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TMI Blog2021 (3) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 04/2017. 3. Sri Gautam Das, a leader of the ruling party at the relevant point of time filed a complaint against the petitioner for streaming a news item on 22.10.2017 in his portal. Cognizance was taken under Section 500 of the IPC by the order dated 07.12.2017 in C.R.373/2017 by the Chief Judicial Magistrate, West Tripura. Another complaint being CR01 of 2018 was launched by Sri Saheed Choudhury, the then Minister, Department of Youth Affairs and Sports, Government of Tripura alleging defamation and cognizance was taken by the Sessions Judge on 05.04.2018 under Section 500 of the IPC. Again, another complaint was lodged by Sri Biplab Kumar Deb, Chief Minister of Tripura through the Public Prosecutor, District-West Tripura taking aid of section 199(2) of the Cr.P.C. By the order dated 04.05.2019 cognizance has been taken against the petitioner under Section 500 of the IPC. One "false‟ compliant had been to the police station on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 passport has failed to comply with the notice requiring him to deliver of the same on requisition. 6. The Bureau of Immigration headquarters issued lookout circular (LOC) against LOC suspect No.1847354 i.e. the petitioner. Bureau of the Immigration headquarters, by their communication dated 28.01.2020, informed the Superintendent of Police, West Tripura that one regular LOC in respect of the petitioner has been extended till 07.01.2020. The petitioner has categorically asserted that there had no valid reason at all to issue LOC against the petitioner. The action of the police as such has been designed to restrict the petitioner‟s visit to India. In para-29, 30 and 31 the petitioner has asserted as under : "29. That, the Petitioner is ready to join the investigation and face the criminal cases maliciously lodged against him. The Petitioner is not absconding. Though LOC is nowhere defined in the Cr.P.C., but in common parlance, LO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent 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 of Immigration is only the custodian of LOCs at immigration check post (ICPs) at the behest of originating agency. Further, the legal action taken by immigration authorities in pursuance of LOC rest with the originating agency." They have categorically stated that Bureau of Immigration(BOI) has no objection if LOC is recalled or withdrawn by the originator, the Superintendent of Police, West Tripura District or the concerned court directs for the same. 10. The respondents No.1, 2 3 by filing the reply has contended that lookout circular has been issued for the interest of investigation in the following cases : "1. East Agartala PS case No.2018EAGI85, dated 28/09/2018. U/s 501(b) IPC. 2. East Agartala PS case No.2018EAG204, dated 29/08/2018. U/s 384/511 IPC. 3. East Agartala PS case No.2018EAG218, dated 22/01/2018. U/s 468/469/501/120(B)IPC. 4. West Agartala PS case No.2019EAG084, dated 27/04 2019. U/s 120B/501/509/384/506 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 being in force or if an order prohibiting the departure from India or the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that warrant or summons has been so issued or an order has been so made….." The respondents No.1, 2 and 3 has stated that LOC has been issued against the petitioner in the interest of investigation. 14. Finally, the respondents No.1, 2 and 3 have contended that no case has been made out for interference under Article 226 of the Constitution of India. Even though, the communication made in the format as referred in the letter dated 18.11.2018 [Annexure-A to the reply filed by the respondents No.1, 2 and 3] is not available with the reply but from the communication dated 15.11.2019 it appears that since the petitioner is involved in four criminal cases under W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 statutory bodies however have not been vested with powers of a criminal court and do not have powers to enforce criminal law. The MHA memorandum has clearly laid down that the request for issuance of LOCs cannot emanate from statutory bodies like NCW. If at all, such bodies should bring the necessary facts to the notice of the law enforcing agencies like the police which will then make the request for the issuance of the LOC upon an assessment of the situation as narrated in format and strictly in terms of procedure outlined for the purpose. 19. Mr. Roy Barman, learned counsel has referred to the special petition [I.A.01 of 2021] where the petitioner has brought to the notice of this court that his father namely Gopal Chandra Sarkar [aged 81 years] had been admitted in the ICU of Neurology Department at GB pant hospital on March 2, 2021. A certificate of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjudiced, 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 been made for the last 7 years despite knowing whereabouts of the petitioner. I, therefore, consider it a fit case for quashing the RCN issued against the petitioner at the behest of Delhi Police. The RCN, is therefore, hereby quashed." 22. It has been further observed in that decision that if the petitioner gives an undertaking before the court for his appearance on a particular date through his counsel, lookout circular issued against the petitioner shall be withdrawn within 24 hours of giving undertaking by the petitioner. The petitioner of this case has already filed such undertaking. In Sumer Singh Salkan(supra) Delhi High Court has framed four questions which are as under : "1. What are the categories of cases in which the investigating agency can seek recourse of Look-out-Circular and under what circumstances? 2. What procedure is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 and such a circular can be issued in larger public interest. But it has been also observed that if the accused is within the territory of India, even though he has been holding a foreign passport, his movement would be put under surveillance on considering his antecedent. No records have been produced by the state to demonstrate that the petitioner has any criminal antecedent. Mere allegation cannot form antecedent. 25. While considering the case in hand, we cannot slight the plea of the petitioner that for corona there was a global lockdown bringing the movement of traffic in a grinding halt. Even if, the petitioner intended to come to India for making his appearance in the court or before the police, that was not simply possible. Further, against the petitioner, as of now, no warrant is pending. This fact has not been disputed by Mr. Kar Bhowmik, lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot 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, 2 and 3, the case of the petitioner falls under Section 10(3)(e) of the Passport Act cannot be sustained inasmuch as the circumstance as stated in clause-(e) is that in respect of commission of the offence inasmuch as the authority cannot be extended unless the travel document including a passport had been withheld by the criminal court in India or the holder of the passport has committed any offence. The holder of the passport in this clause should mean holder of the passport of this country. Otherwise, there will be requirement of the order of the criminal court directing the holder of the passport issued by a foreign country to deposit his passport so that in some circumstances he cannot evade the process of the court. So far the clause-10(3)(h) is concerned, this will not apply in the case of the petitioner as there is no warrant of arrest or summon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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