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2013 DIGILAW 1412 (MAD)

K. C. Palanisamy v. Chandran Ratnaswami

2013-03-22

N.PAUL VASANTHAKUMAR, R.K.AGRAWAL

body2013
Judgment :- R.K. AGRAWAL, A.C.J., & N. PAUL VASANTHAKUMAR, J. 1. This writ appeal is filed against the interim order 14.3.2013 passed by the learning single Judge of this Court in M.P.No.2 of 2013 in W.P.No.2740 of 2013, which was filed by the first respondent herein viz., Chandran Ratnaswami, a Canadian Citizen with a prayer to direct the 6th respondent in the writ petition/7th Immigration, South Block, New Delhi-1 and its constituent officers at the Airports to permit him to travel into or out of India freely and without any obstruction, as a result of the Non-Bailable arrest Warrant dated 27.9.2012, issued against him individually and as representative of O.R.E. Holdings Limited and Odyssey America Reinsurance Corporation, in respect of C. C. No. 162 of 2012, pending on the file of the Judicial Magistrate Court No.III, Erode, and the alleged Look-out Notice dated 9.1.2013, pending disposal of the writ petition. 2. The learned single Judge allowed the said M. P. No.2 of 2013 in W.P.NO. 2740 of 2013 on 14.3.2013 by passing the following order: “21. Therefore, I am inclined to pass the following order in the above miscellaneous petition: 1. An affidavit of undertaking filed by Chandran Ratnaswami sworn by him on 12.3.2013 at Mumbai is taken on file, wherein, he has undertaking not to evade the due process of law and he shall ensure his appearance as and when required in the proceeding C.C.No.162 of 2012 before the learned Judicial Magistrate-III, Erode; 2. The petitioner, Mr.Chandran Ratnaswami shall deposit a sum of Rs. 25,00,000/-(Rupees Twenty Five Lakhs) before the Registrar General, High Court, Madras to the credit of W.P.No.2740 of 2013 by tomorrow, i.e., 15.03.2013. On such deposit being made, the Registrar General shall deposit the money in India Bank, High Court counter, in short term interest accruing deposit. 3. The 6th respondent, Ministry of Home Affairs, Bureau of Immigration, South Block, New Delhi and their constituent officers at the Airports are hereby directed to permit the petitioner to travel into or out of India freely and the Look-out Notice dated 09.01.2013 issued against Mr. Chandran Ratnaswami is cancelled forthwith.” 3. 3. The 6th respondent, Ministry of Home Affairs, Bureau of Immigration, South Block, New Delhi and their constituent officers at the Airports are hereby directed to permit the petitioner to travel into or out of India freely and the Look-out Notice dated 09.01.2013 issued against Mr. Chandran Ratnaswami is cancelled forthwith.” 3. The above said order is challenged in this writ appeal contending that granting mandatory relief to the first respondent in the writ appeal, who is an accused in C.C.No.162 of 2012 on the file of the Judicial Magistrate Court No.III, Erode, to leave the country during pendency of the S.L.P.(C).No.1924-1926 of 2013, which is posted for hearing on 3.4.2013 before the Honourable Supreme Court is not proper; that the first respondent played fraud on the Court of Judicial Magistrate No.III, Erode and caused to recall the warrant on 4.3.2013 by suppressing the order passed by this Court on 29.1.2013 and 1.2.2013; and that, the first respondent filed surrender petition alone, without filing bail petition before the learned Judicial Magistrate Court No.III, Erode. 4. Heard Mr. V. Lakshminarayanan, learned counsel appearing for the appellant; Mr. Nageshwara Rao, learned Senior Counsel appearing for the first respondent; Mr. S. Shunmugavelayutham, learned public prosecutor for respondents 2,3,5, & 6; Mr. Karthick Seshadri, learned counsel for 4th respondent; and Mr.v.Parivallal, learned Central Government Standing Counsel for 7th respondent/Ministry of Home Affairs. 5. Criminal case in C.C.No.162 of 2012 is pending on the file of Judicial Magistrate Court No.III, Erode against the first respondent and others. The first respondent is arraigned as accused No.3 in the said case for the offence punishable under sections 120B, 420, 109,408 and 409 IPC. The first respondent failed to appear during hearing of the said case and a Non-bailable Warrant was issued on 26.9.2012, returnable by 26.10.2012. For the subsequent hearings on 26.10.2012, 7.11.2012, and 27.12.2012 the first respondent did not appear and hence a Look-out notice was issued on 9.1.2013 by the Deputy, Superintendent of Police, District Crime Records Bureau, Tiruppur, ordering to restrain or restrict the first respondent’s entry into or exit out of India. 6. For the subsequent hearings on 26.10.2012, 7.11.2012, and 27.12.2012 the first respondent did not appear and hence a Look-out notice was issued on 9.1.2013 by the Deputy, Superintendent of Police, District Crime Records Bureau, Tiruppur, ordering to restrain or restrict the first respondent’s entry into or exit out of India. 6. Prior to the filling of charge sheet in the above said criminal case in C. C. No. 162 of 2012, there earlier proceedings between the parties in Crl.O.P.No.12695 and 19384 of 2007, which were filed to quash the FIR registered in Crime No.7 of 2007 on the file of the Inspector of Police, District Crime Branch, Erode, and an order was passed on 8.2.2010, recording the statement made by the learned Government Advocate (Criminal Side) that the “Police had dropped action in the matter as mistake of fact”. Against the said order appellant, filed SLP (Crl.M.P.) Nos.21069-21070/2010, which was disposed of by the Honourable Supreme Court on 22.11.2010 granting liberty to the appellant to proceed with the protest petition, which is said to be pending before the Judicial Magistrate Court, Kangeyam., to be disposed of on merits, in accordance with law. 7. On 22.1.2013 the first respondent, who is a Canadian Citizen, arrived at Mumbai Airport and the Immigration Officer, Mumbai, International Airport/4th respondent herein, detained him pursuant to the Look-out Notice dated 9.1.2013. On the same day, i.e., on 22.1.2013, W.P.No.1764 of 2013 was filed by the first respondent before this Court praying for issuance of a writ of mandamus not to take any coercive action pertaining to or in respect of FIR No.7 of 2007. This Court passed an interim order in M.P.No.1 of 2013 in W.P.No.1764 of 2013 on the same day to the effect that there will be an interim injunction till 29.1.2013 restraining the respondents therein from detaining or arresting the first respondent in respect of FIR No.7 of 2007, with a condition that the first respondent shall not leave the country without leave of the Court. The appellant was permitted to file an implead petition and oppose the writ petition as well as interim injunction petition and the matter was adjourned to 29.1.2013. 8. The appellant was permitted to file an implead petition and oppose the writ petition as well as interim injunction petition and the matter was adjourned to 29.1.2013. 8. As against the said interim order dated 22.1.2013, the appellant filed S.L.P. (C) CC.No.3261 of 2013, which was disposed of by the Honourable Supreme Court on 24.1.2013 observing as follows: “In view of the fact that the High Court itself has posted the matter on 29th January, 2013 for further hearing, we are not inclined to interfere at this juncture. However, on the said dated before extending the interim order or passing any order in that petition, we request the High Court to consider the objections of the State as well as the present applicant including the maintainability of the said petition. With the above observation, the special leave petition is disposed of.” The said M.P.No.1 of 2013 in W.P.No.1764 of 2013 was again posted before this court and interim order was extended till 31.1.2013 by order dated 29.1.2013. 9. On 29.1.2013 the first respondent (A-3 in CC.162/2012) filed Crl.O.P.No.2283 of 2013. One Ramasamy Athappan (A-4 in CC.162/2012) and one Paul Rivert. (A-2 in CC.162/2012) filed Crl.O.P.Nos.2166 and 2282 of 2013 respectively to quash CC.No.162 of 2012, which is pending on the file of Judicial Magistrate Court No.III, Erode, and this court passed an order to the effect that the first respondent herein and other petitioners have to surrender before the said court within a period of three weeks from the date of receipt of copy of the order and in the event of their surrender, the learned Judicial Magistrate was directed to consider the bail application to be filed and dispose of the same on merits, on the same day. After pronouncing the said order, learned counsel appearing for the petitioners in the said Crl.O.Ps contended that the petitioners are living in foreign country and instruction from their clients to surrender before the court is to be obtained. In view of the same, on 5.2.2013 again the Crl.O.Ps. were heard and the order dated 29.1.2013 was modified to the following effect. “The petitioners are directed to appear before the trial court on or before 08.03.2013 and on such appearance, the warrant, if any, shall be recalled. If the offences are non bailable in nature, the petitioners are directed along with a bond for a sum of Rs. were heard and the order dated 29.1.2013 was modified to the following effect. “The petitioners are directed to appear before the trial court on or before 08.03.2013 and on such appearance, the warrant, if any, shall be recalled. If the offences are non bailable in nature, the petitioners are directed along with a bond for a sum of Rs. 10,000/- (Rupees Ten thousand) with two sureties each for like sum to the satisfaction of the trial court dispose the bail applications on the same day. The petitioners are at liberty to file to withdrawn the look-out application before this court, if they are advised to do so.” 10. On 4.2.2013, W.P.Nos.2739 and 2740 of 2013 were filed by one Ramasamy Athappan and first respondent herein, praying for issuing a writ of mandamus forbearing the 5th and 6th respondents in the writ petitions and its constituent officers at all Airports from acting upon the Non-bailable arrest warrant dated 26.9.2012 issued against the said writ petitioners individually in respect of C.C.No.162 of 2012, pending of the file of Judicial Magistrate No.III Court, Erode and the alleged Look-out noticed dated 9.1.2013 issued by the 5th respondent in the writ petition, in any manner restraining/restricting their entry into or exit out of India and consequently direct the said respondents to jointly and severally pay a sum of Rs.10 crores as compensation for the illegal detention of the first respondent on 22.1.2013. Along with the said writ petition, first respondent filed a stay petition to stay the operation of the NBW issued on 26.9.2012 and the Look-out Notice dated 9.1.2013. A direction petition was also filed in M.P.No.2 of 2013. 11. On 4.2.2013, the first respondent surrendered himself before the Judicial Magistrate Court No.III, Erode and the warrant was recalled. In the surrender petition, the first respondent suppressed the order passed by this court on 1.2.2013 directing the first respondent to file bail petition and seek bail. In spite of giving such direction, the first respondent failed to file any bail application till date. In view of the order recalling the warrant, this court called for a report from the learned Judicial Magistrate No.III, Erode. 12. In spite of giving such direction, the first respondent failed to file any bail application till date. In view of the order recalling the warrant, this court called for a report from the learned Judicial Magistrate No.III, Erode. 12. From the above narrated facts it is evidence that the first respondent has not filed bail application while surrendering himself before the Judicial Magistrate No.III, Erode, for recalling the Non-Bailable Warrant and fact remains, till date he has not obtained any order of anticipatory bail-bail. 13. The appellant herein challenged the interim order dated 26.2.2013 passed in Crl.O.P.Nos.2166, 2282 and 2283 of 2013 before the Honourable Supreme Court in SLP (C) Nos.1924-1926 of 2013. Accused No.2 in the said C.C.No.162 of 2012 viz., Paul Rivert filed S.L.P.(Crl)No.1947-1948 of 2013 and prayed to quash the proceedings pending before the Judicial Magistrate Court No.III, Erode and also prayed for an interim order to dispense with his personal appearance before the Judicial Magistrate Court No.III, Erode in connection with C.C.No.162 of 2012. The Honourable Supreme Court refused to pass any interim order in the applications filed by the appellant herein. 14. Insofar as the applications filed by Paul Rivert (A-2), the Honourable Supreme Court refused to stay the order passed by this Court dated 29.1.2013 and 1.2.2013 in Crl.O.P.No.2282 of 2013 and granted stay of the proceedings in C.C.No.162 of 2013, pending on the file of Judicial Magistrate Court No.III, Erode, pending further orders. The prayer for dispensing with his appearance was not granted. The appellant thereafter filed Crl.M.P.Nos.5810 to 5812 of 2013 in SLP (Crl) No.1924-1926 of 2013 and prayed for restraining the first respondents from leaving India, pending SLP or direct the first respondent to surrender his passport before the Judicial Magistrate Court No.III, Erode, No order was passed in the said petition and the matter is adjourned to 3.4.2013 before the Supreme Court for further hearing. 15. The first respondent thereafter moved this High Court to pass orders in M.P.No.2 of 2013, with was allowed by the learned single Judge holding that since CC.No.162 of 2012 is stayed by the Honourable Supreme Court and the NBW having been recalled, the basis of the Look out Notice has gone. 16. 15. The first respondent thereafter moved this High Court to pass orders in M.P.No.2 of 2013, with was allowed by the learned single Judge holding that since CC.No.162 of 2012 is stayed by the Honourable Supreme Court and the NBW having been recalled, the basis of the Look out Notice has gone. 16. The contention of the learned counsel appearing for the appellant is that when the matter is posted for hearing before the Supreme Court on 3.4.2013, the direction issued by the learned single Judge cancelling the Look-out Notice dated 9.1.2013 and permitting the first respondent to file an undertaking affidavit stating that he will not evade the due process of law and he will ensure his appearance as and when required in the proceedings in C.C.No.162 of 2012 and the condition to deposit a sum of Rs.25 lakhs with the Registrar General of this Court, is virtually allowing the writ petition, wherein the first respondent’s main prayer is to quash the Look-out Notice, and consequent prayer for payment of compensation. 17. The learned senior counsel appearing for the first respondent on the other hand submitted that when the proceedings in C.C.No.162 of 2013 having been stayed by the Supreme Court and the warrant issued by the Judicial Magistrate No.III, Erode having been recalled, the basis of the Look-out Notice dated 9.1.2013 is not in existence, and therefore the learned single Judge was right in passing the order in M.P.No.2 of 2013 in W.P.No.2740 of 2013 on 14.3.2013. The learned Senior Counsel also submitted that on 15.3.2013 a mention was made before the Supreme Court and the Honourable Supreme Court refused to advance the hearing of SLP,. Which is directed to be posted for hearing on 3.4.2013. The learned Senior Counsel also submitted that on 15.3.2013 the first respondent deposited a sum of Rs.25 lakhs as ordered by the learned single Judge. Therefore, according to the learned Senior Counsel for the first respondent, appellant is not entitled to get any indulgence from his Court. 18. On a perusal of the prayer made in the writ petition, it is evident that the first respondent has challenged the Look-out Notice issued on 9.1.2013 and consequently prayed for payment of compensation. Therefore, according to the learned Senior Counsel for the first respondent, appellant is not entitled to get any indulgence from his Court. 18. On a perusal of the prayer made in the writ petition, it is evident that the first respondent has challenged the Look-out Notice issued on 9.1.2013 and consequently prayed for payment of compensation. The learned Single judge in the above miscellaneous petition has held that the Look-out Notice dated 9.1.2013 is cancelled and allowed the first respondent to leave India after filing undertaking affidavit and deposit a sum of Rs.25 lakhs. 19. It is not in dispute that the very same issues regarding the Look-out Notice and the prayer to quash C.C.No.162 of 2012 pending on the file of JM III Court, Erode, which was filed at the instance of another accused (A-2 Paul Rivert) are posted for hearing before the Honourable Supreme Court on 3.4.2012. Admittedly the matter is seized of by the Honourable Supreme Court and only an interim stay of the proceedings in CC.No.162 of 2012 was ordered by the Apex Court, that too at the instance of A-2 in the above C.C.No. 162 of 2013, and the prayer to dispense with the appearance of A-2 was not granted. If the order of the learned single Judge dated 14.3.2013 is to be implemented immediately, it may be difficult to secure the presence of the first respondent in the criminal case. 20. At this juncture, it is relevant to point out that the undertaking given before the Supreme Court by the Italian Marigners having not been obeyed, the Supreme Court restrained the Italian Diplomat not to leave India, until further orders. The first respondent herein is a citizen of Canada and if under an interim order passed by th9is Court, he is permitted to leave the country, later on it may be difficult to enforce his presence in the criminal case, in case he does not honour his undertaking. 21. The Honourable Apex Court, in the decision reported in 1995 Supp (3) SCC 434 (Chhavi Mohrotra v. Director General, Health Services) considered the jurisdiction exercised by the High Court while the same is pending before the Supreme Court and in paragraph 1 held thus, “……………. 21. The Honourable Apex Court, in the decision reported in 1995 Supp (3) SCC 434 (Chhavi Mohrotra v. Director General, Health Services) considered the jurisdiction exercised by the High Court while the same is pending before the Supreme Court and in paragraph 1 held thus, “……………. It is a clear case where the High Court ought not to have exercised jurisdiction under Article 226 where the matter was clearly seized of by this court in a petition under Article 32. The petitioner was eo nomine a party to the proceedings before this court. It is an unhappy situation that the learned Judge of the High Court permitted himself to issue certain directions which, if implemented, would detract from the plenitude of the orders of this Court. The learned Single Judge’s perception of justice of the matter might have been different and the abstinence that the observance of judicial propriety, counsels might be unsatisfactory; but judicial discipline would require that in a hierarchical system it is imperative that such conflicting exercise of jurisdiction should strictly be avoided. We restrain ourselves from saying anything more.” The said position is reiterated in the decision reported in (1999) 5 SCC 733 (Union of India v. Jaiswal Coal Company Limited) and (2010) 8 SCC 582 (State of Maharashtra v. Farook Mohammed Kasim Mapkar). In the latter decision the Apex Court in paragraph 14 held thus, “14. There is no dispute about the proposition and this Court reiterated that judicial discipline would require that in a hierarchical system, such conflicting exercise of jurisdiction should be avoided. However, the dictum laid down in that case is not applicable to the case on hand, because in Chhavi Mehrotra, the same petitioner after filing writ petition under Article 32 and getting certain directions approached the High Court under Article 226 and the High Court had issued more directions. When this was brought to the notice of this court, after pointing out the practice and procedure, this Court dissatisfied with the High Court’s move.” 22. On the above said background and in the light of the decisions cited supra, we are of the considered view that the order passed by the learned single Judge in M.P.No.2 of 2013 in W.P.No.2740 of 2013 dated 14.3.2013 is liable to be set aside, and accordingly set aside. The writ appeal is allowed. On the above said background and in the light of the decisions cited supra, we are of the considered view that the order passed by the learned single Judge in M.P.No.2 of 2013 in W.P.No.2740 of 2013 dated 14.3.2013 is liable to be set aside, and accordingly set aside. The writ appeal is allowed. Consequently, the first respondent is entitled to get refund of the amount deposited by him on 15.3.2013 pursuant to the interim order of the learned Single Judge. No costs. Connected M.P.No.1 of 2013 is closed.