TaxTMI 
TaxTMI 
2021 (3) TMI 1405
X X X X Extracts X X X X
X X X X Extracts X X X X
....Infoway.com which is registered in U.S.A. The petitioner also holds the position of editor of the said news portal. The said news portal has become the target, according to the petitioner, for fearlessly exposing the cause of common people. The parents of the petitioner residing permanently in Tripura. His father is an octogenarian whereas his mother is a septuagenarian. They have become subjected to harassment by the police. He and his parents had been threatened and intimidated by the police personnel. Smti. Neuti Sarkar, the mother of the petitioner had approached this High Court by filing a writ petition being WP(C)No.52/2019 wherein the Superintendent of Police, West Tripura had been directed to assuage the petitioner‟s parents and visit their residence after giving notice for appointment in their convenient time considering their age, if the police were in need of any information from them [see the order dated 17.01.2019 delivered in WP(C)No.52/2019]. Against the petitioner, cognizance under Section 500 of the IPC was taken by the Sessions Judge, West Tripura, Agartala for alleged streaming of false content in his news portal. The said case had been registered as CR 04/....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... had started showing their muscle in order to harass the family of the petitioner. One survey has been carried out by Mr. Bijay Methew Associate Professor of Information System, Rider University, New Jersy and it has been assessed that the petitioner‟s portal carries high quality news and information. His portal specializes in content, related to the North Eastern State of India with additional focus on National Indian news. Its investigative content, according to Mr. Methew, is clear in its conclusion and most part does not exceed advance evidence. 5. The petitioner has quite robustly asserted that attempt to get the petitioner‟s passport impounded cannot get any support from law as provided by Passport Act, 1967. Section 10(3) provides that the passport authority may impound or cause to impound or revoke a passport or travel document, if the passport authority is satisfied that the holder of the passport is wrongfully possessing the same. Such action can be resorted if the passport or travel document was obtained by suppression of material information or on the basis of wrong information provided by holder of the passport or travel document or the holder of the passp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mpliance of the provisions of Section 10(3) of the Passport Act, 1987 is grossly illegal. The respondents have become hand in glove to silence the voice of his fearless news portal which has been continually exposing the people in power for advancing the cause of the common people. 8. In reply to the averments of the petitioner, the respondents No.4 and 6 i.e. Union of India and Regional Passport Officer by filing their reply have clearly stated that when the passport No.Z1819268 was issued in favour of the petitioner, it was issued by the Consulate General of India, New York. On 28.07.2008. The said passport was suspended on 20.03.2015 after recording the remark "acquired U.S. citizenship." They have not disclosed that any action is in contemplation against the petitioner. However, they have admitted that the request of the police authority has been forwarded to the Assistant Consulate Office at New York on 05.08.2019. 9. The respondent No.5 has categorically stated that as per MHGA Guidelines dated 27.10.2010 (para-8/F)"the legal liability of the action taken by immigration authorities in pursuance of LOC rest with originating agency and not with Bureau of Immigration. Bureau o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n those cases. 13. The respondents have admitted that despite the complaint filed against two police officers, the petitioner‟s complaint has not been registered [see para-23]. According to the respondents, communication made to the U.S. Company was not for defaming the petitioner but in the interest of investigation but there is no explanation in respect of referring the petitioner as "criminal" in their letter. According to those respondents, the petitioner‟s case falls under Section 10(3)(e) and Section 10(3)(h) of the Passport Act. Those provisions are reproduced hereunder for purpose of reference : 10(3) the passport authority may impound or cause to be impounded or revoke a passport or travel document--- ................... (e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India ; ............................ (h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 17. Mr. Roy Barman, learned counsel appearing for the petitioner has further submitted that there is no ground for issuing LOC against the petitioner. The ground that has been assigned is that against him three criminal cases are being investigated. The respondent No.5 has without any inhibition stated that BOI will have no objection if the LOC against the petitioner is withdrawn. 18. Mr. S. Kar Bhowmik, learned senior counsel appearing for the respondents No.1, 2 and 3 have submitted that since the petitioner was defying the notices under Section 41A of the Cr.P.C., the said step was taken. Having referred to the office memorandum dated 27.10.2010 [Annexure-15 to the writ petition], it has been contended that following the direction given by the High court of Delhi in Bikram Sharma versus Union of India it has been observed that there are large number of statutory bodies in the level of the centre and states which perform judicial functions and are vested with, for purpose of conducting enquiries upon receiving complaints, the powers of a civil court. These include the National Human Rights Commission (NHRC), NCW, National Commission for Protection of Child Rights. Those statut....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r. This allegation of the petitioner finds support from the fact that the punishment stated by the police to Interpol in respect of the offences committed has been deliberately given as 10 years while the prescribed punishment is maximum 3 years imprisonment. The petitioner‟s description of being "violent and dangerous‟ also has been added malafidly, with ulterior motive, in view of the fact that allegations against petitioner were of only of emotional torture. Offence of kidnapping was given as the reasons for issuance of RCN, which on the representation of petitioner was removed. It is apparent that the LOC & RCN were issued for extraneous reasons by an officer who was not authorized. The petitioner has also highlighted the difference in statements made by witnesses on different occasions. Since the matter pertaining to these offences is subjudiced, it will not be appropriate to comment on this aspect but suffice it to say that the action against the petitioner of issuing RCN was uncalled for in view of the fact that neither offence, for which the petitioner is facing trial in India, is an extraditable offence, nor any request for extradition of the petitioner has bee....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 4. LOC is a coercive measure to make a person surrender to the investigating agency or Court of law. The subordinate Courts‟ jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs." 23. Mr. S. Kar Bhowmik, learned senior counsel appearing for the respondents No.1, 2 and 3 has submitted that the petitioner has been deliberately evading arrest or not appearing in the trial court despite issuance of non-bailable warrant and adopting other coercive measures. Hence, the LOC as issued by Ministry of Home Affairs against the petitioner at the request of the respondent No.3 shall not be recalled. 24. Mr. Kar Bhowmik, learned senior counsel has referred a Madras High Court decision in S. Sivasankaran versus Foreigner Regional Registration Officer (FRRO) [judgment dated 29.09.2020 in W.A.No.SR 49793 of 2020] where it has been observed that LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where the case is pending. In the said report, Madras High Court has opined that issuance of a lookout circular is an exercise of authority under the office memorandum dated 27.10.2010 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bad High Court in G.S.C. Rao versus State of U.P. and two Others [judgment dated 26.09.2018 delivered in Criminal Revision No.3333 of 2018] has held that such LOCs cannot be issued as a matter of course, but only when reasons exist where the accused deliberately evades arrest or does not appear in the trial court. In this circumstances, it was held in G.S.C. Rao(supra) that condition precedent for issuance of the LOC was absent and the same was held liable to be set aside. 29. 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. 30. As claimed by the respondents No.1,....