Delhi High Court: By way of the present writ petition, the petitioner challenged the issuance of the Look Out Circular (‘LOC’) against him by the Ministry of Corporate Affair (‘M CA’) and the Serious Fraud Investigation Office (‘SFIO’) stating that he was one of the longest serving Directors of the Techpro Systems Limited (‘Company’). While exercising its writ jurisdiction, the Single Judge bench of Pratibha M. Singh J., after perusing the Office Memorandum which protected the subject from detention and arrest if the offence was not a cognizable offence under the Penal Code, 1860, changed the status of LOC and directed the immigration authorities to inform the SFIOs about the entry and exit of the petitioner from time to time. However, it was clarified that the petitioner would have no obligation to inform the SFIO about his travel outside India.
In the case at hand, petitioner wass a Chartered Accountant who was inducted in Board of Techpro Systems Limited as non-executive independent Director in 2007, In 2009, he relocated to Oman and due to his full time employment in Oman and health concerns, he resigned from the post of independent Director of the Company. Subsequently, in 2017, Corporate Insolvency Resolution Proceedings were initiated against the Company of which the Resolution Plan was approved in 2019.
On 21-02-2021, the petitioner was scheduled to fly back to Oman after his travel to India, however, he was stopped at the airport and was intimated about the LOC issued against him..
The Court took note of the stay application dated 12-04-2021, wherein the Court merely considered the question as to whether the LOC deserves to be stayed or not, and said that there is no criminal case pending against the Petitioner. His role is also yet to be ascertained by the investigating authorities. Phrases such as ‘economic interest’ or ‘larger public interest’ cannot be expanded in a manner to include an Independent Director who was in the past associated with the company being investigated, without any specific role being attributed to him, as in the present case.
Further,after perusing all the documents on record, the Court opined that the present case would fall under Clause (i) of the Office Memorandum dated 22-02-2021 i.e. “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.”
With the above observation, the Bench directed the immigration authorities to inform the SFIOs about the entry and exit of the petitioner from time to time. However, it was clarified that the petitioner would have no obligation to inform the SFIO about his travel outside India.
The Bench found it appropriate to impose certain conditions after changing the status of the LOC.
The Petitioner would present himself in the Indian Embassy in Oman on the first Monday of every month.
The Petitioner’s undertaking filed in compliance of order dated 12-04-2021 that he would present himself before the Authorities upon a 15 days’ notice, would continue.
All remaining conditions imposed on the petitioner stood discharged.
[Brij Bhushan Kathuria v Union of India, 2023 SCC OnLine Del 1860, decided on 24-03-2023]
Advocates who appeared in this case:
For the Petitioner: Senior Advocate Maninder Acharya, AdvocateSiddhart Bhatli, Advocate Lashita Dhingra;
For the Respondents: Central Government Standing Counsel Rakesh Kumar, Advocate Shriram Tiwary Advocate Salman Razi and Advocate Nitin Agnihotri.