The Delhi High Court quashed the Look-Out Circular against the petitioner, holding that LOCs must only be issued where the accused evades arrest or trial, and that cooperation with investigation and pending arbitration do not justify its continuation.
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2023:DHC:2214
W.P.(C) 2512/2023 HIGH COURT OF DELHI Date of Decision: 23rd March, 2023
W.P.(C) 2512/2023 and CM APPL. 9609/2023, 12050/2023 MANAVI ANUSHA ..... Petitioner Through: Ms. Shivani Kher, Mr. Rakesh Kumar Lakra & Ms. Prachi Darji, Advocates (M-9811434300).
VERSUS
UNION OF INDIA & ANR. ..... Respondents Through: Mr. Mohit Mathur, Senior Advocate with Mr. Sunit Misra & Mr. Hemant Chauhan, Advocates for Intervenor (M- 9999036345) Mr. Rakesh Kumar, CGSC with Mr. Sunil, Advocate (M-9811549455). Mr. Avishkar Singhvi, Mr. Vivek Kumar & Mr. Naved Ahmed, Advocates for R-2. Mr. Ankit Verma (GP) (M- 9999197883)
CORAM:
JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral)
W.P.(C) 2512/2023 and CM APPL. 12050/2023 (impleadment); CM
APPL. 9609/2023 (stay)
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The Petitioner-Ms. Manavi Anusha has filed the present petition seeking quashing of the Look-Out Circular (“LOC”) issued against her. The petition has been filed against the Respondent No. 1-Bureau of Immigration and the Respondent No.2-GNCTD. One Mr. Vineet Singh Chauhan has filed an application being CM APPL. 12050/2023 for impleadment in the matter. He is accordingly impleaded as Respondent No.3.
3. The Respondent No.3 had filed a complaint against the Petitioner under Section 420/406/120B of Indian Penal Code, 1860 (“IPC”) which was registered as a First Information Report (“FIR”), bearing FIR NO. 00034/2021 dated 12th February 2021, registered by PS Economic Offences Wing (“EOW”), New Delhi. In the said FIR, Genestore India Pvt. Ltd., Anubhav Anusha - the brother of the Petitioner, Ms. Manavi Anusha- the Petitioner and certain other persons were arrayed as accused. The FIR was registered on 12th February, 2021 and an LOC was issued by Respondent No. 1 - Bureau of Immigration at the instance of Respondent No. 2- GNCTD/Delhi Police on 25th March, 2021. It is this LOC which is under challenge in the present petition.
4. The disputes between the Petitioner, her brother and Respondent No.3 appear to have arisen out of a Tripartite Agreements dated 8th May, 2020 and 9th May, 2020 and a separate Addendum dated 11th July, 2020 in respect of COVID-19 diagnostic kits. The admitted position as of today, is that a Sole Arbitrator has been appointed by this Court on 25th January, 2021 in Arb P. No. 769/2020 titled Vineet Singh Chauhan & Anr. v. M/s Genestore India Pvt. Ltd. Through Its Managing Director & Ors, to adjudicate the said disputes.
5. Ld. counsel for the Petitioner - Ms. Shivani Kher submits that the Respondent No.3 is already secured by the Sole Arbitrator in the arbitral proceedings vide order dated 20th February, 2023 and the issuance of LOC is nothing but a measure to harass the Petitioner.
6. On behalf of the Respondent No.3, it is submitted by Mr. Mathur, ld. Senior Counsel that the LOC was not sought for by the Respondent No.3. It has been issued at the instance of Respondent No. 2- GNCTD/EOW on its own accord. It is further submitted on behalf of Respondent No. 3, that though the disputes are pending in arbitration, there are serious allegations which have been raised against the Petitioner and her brother including that of cheating and forgery.
7. Ms. Kher, ld. Counsel for the Petitioner points out that the LOC qua the brother-Mr. Anubhav Anusha has already been set aside by the Principal District & Sessions Judge, Patiala House Courts, New Delhi in Crl. Rev. 297/2022 in the case titled ‘Mr. Anubhav Anusha v. GNCTD’ vide order dated 5th September, 2022. The same is now subject matter of the appeal. She submits that since the dispute is commercial in nature, there is no basis for issuance of LOC.
8. On behalf of the Respondent No. 2- GNCTD/Delhi Police, certain documents have been placed on record to show the manner in which the LOC was issued. It is submitted that the Petitioner was investigated and the statement of the Petitioner was also recorded, and hence owing to the alleged offences in the FIR, it was deemed appropriate to issue the LOC. It is not in dispute between the parties of the present petition, that now the Petitioner has joined with the investigation.
9. The question that arises in this petition is whether the LOC ought to be continued. A perusal of the Office Memorandum issued by Respondent No. 1, dated 22nd February, 2021 under which LOCs are issued, shows that under paragraph 6(F) and 6(J) of the Office Memorandum, though the LOC remains in force unless a deletion request is given by the Originator itself, the LOC is required to be reviewed on a quarterly and annual basis by the Originating Agency. The said Office Memorandum also records in paragraph 4(a) that recourse to LOC is to be taken by the investigating agency, only in cognizable offences under the IPC or other penal laws where the accused was deliberately evading arrest or not appearing in the Trial Court despite non-bailable warrants being issued. The said clauses of the Office Memorandum are set out below:
“6. The existing guidelines with regard to issuance of
Look Out Circulars (LOC) in respect of Indian
citizens and foreigners have been reviewed by this
Ministry. After due deliberations in consultation with
various stakeholders and in supersession of all the
existing guidelines issued vide this Ministry's letters/
14,286 characters total
O.M. referred to in para 1 above, it has been decided
with the approval of the competent authority that the
following consolidated guidelines shall be followed
henceforth by all concerned for the purpose of
issuance of Look Out Circulars (LOC) in respect of
Indian citizens and foreigners:-
…..
(F) 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 viz. name & parentage, passport number or Date of Birth 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 minimize harassment to genuine passengers. Details of Government identity cards like PAN Card, Driving License, Aadhaar Card, Voter Card etc. may also be included in the request for opening LOC.
(J) The LOC opened shall remain in force until and unless a deletion request is received by Bol from the
Originator itself. No LOC shall be deleted automatically. Originating Agency must keep reviewing the LOCs opened at its behest on quarterly and annual basis and submit the proposals to delete the LOC if any, immediately after such a review. The BOI should contact the LOC Originators through normal channels as well as through the online portal. ln all cases where the person against whom LOC has been opened is no longer wanted by the Originating Agency or by Competent Court, the LOC deletion request must be conveyed to BoI immediately so that liberty of the individual is not jeopardized.”
10. In the present case, none of these parameters are satisfied inasmuch as both the arbitral proceedings before the Sole Arbitrator are pending and the Petitioner’s statement has also been recorded by Respondent No. 2. There is no allegation that she has not cooperated in the investigation. Moreover, in respect of the Petitioner’s brother, who is the main accused, the Principal District & Sessions Judge, Patiala House Courts, New Delhi has already set aside the LOC. The observations in the said order dated 5th September 2022 read:
“9. Thus, it was held that the investigating agency can take recourse to ‘LOC ‘where the accused has been deliberately evading arrest or not appearing despite issuance of NBWs and there is a strong likelihood of accused leaving the country to evade trial or arrest. In the present case, there is no denial to the fact that FIR No. 34/21 was registered on 12.02.2021 and the LOC was issued on 25.03.2021 and notice under Section 91 Cr.PC was issued to the revisionist/accused for the first time on 22.05.2021 (Annexure P9 at Page no. 69 of the paper book), which was replied on behalf of revisionist/accused on 07.07.2021. Now, the following reply was filed by the IO/SI Amit Dahiya, Section III, EOW, New Delhi, before the then Ld. CMM, New Delhi, which reads as under: “a. Alleged Company M/s Genestore Private Limited in connected with M/s Genestore France. b. M/s Genestore France is owned by Alleged Anubhav Anusha. c. Anubhav Anusha is Global CEO in M/s Genestore India Private Limited. d. He has no permanent address in India, he himself admitted this fact during investigation/examination. e. He is dealing in business in M/s Genestore France which is totally France based.
10. A bare perusal of the aforesaid reasons/grounds for opening the ‘LOC’ would show that it was nowhere the case of the investigating agency that the accused was running away from joining the investigation or/and that he was not cooperating during investigation. There is no denial to the fact that the revisionist/accused has appeared on several dates before the IO and even as submitted written replies along with relevant documents have been filed and there is no iota or whisper that revisionist/accused is creating any kind of bottlenecks in the on going investigation. The plea that the revisionist/accused has no permanent residence/address is belied from the fact that the affidavit of the revisionist/accused filed along with the revision petition reveals that he is permanent resident of EW2101, Ireo Grand Arch, Golf Course Extension Road, Gurugram, Haryana 122102, and there was no rebuttal to the plea by the revisionist/accused that the entire family of the revisionist/accused has a permanent place of abode in India and as such are residing in the Gurugram. The plea of the Ld. Counsel for the complainants that revisionist/accused can flee or abscond away from criminal prosecution as he has substantial roots and footing in France, is a far cry in the wilderness. In other words, there is a semblance of truth that there is an element of risk but then there are several legal measures that could be invoked in a situation like this, such as the Extradition Treaty or cancellation of passport and other well-established procedures to seek deportation from the foreign country.
11. Be that as it may, the complainants have no locus standi to dictate terms to the investigating agency. All said and done, it is manifestly appears that the DCP concerned has failed to take an objective view of the matter and has considered the issue of rescinding or cancelling of LOC in a mechanical and arbitrary manner that is clearly contrary to the law on the subject. Ld. Counsel for the revisionist/accused in canvassing his plea has rightly placed reliance on the recent decisions in Rana Ayyub v. Union of India,
2022 SCC OnLine Del 961 and Directorate of Enforcement v. Jacqueline Fernandis, Crl. MC NO. 2657/22 & Crl. MA No. 11064/22 dated 30.05.2022 passed by Hon'ble Judge, High Court of Delhi.
12. In view of the foregoing discussions, the impugned order dated 12.05.2022 is set aside, and resultantly, the impugned ‘LOC’ dated 25.03.2021, as extended for another year, is also set aside. However, as rightly submitted by the ld APP for the State, in view of the decision in the case of Rana Ayyub (Supra), a fair and just balance has to be struck qua the rights of the investigating agency to investigate the instant matter vis-à-vis the fundamental rights of the revisionist/accused to travel to a foreign country, if need be, and therefore, the revisionist/accused shall comply with the following conditions: ……”
11. Furthermore, the ld. Sole Arbitrator has also secured a substantial sum to secure the Respondent no.3, vide order dated 20th February, 2023, has also directed as under:
“24. Hence, after carefully considering the facts, record and the law, this Tribunal holds that if its Interim order dated 15.05.2021 is modified to the extent as prayed for, no hardship would be caused to either party and the claimants would continue to be secured. Therefore, I allow the respondent No. 1's application under section 17 of the A & C Act and accordingly also direct the respondent No.1 not to create any third party rights in its assets to the tune of INR 2,51,50,000/- (Rupees Two Crores Fifty One Lakhs and Fifty Thousand only) as was the direction contained in the order dated 25.01.2021 passed by the Hon'ble Delhi High Court. 25. With the above observation and directions, this application of the respondent No.1 under section 17 of the A & C Act is disposed of. The observations made in this order are prima face and are without prejudice to the rights, title and contentions of the rival parties and without prejudice to the claims/counter-claims, which shall be finally adjudicated by this Tribunal at the appropriate stage as per law.”
12. Mr. Mathur, ld. Senior Counsel for the Respondent No. 3 submits that a further application under Section 17 of the Arbitration and Conciliation Act, 1996 has also been filed seeking further security in the matter owing to the amount of claims of Respondent No.3.
13. In this background, owing to the fact that the initial request of the Respondent No. 2-Delhi Police for issuance of an LOC for a period of one year has also expired and Respondent No.3 also does not insist on the LOC being continued, the facts of the present case do not warrant continuation of the LOC qua the Petitioner. It is thus directed that the LOC shall no longer be operational against the Petitioner and is quashed.
14. Insofar as any further security for the Respondent No.3 is concerned, status quo in respect of title and possession of the property situated at D-34, Third Floor, Anand Niketan, New Delhi-110021 (“said property”) shall be maintained by the Petitioner. The said property is under the ownership of Franco Alliance Private Limited, 99.9% shareholding of which is owned by Genestore India Pvt. Ltd, in which the Petitioner admittedly owns 90% of the shareholding.
15. This order shall be subject to further orders of the Sole Arbitrator in the Application filed under Section 17 of the Arbitration and Conciliation Act, 1996, which has been filed by the Respondent No.3 and is now pending before the ld. Sole Arbitrator.
16. It is clarified that this Court has not gone into the merits of the dispute between the Petitioner and Respondent No.3, as also on the merits of the FIR filed.
17. The Respondent No. 2-GNCTD/Delhi Police shall immediately inform the Respondent No. 1-Bureau of Immigration of today’s order and that there are no restrictions on the Petitioner to travel.
18. The petition is disposed of in these terms. All pending applications are also disposed of.
PRATHIBA M. SINGH
JUDGE
MARCH 23, 2023
Rahul/dn
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