Right To Travel Abroad | Mere Pendency Of Investigation Cannot Justify Prolonged Look Out Circular, Delhi High Court
Isabella Mariam
The High Court of Delhi Single Bench of Justice Purushaindra Kumar Kaurav quashed a look out circular issued against a woman accused in a ₹22.5 crore real estate investment dispute, holding that the mere pendency of investigation or registration of a criminal case cannot, by itself, justify continuing an LOC for a prolonged period. The allegation arose from a 2013 investment arrangement for a real estate project, where the complainant’s side claimed funds were not dealt with as promised, leading to a criminal complaint for cheating and breach of trust. The Court held that an indefinite restriction on overseas travel curtails personal liberty under Article 21 and directed withdrawal of the LOC subject to an undertaking to cooperate, production of available documents, and prior intimation before travel, with court permission required after any charge-sheet is filed.
The petitioner obtained anticipatory bail in August 2022, with the court noting that no illegality or siphoning of funds was apparent and that the project was substantially complete. The petitioner contended that she had cooperated with the investigation, but despite bail, she was not called for investigation for over three years. She further argued that the Look-Out Circular was unjustified, as she was prevented from traveling abroad without being furnished with reasons.
The respondents filed a status report in November 2022, recording that the petitioner did not have any major role in the investigation. The petitioner highlighted that other proceedings initiated against her and her associates, including insolvency proceedings and complaints before investigative agencies, had been dismissed or closed.
Justice Purushaindra Kumar Kaurav observed that the Court was concerned only with the justification of the LOC and not with the veracity of allegations in the FIR. “The Court is only concerned with the issue of the justification of LOC.”
The Court referred to earlier precedents, including Sumer Singh Salkan, where it was stated: “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/arrest.”
It was further recorded that “LOC is a coercive measure to make a person surrender to the investigating agency or Court of law.”
In Puja Chadha v. Directorate of Enforcement, the Court had held that “the power to issue an LOC is an extraordinary and coercive measure which has a direct bearing on an individual’s right to travel, and therefore must be exercised strictly in accordance with law.”
The Court also noted observations in Brij Bhushan Kathuria v. Union of India: “An LOC has the effect of seriously jeopardising the right to travel of an individual. The settled legal position… is that unless and until there is an FIR which is lodged or a criminal case which is pending, an LOC cannot be issued.”
In Ashutosh Sharma v. Union of India, it was recorded: “The mere apprehension of default cannot be a basis for opening an indefinite LOC against him, thereby restricting the movement of a citizen who has a right to travel abroad which is acknowledged to be a fundamental right under Article 21 of the Constitution of India.”
The Court observed that in the present case, “the petitioner has remained diligent and available to the investigating agency and has joined the investigation as and when required.” It was further noted that “no allegation has been made by the investigating agency of non-cooperation, evasion of summons, or interference with the investigation.”
The Court stated that “the petitioner does not pose a flight risk… Despite this meticulous conduct, the LOC has continued to remain in force without any fresh or contemporaneous material being placed on record to justify its continuation.”
Finally, the Court recorded: “Mere pendency of investigation or registration of a criminal case cannot justify the prolonged operation of LOC.”
The Court directed: “The petitioner shall file an undertaking by way of an affidavit before the investigating agency, affirming that she shall continue to cooperate with the investigation and shall appear before the investigating agency as and when required.”
“The petitioner shall produce all material documents as may be sought by the investigating agency, insofar as the same are available and within her possession or control. The petitioner shall intimate the investigating agency in writing at least seven days prior to undertaking any travel abroad, so long as the charge-sheet has not been filed. Upon filing of the charge-sheet, the petitioner shall seek prior permission from the concerned trial court before travelling abroad.”
“In the event the investigating agency or the concerned trial court harbours any reservation with respect to the petitioner’s proposed travel, it shall be open to the investigating agency or the concerned court to take appropriate steps in accordance with law, including restraining such travel or initiating proceedings for issuance of a fresh LOC. With the aforesaid observations, the petition stands disposed of.”
Advocates Representing the Parties
For the Petitioners: Mr. Ashish Dholakia, Senior Advocate with Mr. Ankur Khandelwal, Mr. Chirag Sharma, Mr. Subhoday Banerjee, Mr. Nikhil Saurabh and Ms. Kajal Andhiwal, Advocates
For the Respondents: Ms. Sunandha Shukla, SPC for UOI; Ms. Arti Bansal, CGSC with Ms. Shruti Goel, Advocate with SI Praveen
Case Title: Maria Ramesh v. Union of India and Anr.
Case Number: W.P.(C) 15701/2022
Bench: Justice Purushaindra Kumar Kaurav
