitioner is a permanent resident of Virginia State in the USA and on a personal visit to Hyderabad, he came to India to visit his ailing mother in Hyderabad. The petitioner is a software engineer by profession and a Non-Resident Indian and he owes his allegiance to the mainstream opposition party in the State of Andhra Pradesh namely Telugu Desam Party (TDP) and also a vocal critic of administrative policies of the incumbent Andhra Pradesh State Government through the social media platforms @ iThinkYash on Twitter, Facebook, Instagram and YouTube.
b. On 22.12.2023, on his arrival at the Shamshabad Airport, Hyderabad, he was detained by the immigration authorities by informing him that a Look Out Circular was pending against him and he was needed to be handed over to the Andhra Pradesh State Police in relation to the crime registered against him vide Crime No.10 of 2022 dated 05.08.2022 under Section 153-A, 505(2), 120-B 3 BSB, J W.P.No.69 of 2024 of I.P.C. and Section 66-C of IT Act, 2000. In execution of the LOC in relation to the crime, he was served notice under Section 41-A of Cr.P.C. on 23.12.2023.
c. The petitioner holds a valid visa until September, 2024 and the subsistence of the LOC has become the major impediment for his travel abroad. Upon service of notice under Section 41-A of Cr.P.C., there is no reason for keeping the LOC pending as it would curtail his right to travel abroad which results in curtailment of his fundamental right to freedom of movement under Article 19 of the Constitution of India. The petitioner wrote a letter on 24.12.2023 to the External Affairs Ministry, seeking immediate intervention in the matter.
d. The petitioner was just informed after repeated persistence that he should get a High Court order for setting aside the pending LOC. Hence, the writ petition.
4. The learned standing counsel for CB-CID representing the respondents No.6 to 8 filed counter affidavit opposing the petition stating that the petitioner is a permanent resident of Virginia State in 4 BSB, J W.P.No.69 of 2024 the USA and temporarily came to India as per the statement made by the petitioner in the writ petition and after his arrival to Hyderabad on 22.12.2023, in relation to Crime No.10 of 2022 under Section 153-A, 505(2), 120-B of I.P.C. and Section 66-C of IT Act, 2000 and Crime No.7 of 2023 under Section 153-A, 505(2), 504, 503 r/w 120- B of I.P.C. of Cyber Crime Police Station, CID, A.P., Mangalagiri, notices under Section 41-A of Cr.P.C. was served on him and as per the terms of the notice, the petitioner was directed to appear before the Investigating Officer on 11 01 20 24 for further investigation. During the course of investigation, the petitioner denied about his accounts on social media, contrary to the averments in his affidavit filed in the writ petition and the investigation is at the nascent stage and his presence is required for further investigation. a. She stated that the petitioner is a permanent resident of the USA and the Investigating Agency needs the presence of the petitioner for further investigation and the petitioner did not disclose his permanent residential address, e-mail address, WhatsApp number in the USA for serving notice on him for further investigation 5 BSB, J W.P.No.69 of 2024 and the passport was also returned to the petitioner after taking receipt.
b. She further stated that the petitioner had committed repeated offences under three crimes viz., Crime No.10 of 2022, Crime No.2 of 2023 and Crime No.7 of 2023. Further, the petitioner while leaving the CID Regional Office, Guntur, gave a statement to the electronic media criticizing the elected Government and also the Investigating Agency and it indicates that the petitioner has no regard for the law. c. She submitted that the petitioner can approach the concerned authorities who have issued the LOC seeking withdrawal of the LOC and also the concerned jurisdictional Court for his redressal, but the petitioner approached this Court seeking a relief to set aside the LOC which is un-sustainable.
d. The Investigating Agency issued notice under Section 91 of Cr.P.C. to the Twitter and YouTube authorities to furnish certain information relating to the posts or videos uploaded by the petitioner and the same is awaited and further, the Investigating Agency has to secure the technical evidence and hence, the presence of the 6 BSB, J W.P.No.69 of 2024 petitioner is required for further investigation. Therefore, the writ petition is liable to be dismissed.
5. The learned counsel for the petitioner submitted that the pendency of the LOC is improper as no charge-sheet or final report is filed so far and the presence of the petitioner is not required unless C.C. is registered. In support of his submission, he placed reliance on the decision of the High Court of Judicature at Madras in Karthi P. Chidambaram Vs. Bureau of Immigration and others in W.P.Nos.21305 of 2017 and batch, dated 23.07.2018. The relevant paragraphs of the said writ petition is as follows:
"36. Mr.Gopal Subramanium submitted that the respondents have not been able to disclose the authority of law under which the respondents were issuing the Look Out Circulars. Mr.Gopal Subramanium also argued that even assuming that executive orders could be issued to abrogate fundamental rights, it was clear from the guidelines which had been issued by the Central Government on 27.10.2010 that a Look Out Circular should not be issued mechanically, but must only be issued when good reasons exist and when a person is avoiding warrants of arrest or avoiding trial in a criminal case.
40. Mr.Subramanium emphatically reiterated that the condition precedent for issuance of a look out circular was attempt to evade arrest. The petitioner was not in any manner seeking to evade the trial, since the case is at the stage of investigation and a final report or charge sheet has 7 BSB, J W.P.No.69 of 2024 not been filed. In the absence of filing of a charge sheet or a final report, it could not be assumed that the petitioner was going to evade trial.
69. The conditions precedent for arrest under Section 41 of the Code of Criminal Procedure without warrant as set forth in sub-sections (a) to (i) of Section 41(1) were wholly absent atleast as on the date of issuance of the Look Out Circular. In any case, there was no attempt to arrest the petitioner without warrant atleast as on 15.06.2017 when notice under Section 41-A was issued to the petitioner to appear before the Investigating officer on 29.6.2017. A notice under Section 41-A of the Criminal Procedure Code is issued directing the accused to appear before the Investigating Officer, when arrest of a person is not required, as observed by the Supreme Court in Arnesh Kumar, supra.
70. The legality and/or validity of a Look Out Circular has to be adjudged having regard to the circumstances prevailing on the date on which the request for issuance of the Look Out Circular had been made.
73. As observed above, the issuance of Look Out Circulars is governed by executive instructions as contained in the Office Memoranda Nos.25022/13/78-F1 dated 05.09.1979 and 25022/20/98-FIV dated 27.12.2000, as modified by Office Memorandum dated 27.10.2010. Such LOCs cannot be issued as a matter of course, but when reasons exist, where an accused deliberately evades arrest or does not appear in the trial Court. The argument of the learned Additional Solicitor General that a request for Look Out Circular could have been made in view of the inherent power of the investigating authority to secure attendance and cooperation of an accused is contrary to the aforesaid circulars and thus, not sustainable.
76. For the reasons discussed above, the impugned LOC is set aside and quashed. It is made clear that the order of this Court setting aside the impugned LOC will not impact 8 BSB, J W.P.No.69 of 2024 the criminal proceedings initiated pursuant to the FIR, referred to above, or any other proceedings initiated against the petitioner."
6. The learned counsel for the petitioner also referred to the decision of the High Court of Delhi in Sathish Babu Sana Vs. Central Bureau of Investigation and others, 1 in support of his arguments. The relevant portion of the said decision is as follows:
"10. The petitioner thus satisfies the test laid down by this Court in Sumer Singh Salkan (supra) as he has neither deliberately evaded arrest nor failed to appear before the Trial Court despite the non-bailable warrants nor has any coercive action been taken against him and he has travelled abroad number of times with the permission of the Court, which concession he did not misuse and therefore there is no justification in continuing with the LOC opened against the petitioner. Hence the respondent is directed to recall its request for opening the LOC against the petitioner. It is further directed that the petitioner will continue to join the investigation as and when directed by the Investigating Officer and any condition that is imposed by the learned Special Judge in the complaint lodged pursuant to the ECIR, when the petitioner seeks permission to travel abroad will also be applicable in the abovenoted RC No.224/2017/A- 001, till the charge-sheet is filed and thereafter, if the petitioner is charge-sheeted and summoned as an accused.
11. Petition and application are accordingly disposed of."1
2022 SCC Online Del 277 9 BSB, J W.P.No.69 of 2024
7. On the other hand, the learned standing counsel for CB-CID submitted that in view of the requirement of the presence of the petitioner for further investigation, on receipt of evidence of technical nature from the experts, the petitioner must ensure his availability to respond to the notice of the Investigating Officer and till such time, since he is a permanent resident of the USA and unless his whereabouts are known, it is difficult to serve notice to secure his presence. She further submitted that since the petitioner was served notice only under Section 41-A of Cr.P.C. and there is no undertaking by him or any sureties to make him available for the purpose of further investigation, it is necessary for the petitioner to provide the necessary details and in this regard it is required to impose certain conditions.
8. In this regard, she drew the attention of this Court to the order dated 09.01.2024 passed by this Court in W.P.No.641 of 2024.
"Considering the matter in the light of the specific averments in the writ petition more particularly Paragraph No.15 that he is citizen of India and is always available to the Investigating Agency, this Court is Inclined to pass following interim order.10
BSB, J W.P.No.69 of 2024
(i) The petitioner is permitted to go to Australia on 18.1.2024.
(ii) He shall file an affidavit in the Registry as also before the Investigating Officer on or before 12.1.2024, setting out all the particulars with regard to his travel to Australia and return to India and an undertaking that he would be available for investigation and trial of the case, in case charge-sheet is filed in the crime registered against the petitioner.
(iii) In the affidavit, the petitioner shall also furnish the address where he stays in Australia and his contact number.
(iv) He shall also execute a bond of Rs.5,00,000/- with two sureties for the likesum each to the satisfaction of the Registrar (Judicial), High Court of A.P., Amaravati.
(v) If the petitioner fails to return to India within the time specified in the affidavit, the said bond amount shall be liable to be forfeited to the Government and the sureties shall also be liable for forfeiture of the amount specified in the surety bonds."
9. She further submitted that the petitioner can also approach the originating authority for lifting the LOC, in case if he is aggrieved by the continuation of the LOC.
10. In reply, the learned counsel for the petitioner submitted that though the writ petition is field challenging the issue of the LOC, now, the petitioner limits his prayer to challenge the continuation of the 11 BSB, J W.P.No.69 of 2024 LOC. He further submitted that the petitioner is prepared to follow all the conditions, if any, imposed by the Court by granting any relief in his favour, mainly those mentioned in the case referred by the respondents.
11. In the light of the above stated proposition of law and the submissions made on both sides, this Court is of the considered view that the LOC pending against the petitioner can be set aside on the following conditions:
i. The petitioner shall file an affidavit in the Registry and also before the Investigating Officer on or before 02.02.2024, setting out all the particulars with regard to his permanent residential address as well as temporary residential address, if any, in the USA and the Office address, besides the information regarding the contact phone number in the USA, for reach through WhatsApp or any other mode and e-mail address. He shall further undertake to intimate any change in such details forthwith to the Investigating Officer.12
BSB, J W.P.No.69 of 2024 ii. The petitioner shall execute a bond of Rs.5,00,000/- with two sureties for the likesum each to the satisfaction of the Registrar (Judicial), High Court of A.P., Amaravati.
iii. The petitioner is at liberty to return to the USA on 04.02.2024 or the later date, on fulfillment of the above said conditions.
iv. In case of breach of the conditions, the amount in the bonds of the petitioner as well as the sureties shall be liable for forfeiture to the Government.
v. It is made clear that the Investigating Officer is at liberty to initiate fresh steps for issue of the LOC, in case if it is required.
12. With the above said directions, the present writ petition is allowed. There shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in this writ petition shall stand closed.
_______________________ B.S.BHANUMATHI, J 30th January, 2024.
cbn 13 BSB, J W.P.No.69 of 2024 HON'BLE Ms. JUSTICE B.S.BHANUMATHI C-131 W.P.No.69 of 2024 30th January, 2024 Note: Issue C.C. by 31.01.2024 b/o cbn