Look Out Notice cannot be issued without reasons for apprehension that accused is deliberately evading arrest

Afzal Jaffer Khan Vs CBI ACB Office and ors

Bombay HC

29/08/2019

CRI WRIT PETITION NO. 263 OF 2019

About/from the judgment:

The court was hearing a petition filed by Khan seeking details of the look-out notice issued against him dated June 22, 2018 and quashing of the same.

 

Submissions

 

CBI's counsel Hiten Venegaonkar informed the bench that the said look-out notice was issued based on the apprehension that the petitioner may abscond and never return to India to face legal action launched against him in relation to a case registered under Section 120-B read with Section 420 of Indian Penal Code and Sections 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988.

 

There are 20 persons arraigned as accused in the said case, and the petitioner's name appears at serial no.18, Venegaonkar told the Court and asserted that no interference was required at this stage as FIR was pending against the petitioner.

 

Appearing for the petitioner, Advocate Sujay Kantawala submitted that on April 3, 2012, search and seizure was conducted by CBI at his client's premises and on June 20, 2018, CBI asked for copy of passport and photograph of the petitioner. The petitioner furnished copy of his passport and photograph through email and on August 15, 2018, he was detained and off loaded and was not allowed to travel out of India by immigration officers on the basis of CBI's look­out notice. Thereafter, on December 24, 2018, petitioner requested CBI to provide and furnish the details of the look­out notice. Those details were not provided.

 

Kantawala, argued that the FIR was registered seven years back and from the date of registration of the subject FIR, his client has travelled abroad on 17 occasions and provided details of each of those visits. Also, the petitioner has reported to CBI for the purpose of investigation of the subject FIR on eight occasions and, therefore, it cannot be said that he is not co­operating with the investigation agency, Kantawala said.

 

He relied upon the decision of Delhi High Court in the case of Sumer Singh Salkan vs. Asstt. Director & ors, and submitted that the respondent could not have issued Look Out Circular (LOC) in the absence of any material with CBI to conclude that the petitioner is deliberately evading arrest/trial.

 

Judgment

 

After examining the submissions of both parties, the bench observed-

"The decision of the Delhi High Court is based on the judgment of the Apex Court in Maneka Gandhi vs. Union of India. The decision of the Delhi High Court in Sumer Salkan (supra) is followed by the Madras High Court in the case of Cheruvathur Chakkutty Thampi @ CC Thampi vs. Union of India and others. The decision of the Delhi High Court in the case of Sumer Salkan (supra) makes it abundantly clear that recourse to look­out notice can be taken by the investigating agency in cognizable offences under IPC or the 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/ investigation.

 

In the circumstances, we are of the considered view that the look-out notice could not have been issued after the period of six years from the date of registration of subject crime, especially in absence of any material to support respondent's apprehension. The look-out notice, therefore, cannot be sustained and the same deserves to be quashed and set aside".

 

However, the Court deferred quashing of the LOC till October 11, 2019 and suspended it for a ten-day period between September 2 and September 11, in order to allow the petitioner to travel. Thereafter, for the purposes of facilitating co-operation by the petitioner in the investigation, Court directed the petitioner not to travel outside the country after he is back from the said trip for a month.

Read the Judgment

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