Calcutta High Court
Mritunjay Singh vs The Union Of India & Ors on 21 February, 2020
Equivalent citations: AIRONLINE 2020 CAL 103
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
OD-9
WP 105 of 2020
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
MRITUNJAY SINGH
Versus
THE UNION OF INDIA & ORS.
BEFORE:
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
Date : 21st February, 2020.
Appearance:
Mr. Ranajit Chatterjee, Adv.
Mr. Dipak R. Mukherjee, Adv.
Mr. Nilratan Banerjee, Adv.
Mr. Prasenjit Dey, Adv.
...for the petitioner.
Mr. Avinash Kankani, Adv.
...for the UOI
Mr. Soumya Roy, Adv.
Mr. S. Mahato, Adv.
...for the respondent no. 3.
The Court : The grievance of the writ petitioner is that despite the writ petitioner being a sailor in merchant vessel and having a contract for 4 (+/-1) months from February 12, 2020 to board a merchant vessel, which contract is annexed at page 29 of the instant writ petition. The petitioner was prevented by the immigration authorities when he sought to leave India on the ground of a 2 Look Out Circular (LOC) having been issued against the petitioner. Although the petitioner has no direct knowledge about the LOC, the petitioner has learnt that the same was issued on the request of the respondent no. 3 Bank.
Learned Counsel for the petitioner submits that there was a criminal case registered by the CBI against the petitioner, as a director of a company against which there were certain allegations of default of a loan given by the respondent no. 3 Bank. The investigation of the CBI in such matter ended in a charge sheet being filed, wherein the present petitioner was discharged on the finding that the present petitioner was not liable for the said default. Upon the said order being passed on the basis of the acceptance of the charge sheet, the CBI challenged the same in revision; however, the revision was itself rejected, thereby affirming the order of discharge of the petitioner.
That apart, it is submitted, a case under the Prevention of Money Laundering Act was initiated, in connection with which the adjudicating authority passed an order of attachment of an account of the petitioner to the extent of Rs. 50 lakh. The petitioner having challenged such order before the Division Bench of this Court, the Division Bench disposed of the appeal by granting the petitioner the liberty to open a separate salary account for the purpose of getting his livelihood.
In such circumstances, it is submitted that the personal liberty of the petitioner, which is granted by the fundamental rights under the Constitution of India, and his right to carry on any profession of his choice, as enshrined in the 3 Constitution of India, cannot be curtailed by preventing the petitioner from leaving the country.
It is further submitted that the petitioner is not seeking to leave the country for pleasure but for his livelihood, as is apparent from the contract of employment as annexed at page 29 of the writ petition. Learned Counsel for the petitioner further argues that the petitioner has travelled abroad several times during the pendency of the criminal case itself and has come back to contest the case, which ex facie is sufficient to show the bona fides of the petitioner in that regard.
Learned Counsel for the petitioner sites certain unreported judgments of different High Courts in support of his contention, being as follows :
1. Bank of Baroda vs. Nimish Kalyabhai Vasa,
2. Dr. Shrikant Bhasi vs. Bureau of Immigration & ors.,
3. Priya Parameswaran Pillai vs. Union of India and Ors.,
4. SMT. Maneka Gandhi vs. Union of India, reported in AIR 1978 (S.C) 597 Learned Counsel for the respondent no. 3 Bank submits that financial defaults are included within the purview of issuance of Look Out Circulars after the latest amendments to the concerned Guidelines. As such, preventing the petitioner from leaving the country was wholly within the periphery of legal process as sanctioned by the LOC itself.
Learned Counsel for the petitioner Banks submits that the dues from the petitioner are much more than the worth of the account attached and, as such, it 4 is submitted that permitting the petitioner to leave the country would put the Bank at risk inasmuch as, there would not any assurance that the petitioner would return later to India to face trial.
Learned Counsel appearing for the respondent no. 1 and 2 submits that the said respondents acted on the request of the Bank in issuance of the LOC and, pursuant to the LOC, the petitioner was prevented from travelling abroad. In his usual fairness, learned Counsel for the respondents no. 1 and 2 takes a neutral stand so far as the LOC as well as the veracity of the request giving rise to such Circular being concerned.
A bare perusal of the contract of employment of the petitioner, annexed as annexure P2 at page 29, shows that the outer limit within which the petitioner has to returned in India is 5 months from the commencement of the date of his voyage. As such, in the present case there is little or no scope for the petitioner to remain out of India after the said period.
That apart, in the present case, the travels sought by the petitioner are not even for luxury but to maintain his livelihood, since he is a sailor by occupation and in the event he does not honour the contract of employment, he may also face financial consequences for that and lose his regular income.
It is further seen from the above-referred order of the Division Bench of this Court that the petitioner was permitted to open a separate salary account which would be beyond the pale of the order of attachment. The said direction would be rendered meaningless in the event the petitioner is not allowed to earn such salary by travelling abroad.
5
That apart, in view of the CBI itself having discharged the petitioner from the criminal case initiated against the petitioner along with others, and such order being affirmed in revision, there is no pending allegation of "offence" under the Indian Penal Code or any penal statue, as contemplated in the Guidelines regarding issuance of Look Out Circulars, which can prevent the petitioner from travelling abroad.
The financial default which has been alleged by the Bank, ipso facto, is not a good ground for issuance of look out notice or at least preventing the petitioner from leaving the country. Since the Bank has already taken steps as per the appropriate law governing such loans and defaults relating thereto and already an existing attachment order is there, such order operates as sufficient security for the Bank for the time being. Moreover, although by virtue of the current amendments to the Guidelines, offences which affect adversely THE economic interest of the country as a whole would be the closest charge which could be attracted in the present case for restraining the petitioner from his travels. However, such logic is inappropriate since there is remedy for recovery of such amount, which has been exhausted by the Bank and culminated in order of attachment.
If such logic is extended to its logical conclusion, even the default of a single rupee would be sufficient to restrict the personal liberty of a citizen to leave the country, because the loss of a single rupee also affects the economy of the country and no cut-off line on financial loans can be drawn for the purpose of constituting an economic offence which jeopardizes the interest of the country. 6
To affect the economy interest of the country as a whole as envisaged under the guidelines, the said offence should be of a much greater magnitude, which shakes the economic stability of the country or the finance market of the country or is of such a nature that the banking system of the country is under threat in the event the petitioner leaves the country. In the present case, however, no such high ground has been made out by the Bank for the respondent nos. 1 and 2 to prevent the petitioner from travelling abroad.
Despite the apprehension of the bank that the petitioner would not return to India, the same could be alleviated by directing the petitioner to file an undertaking during the course of the day stating that the petitioner would return to India on or before the expiry 5 months from his commencement of travelling. Such affidavit should also disclose the contact details of the petitioner, on which he would be accessible during the period of his travels.
Accordingly, since extensive arguments were extended at this stage of deciding interim prayers, such arguments had to be dealt with and this elaborate order had to be passed. However, the writ petition cannot be disposed of at this juncture in view of the respondents praying for opportunity to file their affidavit in opposition. Yet, subject to filing of the undertaking, the petitioner's right to travel abroad has to be opened up.
Accordingly, the respondents are directed to file their affidavit in opposition within four weeks from date. Affidavit in reply, if any, shall be filed by the petitioner within four weeks thereafter, if necessary, by affirming such affidavit in reply and notarizing the same in some foreign country and transmitting the same 7 to India to be endorsed by the Commissioner of oaths of this court, which provision is existing within the framework of the rules framed by this Court both in respect of Original Side and Appellate Side writ matters.
However, in the meantime, the respondents are restrained from preventing the petitioner from travelling abroad with effect from tomorrow, subject to the petitioner filing an undertaking to the effect that the petitioner shall be returning on or before the expiry of 5 months from the date of commencement of his voyage to India and disclosing the contact numbers of the petitioner where the petitioner would be accessible during the period of his travel. A copy of such undertaking shall be served on the learned Advocate on record for the respondents as well. Let the writ petition being WP 105 of 2020 next appear for hearing in the Combined Monthly List of May, 2020.
Let a signed copy be given to the parties upon compliance of necessary formalities.
(SABYASACHI BHATTACHARYYA, J.) SK.