IN THE HIGH COURT OF DELHI
V. Kameswar Rao, J.
Shivani Saxena - Appellant
Versus
Directorate of Enforcement - Respondent
W.P.(C) 8084 of 2020 & CM Appl. 11855 of 2022
Decided On : 22-03-2022
| Table of Content |
|---|
| 1. petitioner must approach special court (Para 1 , 2) |
| 2. applicant's hinders by loc must be considered (Para 4 , 5 , 6) |
| 3. arguments regarding loc's issuance (Para 7 , 8 , 9) |
| 4. petitioner's right to travel as a fundamental right (Para 10 , 11 , 12 , 13) |
| 5. writ jurisdiction should entertain fundamental rights (Para 14 , 15) |
| 6. alternative remedy before special court (Para 16 , 17 , 18 , 19 , 20) |
| 7. jurisdiction on maintainability of writ petitions (Para 21 , 22) |
| 8. court's refusal to entertain writ based on time elapsed (Para 23 , 24) |
| 9. compliance with article 226 based on objections raised (Para 25 , 26 , 27) |
| 10. final decision based on the special court's jurisdiction (Para 28 , 29 , 30) |
| 11. final conclusion on the closure of the petition (Para 35 , 36) |
JUDGMENT
V. Kameswar Rao, J. (Oral)--By this order, I shall decide the objection taken by Mr. Zoheb Hossain, Special Counsel for the respondent No. 1 appearing with Mr. Amit Mahajan (who appears for respondents) that the present petition shall not be maintainable inasmuch as the petitioner must approach the concerned Special Court where the Complaint Case No. 75/2019 filed by the respondent No.1, of which cognizance has been taken by the Special Court by issuing summons to the petitioner herein for appearance on April 30, 2022 is pending. By this order I shall also decide the application filed by the petitioner being CM APPL.11855/2022, wherein the following prayers have been made:
"In the light of the aforesaid facts and circumstances stated herein above, it is hereby most respectfully prayed that this Hon'ble Court may:
i. Direct the suspension of LOC issued against the Petitioner from 14.03.2022 to 29.04.2022 and further allow her to travel to Dubai and Italy during the said period, in the interest of justice.
ii. Any other order which the Hon'ble Court deems fit in the circumstances and in the interest of justice;
It is prayed accordingly."
2. The submission of Mr. Hossain as noted by this Court in the order dated January 03, 2022 for deciding the said issue is reproduced as under:
"3. Today, Mr. Zoheb Hossain, learned counsel for the respondents submits that even though an email has been addressed to the concerned authorities to verify the aforesaid position, no response thereto has been received till date.
4. In the light of the aforesaid and taking judicial notice of the fact that new variant of Covid-19 i.e. Omicron is creating havoc in the entire world, I am of the view that the petitioner should not be denied the opportunity of being administered a booster dose in UAE, especially, when she had taken the earlier two doses of the Covid vaccination in the UAE itself. It may be also noted that the petitioner has already been granted permission to travel abroad several times, which liberty she has never misused. Moreover, the learned Trial Court has, on 17.12.2021, in another case pending against the petitioner, granted her permission to travel abroad for a period of four months, subject to certain conditions.
5. The application, therefore, deserves to be and is allowed by permitting the petitioner to travel to the UAE for a period of eight weeks, which permission would be subject to conditions already imposed by the learned trial court vide its order dated 17.12.2021. The petitioner will return back to the country within eight weeks of her departure from the country.
6. All concerned authorities shall act in compliance with the digitally signed copy of this order, duly uploaded on the official website of the Delhi High Court www.delhihighcourt.nic.in, which shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of the order shall be insisted upon by any authority/entity or litigant.
W.P.(C) 8084/2020
7. Learned Counsel for the respondents submits that in view of a prosecution complaint having been filed against the petitioner in respect of the offence for which the impugned LOC was issued, cognizance whereo
The Special Court has the jurisdiction to consider the withdrawal of LOC, and the petitioner can approach the Special Court for seeking withdrawal of the LOC and permission to travel.
The issuance of Look Out Circular against a UK citizen was unconstitutional, infringing on the right to travel without due cause, lacking sufficient grounds under the governing Office Memorandum.
The fundamental right to travel abroad under Article 21 of the Constitution of India requires a high threshold to be curtailed, and the issuance of Look Out Circulars (LOCs) should be limited to case....
Look Out Circulars must adhere strictly to legal frameworks and cannot deny fundamental rights without justifiable grounds.
The issuance of a LOC must be based on exceptional circumstances and supported by substantial evidence. Mere suspicion is not sufficient to curtail an individual's right to travel abroad.
The issuance and continuation of a Look-Out Circular must be justified by compelling reasons, specifically regarding flight risk or evading justice; lack of fresh evidence can render it arbitrary.
The issuance of Lookout Circulars must be justified and cannot infringe upon the fundamental right to travel without sufficient grounds.
The central legal point established in the judgment is that the right to travel abroad, as guaranteed by Article 21 of the Constitution of India, cannot be curtailed unless a very high threshold is m....
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