SH UTKARSH GOYEL vs UNION OF INDIA & ORS.

$~14 & 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19th FEBRUARY, 2024
IN THE MATTER OF:
+ W.P.(C) 10136/2022 & CM APPL. 29427/2022
SH UTKARSH GOYEL ….. Petitioner
Through: Mr. Bhuvnesh Satija, Ms. Vibhooti Malhotra and Mr. Udit Sharma, Advocates.

versus

UNION OF INDIA & ORS. ….. Respondents
Through: Mr. Ajay Digpaul, CGSC with Mr. Kamal Digpaul and Ms. Ishita Pathak, Advocates for UoI.
Mr. Arun Aggarwal, Mr. Shivam Saini, Mr. Praful Rawat and Ms. Aditi Gupta, Advocates for R-3.

+ W.P.(C) 11630/2022 & CM APPLs. 34506/2022, 40728/2023
SH SORABH GOYEL ….. Petitioner
Through: Mr. Bhuvnesh Satija, Ms. Vibhooti Malhotra and Mr. Udit Sharma, Advocates.

versus

UNION OF INDIA & ORS. ….. Respondents
Through: Mr. Rajesh Kumar, CGSC for UoI.
Mr. Tarveen Singh Nanda, GP for R-2.
Mr. Arun Aggarwal, Mr. Shivam Saini, Mr. Praful Rawat and Ms. Aditi Gupta, Advocates for R-3.

CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT (ORAL)
1. The Petitioners have approached this Court challenging a Lookout Circular (LOC) issued against the Petitioners at the instance of Respondent No.3/Bank of Baroda.
2. The facts as stated in the counter affidavit filed by the Respondent No.3/Bank of Baroda at whose instance the LOC has been opened are that M/s Royal Industries FZ LLC availed of loan from UAE Branch of Respondent No.3. It is stated that the Petitioners are Promoters and Directors of M/s Royal Industries FZ LLC. It is stated that the Petitioners also stood guarantee for the loan availed by the said M/s Royal Industries. It is stated that the borrower did not pay the loan amount and the account of the borrower was classified as an NPA on 30.06.2016.
3. The counter affidavit filed by Respondent No.3 indicates that a complaint that a cheque had been issued for repayment of loan which was dishonoured and a Complaint No.2862/2017 was lodged at Al Raffa Police Station against the signatory of the cheque. The criminal complaint was transferred to Dubai Police Prosecution and thereafter to Dubai Court. The Criminal Court of Dubai convicted the signatory of the cheque and ordered two years of imprisonment. It is also stated that the Respondent No.3 has instituted a civil suit before the Sarjah Court where the Petitioner is a Defendant No.1. A decree has been passed to the tune of Rs.33,95,86,911.30/- and an Execution Petition has also been filed which is pending before the courts in Dubai.
4. It is also stated that there is a travel ban on the directors, promoters and guarantors of the borrower company. The Petitioners are now in India. The short question which arises for consideration is as to whether the Lookout Circular prohibiting the Petitioners from travelling outside the country at the instance of the Bank for an offence committed outside the country can be opened or not.
5. Notice was issued in the writ petitions. Pleadings are complete.
6. Learned Counsel for the Petitioners contends that there are no criminal proceedings against the Petitioners in India and that the Petitioners are not required for any investigation in the country. He, therefore, submits that there is no basis for opening a Lookout Circular within the country which has the effect of taking away the right of the Petitioners to travel abroad which has been read as a part of Article 21 of the Constitution of India. He states that a travel ban to the UAE cannot result in opening a Lookout Circular against the Petitioners in the country and thereby impeding the right of the Petitioners to travel from India to other countries.
7. Per contra, learned Counsel for the Bureau of Immigration states that the Lookout Circular has been opened at the instance of the Respondent No.3/Bank of Baroda.
8. Learned Counsel for Respondent No.3/Bank of Baroda states that the Petitioners owes a substantial amount of money approximately Rs.33,95,86,911.30/- and, therefore, permitting the Petitioners go outside the country will have a detrimental effect to the economic interests of the country.
9. Heard learned Counsel for the parties and perused the material on record.
10. Lookout Circulars are issued to ensure attendance of the person, against whom an LOC has been opened before the investigating agency or before any court. It was found that many persons against whom criminal proceedings were initiated, in order to evade arrest and frustrate the investigation, go outside the country. This Court in various judgments has given direction, as guidance for the agencies and courts to deal with Lookout Circulars, in pursuance to the various orders passed by this Court. The Ministry of Home Affairs vide its Office Memorandum bearing No.25016/31/2010-Imm dated 27.10.2010 brought out the consolidated guidelines for opening of LOCs. The relevant portion of the said Office Memorandum reads as under:
“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 the 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 of
(i) Deputy Secretary to the Government of India; or
(ii) Joint Secretary in the State Government; or
(iii) District Magistrate of the District concerned; or
(iv) Superintendent of Police (SP) of the District concerned; or
(v) SP in CBI or an officer of equivalent level working in CBI; or
(vi) Zonal Director in Narcotics Control Bureau (NCB) or an officer of equivalent level (including Assistant Director (Ops.) in Headquarters of NCB); or
(vii) 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; or
(viii) Assistant Director of IB/BoI; or
(ix) Deputy Secretary of R&AW; or
(x) An officer not below the level of Superintendent of Police in National Investigation Agency; or
(xi) Assistant Director of Enforcement Directorate; or
(xii) 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; or
(xiii) 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 the 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 endure proper communication for effective follow up action.

11. The aforesaid Office Memorandum was amended in the year 2017 under which authorities were conferred with powers to open LOCs in exceptional circumstances, if it appears to such authority, based on inputs received, that the departure of such person is detrimental to the sovereignty or security or integrity of India, or is detrimental to the bilateral relations with any country, or to the strategic and/or economic interest of India, or if such person is allowed to leave, he may potentially indulge in an act of terrorism or offences against the State and/or that such departure ought not to be permitted in the larger public interest at any given point in time.
12. Thereafter, another Office Memorandum bearing No.25016/10/2017-Imm (Pt.) dated 22.02.2021 was issued by Ministry of Home Affairs by which fresh guidelines have been issued for opening of LOCs in respect of the Indian Citizens and Foreigners. The relevant portion of the guidelines reads as under:
“(A) The request for opening an LOC would be made by the Originating Agency (OA) to the Deputy Director, Bureau of Immigration (BoI), East Block- VIII, R.K. Puram. New Delhi – 110066 (Telefax: 011-26192883, email: boihq@nic.in) in the enclosed Proforma.

(B) The request for opening of LOC must invariably be issued with the approval of an Originating Agency that shall be an officer not below the rank of –

(i) Deputy Secretary to the Government of India; or
(ii) Joint Secretary in the State Government; or
(iii) District Magistrate of the District concerned: or
(iv) Superintendent of Police (SP) of the District concerned; or
(v) SP in CBI or an officer of equivalent level working in CBI; or
(vi) Zonal Director in Narcotics Control Bureau (NCB) or an officer of equivalent level [including Assistant Director (Ops.) in Headquarters of NCB); or
(vii) Deputy Commissioner or an officer of equivalent level in the Directorate of Revenue Intelligence or Central Board of Direct Taxes or Central Board of Indirect Taxes and Customs: or
(viii) Assistant Director of Intelligence Bureau/ Bureau of Immigration (Bol); or
(ix) Deputy Secretary of Research and Analysis Wing (R&AW); or
(x) An officer not below the level of Superintendent of Police in National Investigation Agency; or
(xi) Assistant Director of Enforcement Directorate; or
(?ii) Protector of Emigrants in the office of the Protectorate of Emigrants or an officer not below the rank of Deputy Secretary to the Government of India; or
(xiii) Designated officer of Interpol; or
(xiv) An officer of Serious Fraud Investigation Office (SFIO), Ministry of Corporate Affairs not below the rank of Additional Director (in the rank of Director in the Government of India); or
(xv) Chairman/ Managing Directors/ Chief Executive of all Public Sector Banks.

(C) LOCs can also be issued as per directions of any Criminal Court in India. In all such cases, request for opening of LOC shall be initiated by the local police or by any other Law Enforcement Agencies concerned so that all parameters for opening LOCs are available.

(D) 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.

(E) 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. Originator shall also provide the following additional information in column VI of the enclosed Proforma to ensure proper communication for effective follow up action:-

(i) Two Gov/ NIC email IDS
(ii) Landline number of two officials
(iii) Mobile numbers of at least two officials, one of whom shall be the originator

(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.

(G) The legal liability of the action taken by the immigration authorities in pursuance of the LOC rests with the originating agency.

(H) 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.

(I) In cases where there is no cognizable offence under IPC and 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 such cases.”

13. The abovementioned guidelines show that the ordinary recourse to open LOCs is to be taken when the allegation of a cognizable offence under IPC and other penal laws against the person against which LOC is intended to be opened. However, in exceptional circumstances, LOCs can be opened in such cases which are not covered by the guidelines, if it is felt that the person concerned may leave the country would be against the economic interest of the country and other circulars mentioned in Para I of the OM dated 22.02.2021.
14. In the facts of the present case, there are no civil or criminal proceedings against the Petitioners in India. The Respondent/Bank has already initiated proceedings for recovery of money against the Petitioner outside the country. There is nothing on record to indicate that the Bank has resorted to execute the decree against the Petitioners inside the country.
15. In the absence of any amount payable within India, the threshold of default which would render an impact on the country’s economic interest or the larger public interest is not spelt out in the said Office Memorandum. Simple defaults of loan payable outside the country cannot get elevated to an exceptional circumstance where the Petitioner’s departure from the country would cause an adverse impact to the nation’s economy. The validity and legality of LOC’s therefore, heavily depends on the prevailing circumstances governing the date on which such an LOC request is being made. Based on the materials placed on record in the instant case, this Court is of the opinion that no exceptional case of adverse effects on India’s economic interest exists. The fact that Respondent No.3 which is the Originator is in India alone cannot be a reason to open a Lookout Circular since the loan has been disbursed outside the country.
16. It is well settled that the purpose of opening an LOC is to ensure that if a person, against whom the LOC has been opened, is allowed to leave the country then that person should come back. LOC is issued to secure the presence of such person so that the person can cooperate with the investigation and he is present to attend the court proceedings, which is absent in the present case.
17. LOC is a major impediment for a person who wants to travel abroad. There are plethora of judgments which states that no person can be deprived of his right to go abroad other than for very compelling reasons. In Maneka Gandhi v Union of India, (1978) 1 SCC 248, a Seven Judge Bench of the Apex Court has held as under:
“5. …Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports Act, 1967 that it lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, the procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney-General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law….”

18. In Chandra Verma vs. Union of India &Ors; (2019) SCC Online SC 2048, the Apex Court has also held that such a right cannot be prevented from being exercised without due process of law. Relevant portion of the said judgment reads as under:
“5. The right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience. The right also extends to private life; marriage, family and friendship are humanities which can be rarely affected through refusal of freedom to go abroad and clearly show that this freedom is a genuine human right.” 

19. As stated above, the right to travel abroad is a basic human right and a part of Article 21 of the Constitution of India and no person can be deprived of this right without following the due process of law. Any State action must satisfy the requirements of Articles 14, 19 & 21 of the Constitution of India and must be reasonable and non arbitrary. The Courts in such cases will have it well within their mandate under Article 226 of the Constitution of India to intervene in the said decisions of Look Out Circulars’ issuing authorities to prevent such unreasonableness and perversity and in ensuring adequate conformity to both the form and substance of the standards set in the Official Memorandums from which the power to issue LOCs are derived.
20. Resultantly, the writ petitions stand allowed. Pending application(s), if any, stand disposed of.
21. It is always open for the Respondents to open a fresh Lookout Circular against the Petitioners in case the criminal case is registered against the Petitioners in India.

SUBRAMONIUM PRASAD, J
FEBRUARY 19, 2024
hsk

W.P.(C) 10136/2022 & W.P.(C) 11630/2022 Page 12 of 12