Delhi High Court - Orders
49382 Of 2018 Sh. Pradeep Koneru vs Central Bureau Of Investigation on 28 February, 2019
Author: Najmi Waziri
Bench: Najmi Waziri
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 2962/2018 & Crl. M.A. Nos.33195, 48479, 49198 &
49382 of 2018
SH. PRADEEP KONERU ..... Petitioner
Through: Mr. Mukul Rohatgi and Mr. Sudhir Nandrajog,
Senior Advocates with Ms. Neeha Nagpal,
Ms. Devanshi Singh and Ms. Aditi P., Advocates.
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Sanjeev Bhandari, Special Public Prosecutor
with Mr. Prateek Kumar, Advocate.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
% 28.02.2019 It is the petitioner's case that de hors the constitutionality of the Office Memorandum dated 27.10.2010, issued by the Government of India, apropos issuance of Look Out Circulars (LOC), the document itself refers to the circumstances in which the LOC could be opened. Para 7 of the said Office Memorandum reads as under:-
"7. The High Court has answered these questions in its judgement 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 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.
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 LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending or having jurisdiction over concerned police station on an application by the person concerned.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 cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs."
Mr. Rohatgi, the learned Senior Counsel for the petitioner, contends that the opening of the LOC falls foul of the aforesaid clauses 7(a) and 7(d). Furthermore, the petitioner had already joined investigations at least nine times prior to the opening of LOC and there is no place of whisper, let alone a suggestion that the petitioner has evaded the process of law. He submits that oddly enough, the petitioner who is aggrieved of being compelled to part with monies for bribes, is a witness in proceedings under the Prevention of Money-laundering Act, 2002; whereas in this case, the CBI has made him an accused. It is in the context of this dichotonomous and conflicting position of two prosecuting agencies, that a writ petition had been filed and the Division Bench of this Court by an order dated 05.02.2019, directed that no coercive steps be taken against the petitioner till the next date of hearing. He further submits that pursuant to the opening of the LOC, the petitioner has been permitted by this Court, to travel outside the country and that the petitioner has never misused the liberty; he has also deposited in this Court, an FDR in the sum of Rs. 6 crores; the monies are lying blocked much to his detriment. On 18.12.2018 pursuant to an affidavit dated 17.12.2018 he had handed over to the CBI a list of immovable properties owned by him. The value of the said properties is stated to be over about Rs.8 crores. The CBI is in the process of verifying the same.
Be that as it may, the issue of justification in keeping the LOC open is to be examined.
The learned Trial Court vide its order dated 12.09.2018, while permitting the petitioner to travel outside the country, had reasoned as under. Paras 10 and 11 read as under:-
"10. Coming to the present case, it is not the case of the CBI that applicant/accused is either evading or not appearing on notice. It is also not the case of the CBI that accused is likely to evade arrest, because CBI is not making any claim to arrest the accused neither it is their case that he evaded arrest. The concern raised by Special PP for CBI for opening Look-Out Circular against the applicant/accused is that there is a likelihood of the accused leaving the country to "evade trial".
11. The fact that applicant/accused has been joining investigation as and when he is given notice by the 10 and in the absence of any material to indicate the possibility of applicant/ accused leaving the country to evade trial/arrest, the plea of CBI is too general and vague. Moreover, Look-Out Circular issued against the main accused Moin Akhtar Qureshi has been recalled by the previous court, therefore, in the. Facts and circumstances, on parity, there is no reason for continuation of Look-Out Circular against the applicant/accused. Hence, it is deemed just_and_proper to suspend the operation of Look-Out Circular dated 16.05.2018 issued by CBI against applicant/accused Pradeep Koneru from 17.09.2018 and 23.09.2018 and applicant/accused is allowed to travel to China for business purposes during this period, subject to following conditions:
(i) Applicant/accused shall furnish additional security in the form of FDR/bank guarantee for a sum of Rs.50 lacs.
(ii) He shall surrender his passport in court within 24 hours of his arrival in India.
(iii) In any eventually, accused will not request for extension of period for staying abroad.
(iv) He shall neither tamper with the evidence nor try to influence any witness in any manner and will not use the permission granted to-him contrary to the rules.
(v) This permission shall be subject to other applicable rules and will not be deemed as directions to any other authority except the permission from the side of the court.
(vi) He will submit the address of his stay in China along with telephone/contact numbers.
(vii) His surety will undertake to accept notice, if any on behalf of the accused in his absence.
(viii) He will inform the court before selling any of his immovable properties situated outside India (if any) during the period of his stay abroad from l7.09.2018 to 23.09.2018.
(ix) In case any of the above conditions is violated, the bank guarantee/FDR will be forfeited to the State."
The aforesaid order speaks for itself and the Court finds no reason to alter it. The petitioner has joined the investigations prior to the LOC and even thereafter, hence, there is no justification in the contention that he would evade the process of law.
Mr. Rohatgi, the learned Senior Counsel for the petitioner, who appears in person, states upon instructions that the petitioner shall continue to and undertakes to join investigations, whenever he is so called. The undertaking is accepted.
In view of the above, the Court finds no justification in keeping the LOC opened and it is liable to be quashed. However, Mr. Bhandari, the learned counsel for the CBI, submits that immovable assets of the petitioner are yet to be ascertained.
More than 8 weeks have elapsed since the order of 18.12.2018, however, in the interest of justice, let the documents be verified before the next date.
The learned Senior Counsel for the petitioner submits that should the value of the immovable assets of the petitioner be less than Rs. 6 crores, the petitioner will top up the same by depositing the FDR(s) to that extent.
At request, re-notify on 28.03.2019.
NAJMI WAZIRI, J.
FEBRUARY 28, 2019 sb