2021 (3) TMI 1405 - HC - Indian Laws

Court quashes LOC, prohibits passport impoundment without court order. Petitioner must inform agency on arrival.

Sri Soumen Sarkar, son of Sri Gopal Chandra Sarkar, Versus, The State of Tripura, The Director General of Police, The Superintendent of Police, The Union of India, The Commissioner (Immigration), 6. The Regional Passport Officer

The court quashed the lookout circular (LOC) issued against the petitioner and directed the investigating agency not to impound the petitioner's passport ... Issuance of lookout circular - attempt to get the petitioner‟s passport impounded - assauging and harrassing the petitioner - allegation of streaming of false content in his news portal - HELD THAT:- Having perused the memorandum dated 31.08.2010 it has come to the forth that reasons for opening LOC have to be given quite categorically. The reason as assigned is pending investigations in four cases. But the police could not file the final report involving the petitioner over such a long time. In these circumstances, in the considered view of this court, the lookout notice circular could not have been issued against the petitioner inasmuch as the petitioner being a citizen of USA did not attempt to leave the territory of India in order to evade the arrest. It appears from the nature of allegations that it is not a case of extortion but an “attempt‟ which may not fall within the serious crime. Moreover, the respondents No.1 and 2 did not produce the case diary to support their case of serious fraud or commission. Since, the petitioner has undertaken before this court to inform the police the moment he would arrive at Agartala and considering his status [vice-President, American Bank], the respondents No.1, 2 and 3 are directed to withdraw the lookout notice within 24 hours from the hour of receiving a copy of this order. In the present case, no warrant of arrest issued by any court against the petitioner is pending and the petitioner is being represented by his engaged counsel. The notice under Section 41A of the Cr.P.C. was issued at a time when it was physically impossible for the petitioner to travel to India for contagion (Covid-19 lockdown). Hence, his inability to appear before the police cannot be termed as deliberate. So far the question of impounding of the passport is concerned, no case has been made out by the respondents No.1 and 2 in terms of Section 10(3) of the Passport Act. That apart, Passport Act does not authorize the Indian Passport Authority to cancel US Passport. This court cannot shut its eyes to the right of the petitioner. The action which curtails or takes away the personnel liberty has to be reasonable and proportionate and has to be considered not in the abstract or hypothetical considerations. The lookout circulars as issued against the petitioner stands quashed. As there is no contemplation of impounding of the passport by way of overstepping the authority, it is directed that without the order of the competent criminal court, the investigating agency shall not venture for taking action for impounding the passport of the petitioner as coercive measure - Petition allowed. Issues Involved:1. Legality of the lookout circular (LOC) issued against the petitioner.2. Alleged harassment and intimidation by police.3. Validity of requests to impound/cancel the petitioner’s passport.4. Petitioner’s compliance with investigation notices.5. Petitioner's right to travel and personal liberty.Detailed Analysis:1. Legality of the lookout circular (LOC):The petitioner challenged the LOC issued by the Bureau of Immigration against him, asserting it was unjustified and aimed at restricting his travel to India. The respondents justified the LOC by citing ongoing investigations in multiple criminal cases against the petitioner. The court found that the LOC was not supported by sufficient reasons, as the petitioner did not attempt to evade arrest or leave the country to avoid investigation. The court referenced the Delhi High Court's decision in Sumer Singh Salkan, which outlines the conditions under which an LOC can be issued, emphasizing that the petitioner was not absconding and had undertaken to join the investigation upon arrival in India. Consequently, the court directed the withdrawal of the LOC within 24 hours of the order.2. Alleged harassment and intimidation by police:The petitioner alleged that his parents were harassed by police, and he was intimidated due to his news portal's fearless reporting. The respondents denied these allegations, stating that the police actions were in the interest of justice. The court noted that the petitioner’s parents had previously approached the High Court for relief, and the police were directed to act considerately. The court found no substantial evidence to support the petitioner’s claims of harassment and intimidation.3. Validity of requests to impound/cancel the petitioner’s passport:The petitioner argued that the requests to impound his passport were illegal under Section 10(3) of the Passport Act, 1967. The respondents claimed that the petitioner's passport should be impounded due to pending criminal cases. The court observed that the Indian Passport Authority had no jurisdiction to cancel a passport issued by the Consulate General of India in New York. Furthermore, the court found that the conditions under Section 10(3)(e) and (h) of the Passport Act were not met, as there were no pending warrants or summons against the petitioner. The court held that the requests to impound the passport were without legal basis.4. Petitioner’s compliance with investigation notices:The respondents contended that the petitioner was evading investigation notices issued under Section 41A of the Cr.P.C. The petitioner countered that his inability to travel to India was due to the COVID-19 lockdown and not deliberate evasion. The court accepted the petitioner’s explanation and noted his willingness to cooperate with the investigation upon his arrival in India. The court emphasized that the petitioner’s liberty should not be curtailed without just cause.5. Petitioner's right to travel and personal liberty:The court underscored the importance of personal liberty and the right to travel, stating that any action curtailing these rights must be reasonable and proportionate. The court found that the LOC and attempts to impound the passport were disproportionate and not justified by the circumstances. The court directed that the petitioner be allowed to travel freely and that any further actions against his passport must be ordered by a competent criminal court.Conclusion:The court quashed the LOC issued against the petitioner and directed the investigating agency not to impound the petitioner’s passport without a court order. The petitioner was instructed to inform the investigating agency upon his arrival in Agartala and comply with any summons or court orders. The writ petition was allowed, and no costs were ordered.