Karnataka High Court
Shri Asifkhader vs Central Bureau Of Investigations on 4 April, 2019
Author: Alok Aradhe
Bench: Alok Aradhe
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL 2019
BEFORE
THE HON'BLE MR. JUSTICE ALOK ARADHE
WRIT PETITION NO. 55157 OF 2018 (GM-RES)
BETWEEN:
SHRI.ASIFKHADER
S/O SRI ABDUL KHADER
AGED 50 YEARS
DIRECTOR, M/S.CRANES SOFTWARE INTERNATIONAL LTD.
R/O FLAT NO.CG-01, H.M. GLADIOUS APARTMENTS
NO.34, AGA ABBAS ALI ROAD, ULSOOR
BANGALORE - 560 008.
... PETITIONER
(BY MR.SANDESH J CHOUTA, SR.COUNSEL A/W
MR.CHRISTOPHER NOEL.A, ADV.)
AND:
CENTRAL BUREAU OF INVESTIGATIONS
BANK SECURITIES AND FRAUD CELL
BELLARY ROAD, GANGANAGAR
BANGALORE - 560 032.
REPRESENTED BY ITS INSPECTOR &
SPECIAL PUBLIC PROSECUTOR.
... RESPONDENT
(BY MR.P.PRASANNA KUMAR, ADV.)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE
RESPONDENT TO WITHDRAW THE LOOK-OUT NOTICE/ CIRCULAR
ISSUED AGAINST THE PETITIONER AT ANNEX-F AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:-
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ORDER
In this petition, under Articles 226 & 227 of the Constitution of India, the petitioner inter alia seeks a writ of mandamus to the respondent to withdraw the look out notice against the petitioner.
2. Facts giving rise to filing of this petition briefly stated are that the Zonal Manager of Bank of India, Bangalore Zone had furnished First Information on 24.05.2017 to the Central Bureau of Investigation. On the basis of the aforesaid information, the Central Bureau of Investigation registered a case against M/s Cranes Software International Ltd., and three of its Directors and unknown public servants. The petitioner has been arrayed as accused No.2. As per the prosecution case, the Company viz., M/s Cranes Software International Ltd., is engaged in the development and distribution of software and petitioner is one of its Director. The petitioner approached Bank of 3 India seeking working capital limit to the tune of Rs.30 Crores, which was sanctioned on 19.10.2006. The amount of loan was released after completion of the formalities. Subsequently, the petitioner approached the Bank for availing short term loan to the tune of Rs.40 Crores, which was also sanctioned and the aforesaid loan amount was disbursed on 31.10.2008. The petitioner as well as the other accused persons thereafter, requested the Bank for Corporate loan to the tune of Rs.100 Crores for acquiring the software company and to repay a sum of Rs.20 Crores to the Jammu & Kashmir Bank, Bengaluru. The aforesaid loan was also sanctioned and released in favour of the accused persons. However, the accused did not pay Rs.20 Crores to the Jammu & Kashmir Bank and withdrawn the funds between 31.07.2008 to 09.08.2008. It is the case of the prosecution that during the course of investigation, it was revealed that the accused has also availed corporate loan from Honkong and Shanghai Banking Corporation and the 4 aforesaid fact was not brought to the notice of Bank of India. The petitioner on his arrival from Dubai on 27.12.2017 was detained at the Airport and the fact that a look out Circular issued against him is brought to his notice. It is the case of the petitioner that he has been participating in the investigation with the Central Bureau of Investigation and was called for interrogation in the Month of June 2018 and thereafter, the petitioner has not been called for investigation. It is also pleaded in the petition that petitioner made a request to the Central Bureau of Investigation for supply of copy of look out Circular. However, the same was not supplied to him. The petitioner thereafter made an application under the Right to Information Act, 2005 for supply of copy of look out circular. However, even then, the copy of the Circular was not supplied to him. In the aforesaid factual background, the petitioner has approached this court.
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3. Learned counsel for the petitioner submitted that the petitioner's company had obtained a loan from ten banks to the tune of Rs.861 Crores, out of which an amount of Rs.614 Crores has been repaid. It is further submitted that the petitioner's company has to pay approximately an amount of Rs.250 Crores to the Bank. It is further submitted that the petitioner is not absconding and has cooperated with the investigation undertaken by the Central Bureau of Investigation. Therefore, the action of issuance of the look out circular against the petitioner is per se arbitrary and the look out circular has lost its life as the petitioner has already appeared before the Investigating Agency. It is further submitted that the look out circular cannot be utilized by the respondent to curtail the movement of the petitioner. It is also pointed out that the petitioner had submitted three representations to the Central Bureau of Investigation to withdraw the look out circular. However, the aforesaid representation has failed to evoke any response. In support of his submissions, 6 reliance has been placed two judgments 'VIKRAM SHARMA & ORS. VS. UNION OF INDIA & ORS, 2010 SCC ONLINE DEL 2475' AND 'SUMER SINGH SALKAN VS. ASSTT. DIRECTOR & ORS., W.P. (CRL) No. 1315/2008 (DELHI HIGH COURT)'.
4. On the other hand, learned counsel for the respondent submitted that on 11.07.2017, look out circular was issued against the petitioner, which was valid upto 10.07.2018. However, the aforesaid circular was renewed on 10.07.2018 for a further period of one year that is upto 09.07.2019. It is further submitted that the application for anticipatory bail filed by the petitioner has already been rejected by Trial Court. Learned counsel for the respondent has also invited the attention of this Court to Office memorandum dated 27.10.2010 pertaining to issuance of look out circular in respect of Indian citizens and foreigners and has pointed out that the petitioner can approach the Trial Court seeking the relief as claimed in the petition. It is 7 also submitted that the Investigating Agency would conclude the investigation within a period of eight weeks from today. In support of his submission, learned counsel for Central Bureau of Investigation has relied on Division Bench decision of Allahabad High Court in Crl.Rev.No.3333/2018 in the case of 'GSC RAO VS. STATE OF UP AND OTHERS', DECIDED ON 26.09.2018.
5. I have considered the submissions made by learned counsel on both the sides and have perused the record. The look out circular has been interpreted by the Central Government as a communication received from an authorized Government agency with reference to a person who is wanted by that agency for fulfillment of a legal requirement, to secure arrest of a person evading arrest, to nab a proclaimed offender so as to facilitate the Court proceeding by securing his presence in trial. The look out circular has no specific legal definition. However, statutory sanction for issuance of 8 look out circular can be traced to Section 10A and 10B of the Passports Act, 1967. The aforesaid stand has been taken by the Central Government in its response filed in W.P. (Crl.) No.1315/2008 in the High Court of Delhi. The object of issuance of a look out circular is to ensure that a person is available for interrogation or trial or enquiry.
6. The Government of India has issued an office memorandum dated 27.10.2010. Paragraph 7 of the aforesaid memorandum reads as under:
"7. The High Court has answered these questions in its judgment dated 11.08.2010 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 9 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 and 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 and 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."
7. From close scrutiny of the relevant extract of the office memorandum, it is evident that look out 10 circular can be withdrawn by the authority which has issued the same and can also be rescinded by the Trial Court where the case is pending or the Court having jurisdiction over the concerned police station on an application being made to it. In the instant case, the charge sheet against the petitioner has not been filed. However, an investigation is pending against him. The petitioner has admittedly approached the Central Bureau of Investigation by submitting the representations asking it to withdraw the look out circular. It is also not in dispute that the petitioner has cooperated with the investigating agency and has appeared before it as and when required by it. Therefore, the competent authority is directed to pass suitable orders on the representations submitted by the petitioners within a period of six weeks from the date of receipt of certified copy of the order passed today. Needless to state that in case the petitioner is aggrieved, he shall be at liberty to approach the Court having jurisdiction over the concerned police station. In 11 addition, the respondents are directed to make an endeavour to conclude the investigation pending against the petitioner within a period of eight weeks from today.
With the aforesaid directions, the petition is disposed of.
Sd/-
JUDGE SS