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Judgment
This Writ Appeal is filed against the interim order dated 14.3.2013 passed by the learned 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 Respondent herein viz., Ministry of Home Affairs, Bureau of 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. 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:
Therefore, I am inclined to pass the following order in the above Miscellaneous Petition:
An Affidavit of undertaking filed by Chandran Ratnaswami sworn by him on 12.3.2013 at Mumbai is taken on file, wherein, he has undertaken
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;
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., 15.3.2013. On such deposit being made, the Registrar General
shall deposit the money in Indian Bank, High Court Counter, in short term interest accruing deposit.
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 Lookout Notice dated 9.1.2013 issued against Mr. Chandran
Ratnaswami is cancelled forthwith.
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 Hon''ble 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 & 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.
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.
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 offences punishable under Sections 120B, 420, 109, 408 &
409, I.P.C. 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 & 27.12.2012, the First Respondent did not appear and hence
a Lookout 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.
Prior to the filing of charge-sheet in the above said Criminal case in C.C. No. 162 of 2012, there were earlier proceedings between the parties
in Crl. O.P. No. 12695 & 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 the Appellant filed SLP(Crl. M.P.)
Nos. 21069-21070/2010, which was disposed of by the Hon''ble 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.
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 Lookout 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.
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
Hon''ble 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 date 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 SLP 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.
On 29.1.2013 the First Respondent (A-3 in C.C. 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 C.C. 162/2012) filed Crl. O.P. Nos. 2166 & 2282 of 2013 respectively to quash C.C. 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 8.3.2013 and on such appearance, the warrant, if any, shall be recalled.
If the offences are non-bailable in nature, the Petitioners are directed to file bail Applications before the Trial Court 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 and on such sureties, the Trial Court
shall dispose the bail Applications on the same day. The Petitioners are at liberty to file to withdraw the Look-out Application before this Court, if
they are advised to do so.
On 4.2.2013, W.P. Nos. 2739 & 2740 of 2013 were filed by one Ramasamy Athappan and First Respondent herein, praying for issuing a
Writ of mandamus forbearing the 5th & 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 on the
file of Judicial Magistrate No. III Court, Erode and the alleged Lookout Notice 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.
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.
From the above narrated facts it is evident 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 the fact remains, till date he has not obtained any order of anticipatory
bail/bail.
The Appellant herein challenged the interim order dated passed in Crl.O.P. Nos. 2166, 2282 & 2283 of 2013 before the Hon''ble 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
Hon''ble Supreme Court refused to pass any interim order in the Applications filed by the Appellant herein.
Insofar as the Applications filed by Paul Rivert (A-2), the Hon''ble Supreme Court refused to stay the order passed by this Court dated
29.1.2013 & 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 Respondent 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.
The First Respondent thereafter moved this High Court to pass orders in M.P. No. 2 of 2013, which was allowed by the learned Single Judge
holding that since C.C. No. 162 of 2012 is stayed by the Hon''ble Supreme Court and the NBW having been recalled, the basis of the Look out
Notice has gone.
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 Lookout 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 Lookout Notice, and consequent prayer for payment of
compensation.
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 Lookout 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 Hon''ble 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 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 this Court.
On a perusal of the prayer made in the Writ Petition, it is evident that the First Respondent has challenged the Lookout 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
Lookout 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.
It is not in dispute that the very same issues regarding the Lookout 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 Hon''ble Supreme
Court on 3.4.2013. Admittedly the matter is seized of by the Hon''ble Supreme Court and only an interim stay of the proceedings in C.C. 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.
At this juncture, it is relevant to point out that the undertaking given before the Supreme Court by the Italian Mariners 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 this 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.
The Hon''ble Apex Court, in the decision reported in Pune and Anr. v. Bharat Forge Co. Ltd. and Ors., (1995) 3 SCC 434 , 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 Union of India (UOI) Vs. Jaiswal Coal Co. Ltd. and Others, and The State of
Maharashtra Vs. Farook Mohammed Kasim Mapkar and Others, . In the latter decision the Apex Court in paragraph 14 held thus, --
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.
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.