w w w . L a w y e r S e r v i c e s . i n



C. Sivasankaran v/s Foreigner Regional Registration Officer (FRRO), Bureau of Immigration, Ministry of Home Affairs, Chennai & Others


Company & Directors' Information:- AT HOME INDIA PRIVATE LIMITED [Active] CIN = U17211DL2001PTC112255

Company & Directors' Information:- V HOME PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109331

Company & Directors' Information:- G. P. HOME PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102MH2011PTC213056

    W.A. No. SR 49793 of 2020

    Decided On, 29 September 2020

    At, High Court of Judicature at Madras

    By, THE HONOURABLE CHIEF JUSTICE MR. A.P. SAHI & THE HONOURABLE MR. JUSTICE SENTHILKUMAR RAMAMOORTHY

    For the Appellant: Sathish Parasaran, Senior Counsel, S. Vijayan, Advocate. For the Respondents: ------------



Judgment Text

(Prayer: Appeal filed under Clause 15 of the Letters Patent against the order dated 6.11.2019 made in W.P.No.19743 of 2019.)A.P. Sahi, CJ.1. The appeal arises out of the impugned judgment dated 6.11.2019, whereby a writ petition filed by the appellant seeking a declaration against a Look Out Circular issued by the Ministry of Home Affairs, Bureau of Immigration, as invalid and without jurisdiction, has been dismissed. The question is, can the writ petition giving rise to this appeal and the jurisdiction exercised by the learned Single Judge be said to be an exercise of the criminal jurisdiction of this Court under Article 226 of the Constitution of India so as to bar the maintainability of an intra-court appeal under Clause 15 of the Madras High Court Letters Patent?2. The appellant is not an Indian citizen and is a Seychelles national. He is a holder of a diplomatic passport issued by the Republic of Seychelles. When he entered India on 6.8.2018, he was informed about the Look Out Circular, against which he sent a representation, and the said Look Out Circular was withdrawn. However, in the criminal cases that were initiated against him, he was called upon to appear on certain dates before the Enquiry Officer. The cases registered against him were by the Enforcement Directorate under the Prevention of Money Laundering Act (PMLA).3. The second time he was informed of a Look Out Circular having been issued against him, against which the appellant made a representation, but this time the Look Out Circular was not withdrawn and, therefore, he preferred the writ petition giving rise to this appeal.4. The learned Single Judge recorded that the appellant is one of the Promoters-Directors of Siva Group of Companies and his son, S.Saravanan, had obtained a loan of Rs.322.40 Crores from IDBI Bank, which was declared to be a Non Performing Asset (NPA). S.Saravanan was in the capacity of a Director in M/s.Win Wind Oy (WWO), Finland. There were other allegations that have been detailed in the order of the learned Single Judge, and when the prosecution proceeded against the appellant, the CBI registered a case and in paragraph (10) of the impugned judgment, the following is recorded:“10. On the aforesaid allegation, the C.B.I., Bangalore, registered a case in Cr. No. RC-09 (E)/2018 against Axcel Sunshine Ltd. and 38 other accused, including public servants and the petitioner under Section 120-B read with Sections 409 and 420 IPC and Section 13(2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988, based on the direction issued by the Central Vigilance Commission, New Delhi, vide Office Memorandum dated 27.10.2010 for causing wrongful loss of more than Rs.600 crores to IDBI Bank and corresponding wrongful gain to themselves.”5. A third case was also lodged against the appellant in Mumbai.6. In this background, the writ petition that was placed before the learned Judge having roster of Criminal Jurisdiction on writs, was pressed into service on the ground that the appellant is immune from prosecution, as he holds a diplomatic passport, in the light of the Vienna Convention. The Look Out Circular is not in accordance with the Office Memorandum dated 27.10.2010 issued by the Government of India. A copy of the Memorandum is available on record.7. The learned Single Judge noticed the said guidelines, as also the amendments issued vide the Office Memorandum on 5.12.2017, and came to the conclusion that the Office Memorandum, as amended, enables the issuance of a Look Out Circular, if the same is necessary in larger public interest. Thus, the learned Single Judge, after having considered the judgments on the subject that have been detailed in the impugned judgment, came to the conclusion that it will not be appropriate to judicially review such action and consequently permit the appellant to leave India in the background of the case. The writ petition was accordingly dismissed by the impugned judgment.8. When the matter came up before us, the objection taken with regard to the maintainability of a Letters Patent Appeal came to the fore. We had, accordingly, called upon the learned counsel for the appellant to assist the Court keeping in view the various judgments of the Apex Court as well as the judgments of this Court, in order to consider the question of maintainability of the appeal.9. Mr.Parasaran has urged that the action for issuance of a Look Out Circular amounts to curtailing the liberty and freedom of movement of the appellant and the same cannot be pressed against the appellant, as it violates the diplomatic privileges conferred upon the appellant.10. The question, therefore, is of the nature of the proceedings, namely the writ petition giving rise to this appeal, are whether in the nature of criminal proceedings and the jurisdiction exercised by the learned Single Judge is a criminal jurisdiction or not.11. The Look Out Circular being governed by the Office Memorandum issued by the Ministry of Home Affairs, it is appropriate to extract the said circular dated 27.10.2010 as below:“No.25076/31/2010.Imm.Government of IndiaMinistry of Home Affairs(Foreigners Division)Jaisalmer House, 26 Mansingh RoadNew Delhi, the 27 October, 2010OFFICE MEMORANDUMSubject: Issuance of Look Out Circulars (LOC) in respect of Indian citizens and foreigners Under the existing practice, the issuance of LOCs is governed by this Ministry’s letter number 25022/13/78-FI dated 5.9.1979 and OM number 25022/20/98-F.IV dated 27.12.2000.2. It has, inter alia, been stated in the letter dated 5.9.1979 of MHA that ‘apart from the Govern India in the Ministry of Home Affairs, circulars are issued by various authorities for keeping a watch on arrival/departure of Indians and foreigners. These authorities include the Ministry of External Affairs, the Customs and Income Tax Departments, Directorate of Revenue Intelligence, Central Bureau of Investigation, Interpol, Regional Passport Officers, Police authorities in various States, etc.’ It has further been stated that ‘unless otherwise specified in the warning circular itself, the circulars issued by any of the various authorities specified above will be regarded as invalid if it is more than one year old and the card will be weeded out. For the future, it is considered that whenever any authority issues a warning circular to the immigration authorities, the period of validity should be clearly specified in the circular. If this is not done, the circular will be considered to be valid only for a period of one year from the date of issue and a watch will be maintained by the person concerned at the immigration check posts only for that period.’3. The OM dated 27.12.2000 of MHA specifies the steps required to be taken for opening an LOC in respect of an Indian citizen. It has been mentioned in the said OM that the request for opening a LOC in respect of an Indian citizen is required to be made to all the Immigration Check Posts (ICP) in the country in a prescribed proforma. It has further been stated that ‘the request for opening of LOC must invariably be issued with the approval of an Officer not below the rank of Deputy Secretary to the Government of India/Joint Secretary in the State Government/ concerned Superintendent of Police at district level.’ Further, ‘Care must be taken by the originating agency to ensure that complete identifying particulars of the person, in respect of whom the LOC is to be opened, are indicated in the Proforma..’ It is further provided that ‘an LOC is valid for a period of one year. It can however, be extended further before the expiry of the one year period. In case no request for extension of LOC is received before expiry of one year period, an LOC will automatically be closed by the Immigration Officer concerned after expiry of one year period.’4. The Hon’ble High Court of Delhi, in Writ Petition (Civil) No. 10180 of 2009 (Shri Vikram Sharma vs. Union of India and Ors.), considered the question whether a request for the issuance of an LOC could be made by the National Commission for Women (NCW). While disposing of the said Writ Petition, the High Court, in its order dated 26.7.2010, observed that ‘a request for the issuance of an LOC could not have emanated from the NCW. It had to come from either the Central or the State Government and that too only in the prescribed form and then again only by the officers of a certain rank. In this context, while criminal courts dealing with cases of criminal law enforcement can issue directions, which may result in the issuance of an LOC, there is no such power vested either under the Cr.P.C. or the Passports Act or under the MHA’s circular, in statutory bodies like NCW. Being granted the powers of civil court for a limited purpose does not vest the NCW with the powers of a criminal court and it has no authority as of today to make a request for the issuance of an LOC..’5. The Court further observed, “there are a large number of statutory commissions at the level of the Centre and the States which perform judicial functions and are vested with, for the purpose of conducting inquiries upon receiving complaints, the powers of a civil court. These include the National Human Rights Commission (NHRC), the NCW, the National Commission for Protection of Children’s Rights. These statutory bodies, however, have not been vested with the powers of a criminal court and do not have powers to enforce criminal law. It is for the Government of India to take a policy decision on whether it wants to vest such statutory tribunals/ commissions with criminal law enforcement powers. Since as of today, they have no such power, it is imperative that the WHO should issue further clarificatory circulars or office memoranda clearly stating that the request for issuance of LOCs cannot ‘emanate’ from statutory bodies like the NCW. If at all, such bodies should bring the necessary facts to the notice of law enforcement agencies like the police, which will then make the request for issuance of an LOC upon an assessment of the situation, and strictly in terms of the procedure outlined for the purpose. This clarification will be issued by the MHA, in consultation with other concerned agencies, including representatives of the statutory bodies referred to, within a period of 12 weeks from today...”6. In a related judgment delivered on 11.8.2010 by the Hon’ble High Court of Delhi in W.P (Crl.) No. 1315/2008-Sumer Singh Salkan Vs Asstt. Director & Ors and Crl. Ref.1/2006-Court on its Own Motion Re: State Vs. Gurnek Singh etc., the Court has answered four questions raised by a lower court on the LOC. These questions are as below:a) What are the categories of cases in which the investigating agency can seek recourse of Look-out-Circular and under what circumstances?b) What procedure is required to be followed by the investigating agency before opening a Look-out-Circular?c) What is the remedy available to the person against whom such Look-out-Circular has been opened?d) What is the role of the concerned Court when such a case is brought before it and under what circumstances the subordinate courts can intervene?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/arrested.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 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.8. In accordance with the order dated 26.7.2010 of the High Court of Delhi, the matter has been discussed with the concerned agencies and the following guidelines are hereby laid down regarding issuance of LOCs in respect of Indian citizens and foreigners:a) The request for opening an LOC would be made by the originating agency to Deputy Director, Bureau of Immigration (BoI), East Block VIII. R.K. Puram, New Delhi - 66 (Telefax: 011-2619244) in the Proforma enclosed.b) The request for opening of LOC must invariably be issued with the approval of an officer not below the rank ofi. Deputy Secretary to the Government of India; orii. Joint Secretary in the State Government; oriii. District Magistrate of the District concerned oriv. Superintendent of Police (SP) of the District concerned; orv. SP in CBI or an officer of equivalent level working in CBI; orvi. Zonal Director in Narcotics Control Bureau (NCB) or an officer of equivalent level (including Assistant Director (Ops) in Headquarters of NCB); orvii. Deputy Commissioner or an officer of equivalent level in the Directorate of Revenue Intelligence or Central Board of Direct Taxes or Central Board of Excise and Customs; orviii. Assistant Director of IB/BoI; orix. Deputy secretary of R&AW; orx. An officer not below the level of Superintendent of Police in National Investigation Agency; orxi. Assistant Director of Enforcement Directorate; orxii. Protector of Emigrants in the office of the Protectorate of Emigrants or an officer not below the rank of Deputy Secretary of the Government of India; orxiii. Designated officer of Interpol.Further, LOCs can also be issued as per directions of any Criminal Court in India.c) The name and designation of the officer signing the Proforma for requesting issuance of an LOC must invariably be mentioned without which the request for issuance of LOC would not be entertained.d) The contact details of the originator must be provided in column VI of the enclosed Proforma. The contact telephone/mobile number of the respective control room should also be mentioned to ensure proper communication for effective follow up action.e) Care must be taken by the originating agency to ensure that complete identifying particulars of the person, in respect of whom the LOC is to be opened, are indicated in the Proforma mentioned above. It should be noted that an LOC cannot be opened unless a minimum of three identifying parameters, as given in the enclosed Proforma, apart from sex and nationality, are available. However, LOC can also be issued if name and passport particulars of the person concerned are available. It is the responsibility of the originator to constantly review the LOC requests and proactively provide additional parameters to minimise harassment to genuine passengers.f) The legal liability of the action taken by the immigration authorities in pursuance of the LOC rests with the originating agency.g) Recourse to LOC is to be taken in cognizable offences under IPC or other penal laws. The details in column IV in the enclosed Proforma regarding ‘reason for opening LOC’ must invariably be provided without which the subject of an LOC will not be arrested/detained.h) In cases where there is no cognizable offence under IPC or other penal laws, the LOC subject cannot be detained/arrested or prevented from leaving the country. The originating agency can only request that they be informed about the arrival departure of the subject in suchi) The LOC will be valid for a period of one year from the date of issue and name of the subject shall be automatically removed from the LOC thereafter unless the concemed agency requests for its renewal within a period of one year. With effect from 1.1.2011, all LOCs with more than one year validity shall be deemed to have lapsed unless the agencies concerned specifically request BoI for continuation of the names in the LOC. However, this provision for automatic deletion after one year shall not be applicable in following cases:a. Ban-entry LOCs issued for watching arrival of wanted persons (which have a specified duration);b. loss of passport LOCs (which ordinarily continue till the validity of the document);c. LOCs regarding impounding of passports;d. LOCs issued at behest of Courts and Interpol.j) In exceptional cases, LOCs can be issued without complete parameters and/or case details against CI suspects, terrorists, anti national elements, etc in larger national interest.k) The following procedure will be adopted in case statutory bodies like the NCW, the NHRC and the National Commission for Protection of Children’s Rights request for preventing any Indian foreigner from leaving India. Such requests along with full necessary facts are first to be brought to the notice of law enforcement agencies like the police. The S.P. concerned will then make the request for issuance of an LOC upon an assessment of the situation, and strictly in terms of the procedure outlined for the purpose. The immigration/emigration Authorities will strictly go by the communication received from the officers authorized to open LoCs as detailed in the para 8 (b) above.9. It is requested that the contents of this OM may be brought to the notice of all concerned for strict compliance.”12. It is evident from the facts of this case that there are criminal cases pending against the appellant, including one registered by the Central Bureau of Investigation, and the appellant C.Sivasankaran is named as accused at Serial No.13 in FIR No.9 of 2018, dated 13.4.2018 of Bengaluru.13. It is in this background that the Look Out Circular appears to have been issued, and as per the amendment referred to by the learned Single Judge, such a circular can be issued in larger public interest. The genesis of the Look Out Circular, therefore, is the pendency of criminal cases against the appellant and it is in this context that the Look Out Circular came to be challenged by the appellant. The writ petition, therefore, was clearly intended to seek an order to enable the appellant to move out of the country by getting the bar of Look Out Circular lifted, the obvious consequence and likelihood whereof is avoiding of criminal proceedings that have been initiated under the Code of Criminal Procedure.14. Having examined the judgments that had been perused by us earlier, the following observations from paragraphs (51) to (55) of the judgment of the Apex Court in the case of Ram Kishan Fauji v. State of Haryana and others, (2017) 5 SCC 533, are relevant for the present controversy:“51. ..... Being of this view, the Division Bench ruled that as Clause 15 of the Letters Patent expressly bars an appeal against the order passed by a Single Judge of the High Court in exercise of criminal jurisdiction, LPAs are not maintainable and, accordingly, dismissed the same.52. From the aforesaid analysis, it is demonstrable that the Gujarat High Court has opined that relying on the authority of this Court in CIT v. Ishwarlal Bhagwandas, (1966) 1 SCR 190 : AIR 1965 SC 1818, the issue whether the proceedings are civil or not would depend upon the nature of the right violated and the appropriate relief which might be claimed and not upon the nature of the tribunal which has been invested to grant relief. The Division Bench further opined that even if cognizance is not taken in respect of a criminal case, it would not take out the case from the purview of criminal jurisdiction. Thus, it has been held by the Division Bench that when there is a proceeding under Article 226 of the Constitution arising from an order made by a Court in exercise of power under the Code of Criminal Procedure, it would be a criminal proceeding within the meaning of Letters Patent.53. The Full Bench of the High Court of Delhi in C.S. Agarwal v. State, 2011 SCC OnLine Del 3136 : (2011) 125 DRJ 241 was dealing with a situation wherein a writ petition was filed before the High Court under Article 226 of the Constitution of India read with Section 482 CrPC seeking for appropriate writ for quashing of the FIR. As the writ petition was dismissed by the learned Single Judge, an intra-court appeal was preferred. A preliminary objection was taken by the respondents as regards the maintainability of the LPA contending that the judgment of the learned Single Judge was passed in exercise of criminal jurisdiction and the letters patent appeal against such an order is barred by Clause 10 and Clause 18 of the Letters Patent constituting the High Court of Judicature at Lahore, which is applicable to the Judicature of High Court of Delhi. The Full Bench analysed Clause 10 of the Letters Patent and took note of what has been prohibited for entertaining any intra-court appeal. The Full Bench, analysing various decisions, opined thus: (SCC OnLine Del para 19)“19.… proceedings under Article 226 of the Constitution would be treated as original civil proceedings only when it concerns civil rights. A fortiori, if it concerns a criminal matter, then such proceedings would be original criminal proceedings. Letters Patent would lie when the Single Judge decides the writ petition in proceedings concerning civil rights. On the other hand, if these proceedings are concerned with rights in criminal law domain, then it can be said that the Single Judge was exercising his “criminal jurisdiction” while dealing with such a petition filed under Article 226 of the Constitution.”54. After so stating, the Full Bench referred to the Constitution Bench decision in CIT v. Ishwarlal Bhagwandas, (1966) 1 SCR 190 : AIR 1965 SC 1818 and distinguished the Full Bench decision of the Andhra High Court in Gangaram Kandaram v. Sunder Chikha Amin, 2000 SCC OnLine AP 119 : (2000) 2 An LT 448 and noted the decision of the Division Bench of the Gujarat High Court in Sanjeev Rajendrabhai Bhatt v. State of Gujarat, (2000) 1 Guj LR 206 and came to hold as follows:“32. The test, thus, is whether criminal proceedings are pending or not and the petition under Article 226 of the Constitution is preferred concerning those criminal proceedings which could result in conviction and order of sentence.33. When viewed from this angle, it is clear that if the FIR is not quashed, it may lead to filing of challan by the investigating agency, framing of charge and can result in conviction of order of sentence. Writ of this nature filed under Article 226 of the Constitution seeking quashing of such an FIR would therefore be “criminal proceedings” and while dealing with such proceedings, the High Court exercises its “criminal jurisdiction”.55. Being of this view, the Full Bench in C.S. Agarwal v. State, 2011 SCC OnLine Del 3136 : (2011) 125 DRJ 241 opined that the letters patent appeal was not maintainable. In this regard, the learned counsel for the appellant has also drawn our attention to the Division Bench judgment of the Delhi High Court in Vipul Gupta v. State, 2014 SCC OnLine Del 434 : (2014) 208 DLT 468 wherein the Division Bench, placing reliance on the Full Bench decision [C.S. Agarwal v. State, 2011 SCC OnLine Del 3136 : (2011) 125 DRJ 241], has expressed the view that though the writ petitions were not filed for quashing of the FIR as in the case of the Full Bench decision, yet the learned Single Judge was exercising criminal jurisdiction, for the Lieutenant Governor of Delhi had agreed with the proposal not to press the application for withdrawal of the criminal case under Section 321 CrPC and allowed the trial court to proceed on merits. In this factual backdrop, the Division Bench opined:“14. …Even though the challenge in the writ petitions was to a decision of Hon’ble the Lieutenant Governor but the said decision was relating to the prosecution already underway of the appellants and the direct effect of the dismissal of the writ petitions is of continuation of the prosecution which may result in imposition of sentences such as death, imprisonment, fine or forfeiture of property, of the appellants. We are thus of the view that this Court while dealing with the writ petitions was exercising its criminal jurisdiction. It cannot be also lost sight of that the writ petitions were intended to avoid the consequences of criminal proceedings initiated under the Code of Criminal Procedure and concerned with rights in criminal law domain. We have thus no doubt that the learned Single Judge, in dealing with the writ petitions was exercising “criminal jurisdiction” and these letters patent appeals are not maintainable.”15. Mr.Parasaran urged that apart from what has been indicated in the case of Ram Kishan Fauji (supra), there has to be some more additional material that may bring within its fold the action of issuing a Look Out Circular to be in the nature of a criminal proceeding, and the same being absent and not being available, a Letters Patent Appeal would be maintainable against the judgmen

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t of the learned Single Judge, as this is a pure question of the civil liberty of a person.16. We have carefully perused the judgment and we find that the Apex Court came to the conclusion that the judgments of the Gujarat and Delhi High Court have correctly laid down the law on the subject. Taking a clue from the said observations, we find that the Look Out Circular that came to be the subject matter of challenge before the learned Singe Judge did arise out of the various criminal proceedings that were pending against the appellant. The prayer, therefore, in the writ petition was clearly for a declaration that the Look Out Circular in the purported exercise of powers under Section 10B of the Passport Act, 1967 is arbitrary and an abuse of authority, vitiated by mala fides, and hence, should be declared to be without jurisdiction. The sequence of facts, and the consequence towards which the writ petition is aimed at, clearly relate to criminal proceedings that have led to the issuance of the circular. This may involve the guarantee of liberty to a person under Article 21 of the Constitution, but the genesis of the action is connected with the criminal prosecutions pending against the appellant, the umbilical cord whereof has not yet snapped. The contention that it only involves civil rights of the appellant is, therefore, not correct because the relief revolves around consequences arising or likely to arise as a result of criminal prosecution.17. In our opinion, the issuance of a Look Out Circular is an exercise of authority under the Office Memorandum dated 27.10.2010 and such a circular can be issued in larger public interest, as already held by the learned Single Judge after taking into account the amendment in the said memorandum. The appellant’s claim of immunity under the foreign passport, therefore, may not arise. His movement inside this country being put under surveillance for the purpose of his participation in the criminal prosecutions pending against him appears to be justified and, hence, the Look Out Circular is a consequence of the aforesaid antecedents of the involvement of the appellant in criminal cases. This being the position, the writ petition was instituted and was rightly placed before the learned Single Judge who was having the roster of dealing with writ petitions arising out of criminal matters. The letter and intent, as well as the crux of the background in which the writ petition was filed clearly relates to the criminal proceedings pending against the appellant and, therefore, the nature of the jurisdiction exercised by the learned Single Judge would be a writ in the criminal jurisdiction, hence a Letters Patent Appeal under Clause 15 of the Letters Patent of Madras High Court would not be maintainable.The appeal is, accordingly, rejected as being not maintainable.
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