Are central agencies above Parliament? Bombay High Court questions issuance of LOC for accused out on bail

The Bombay High Court on Wednesday reprimanded the Central agencies for having issued Look Out Circulars (LOC) against an accused even after the accused had been arrested and subsequently granted bail by various courts..A Division Bench of Justices AS Gadkari and Milind Jadhav asked counsel appearing for the central agencies - Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) - under which law was an LOC issued when the accused had been released on bail by the Supreme Court."Once bail is granted, then an accused is under custody of the court which granted bail. How can you (the agency) supersede judicial orders like that? Are you (central agency) above Parliament? You are overreaching Parliament now?”, the Bench asked..The Court was hearing the writ petition filed by Roshini Kapoor, daughter of Yes Bank founder Rana Kapoor, challenging the Look Out Circulars issued against her by the Ministry of Home Affairs at the instance of the Central Bureau of Investigation.Kapoor was being investigated by CBI as well as ED for being part of a criminal conspiracy to allegedly receive undue benefits in exchange for extending fraudulent financial assistance to Dewan Housing Financial Limited (DHFL).Kapoor stated in her plea stated that keeping LOC persisting against an accused who had been arrested was superseding the law..The Court, however, interrupted the lawyer to enquire how could an LOC be issued against a person who had been arrested.“Lookout notices is only for absconding accused, once the accused is arrested, then lookout notice must end” Justice Gadkari quipped.Special counsel Hiten Venegaonkar appearing for both central agencies meanwhile justified to the Court why the notices were merely suspended once the accused was arrested.“Once the accused is released on bail, then the LOC has to be considered. It has been found in several cases, that despite conditions imposed by the Court while granting bail, the accused have jumped the order and crosses territories of the country, after which it becomes difficult to track them” the counsel contended.Pranav Badheka, counsel for Kapoor, quickly updated the Court with the dates of bail granted and conditions imposed.In November 2020, the Metropolitan Magistrate at Esplanade granted bail to Kapoor in CBI's case imposing a condition that Kapoor will deposit her passport with CBI and in the event she wants to travel abroad, she will have to take prior permission.In December 2020, the Special Court under the Prevention of Money Laundering Act (PMLA) granted bail to the applicant, without taking her into judicial custody by imposing similar conditions.In September 2021, CBI filed an application seeking Kapoor’s judicial custody which was allowed by the Special Court. This was challenged in High Court and subsequently, the Supreme Court granted interim bail on October 2021, clarifying that the same conditions as imposed by the Magistrate Court could continue.Badheka added that the Special PMLA Court had permitted Kapoor to travel to USA for a few days in April and May this year.Badheka submitted that even though the accused was not presently in jail, she was in the custody of the court with stringent conditions imposed on her..Venegaonkar pointed out that even with leave granted by the Court to the applicant to approach for permission to travel, circumstances had to be looked into before granting permission. The Court did not agree with the agency’s submission.“The purpose is to stop an accused fleeing from the country without due process of law. But here there are bail conditions. They (agencies) cannot be a super power and go above the law” the Court said.The Court added that the agency could clear the stand on the status of the LOC, as in any case, the applicant was required to apply for permission to travel abroad.“The conditions throughout is that the accused shall not leave the country without the permission of the Court. Let them file before the Special Court. You oppose that application seeking permission, why are you troubling us and wasting judicial time”, the Bench emphasized..Badheka was assisted by Advocates Aditya Mithe and Siya Chaudhary.