9911796707
TMI Blog2022 (8) TMI 1511X X X X Extracts X X X X X X X X Extracts X X X X ..... e it would be and the Bureau of Immigration would continue to stop every time he seeks to travel, till subsistence of LOC, as it has to be recalled or withdrawn by the originator, the State Police. It is thus a powerful tool at the hands of the State to direct Bureau of Immigration to stall the march of travel of a subject of LOC beyond the shores of the nation. The right to travel, which is a vested right of Article 21 of the Constitution of India, would be taken away by the act of issuance of LOC. Therefore, it is germane to notice the genesis and progress of LOC issued from time to time. The LOC has no specific legal definition. Statutory sanction for issuance of LOC can be traced to Section 10A and 10B of the Passports Act, 1967. It is this stand that is being taken by Government of India in all the constitutional courts where LOCs have been questioned. The object for issuance of LOC is to ensure that the subject of LOC becomes available for interrogation, trial or any inquiry - the contention of the learned counsel for the petitioner that a notice ought to be issued to the subject of the LOC prior to issuance of LOC deserves to be rejected. If the facts of the case are conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictional Police alleging that the petitioner has sexually abused his son which becomes a crime in Crime No. 145 of 2021 for offences punishable under Sections 376AB of the IPC and Section 3(a), 3(b), 5(m), 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short). Pursuant to said registration of crime, the petitioner was taken into custody and after about 2 months was enlarged on bail by an order of the competent Court in Criminal Miscellaneous No. 8707 of 2021. On 15-11-2021 a charge sheet is filed against the petitioner for the aforesaid offences, dropping offence under Section 376 and including offence under Section 377 of the IPC and Sections 4, 5(n), 5(p) and 6 of the POCSO Act. The petitioner in furtherance of his avocation wanted to travel abroad viz., Paris in discharge of his official duty and on the date of travel i.e., 29-05-2022 was stopped by the Immigration Authorities at the International Airport, Bangalore informing him that the 4th respondent had issued a LOC in his name concerning Crime No. 145 of 2021 which is now pending as Special C.C. No. 1874 of 2021 before the Additional City Civil Sessions Judge, Fast Track Sess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India is required to be noticed for a resolution of the lis. Before considering the issue, it is germane to notice the protagonist that would come about in the execution of LOC. LOC is issued by the Police or the Court in some circumstances. Therefore, they are referred as the originator. LOC is transmitted to the Bureau of Immigration to execute the said LOC and the person against whom LOC is issued is the subject of the LOC. Therefore, originator, originates LOC against the subject and transmits the same to the executant viz., Bureau of Immigration. This is the broad framework and how the LOCs are executed. The manner of execution as quoted hereinabove is not in dispute. Once LOC is issued, the Immigration Authorities are bound by the mandates of the said circular to stop the subject, from travelling beyond the shores of the nation for whatever purpose it would be and the Bureau of Immigration would continue to stop every time he seeks to travel, till subsistence of LOC, as it has to be recalled or withdrawn by the originator, the State Police. It is thus a powerful tool at the hands of the State to direct Bureau of Immigration to stall the march of travel of a subject of LOC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. (Emphasis supplied) In terms of paragraph-7(a) of the Official Memorandum recourse to LOC can be taken by the investigating agency in cognizable offences under the IPC or any other penal laws where the accused was deliberately evading arrest or not appearing before the trial Court despite issuance of non-bailable warrant and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest. The Investigating Officer who investigates into a crime would make a written request for issuance of LOC to the officer notified in the circular giving details and reasons for seeking LOC. The competent officer alone has the power to give directions for opening LOC by passing an order in that respect. The subject against whom the LOC is issued must join investigation by appearing before the investigating officer or should surrender before the Court concerned or to satisfy the Court that LOC was wrongly issued against him. LOC may be withdrawn by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Bureau/Bureau of Immigration (BOI); or (ix) Deputy Secretary of Research and Analysis Wing (R AW); or (x) An officer not below the level of Superintendent of Police in National Investigation Agency; or (xi) Assistant Director of Enforcement Directorate; or (xii) Protector of Emigrants in the office of the Protectorate of Emigrants or an officer not below the rank of Deputy Secretary to the Government of India; or (xiii) Designated officer of Interpol; or (xiv) An officer of Serious Fraud Investigation Office (SFIO), Ministry of Corporate Affairs not below the rank of Additional Director (in the rank of Director in the Government of India); or (xv) Chairman/Managing Directors/Chief Executive of all Public Sector Banks. (C) LOC can also be issued as per directions of any Criminal Court in India. In all such cases, request for opening of LOC shall be initiated by the local police or by any other Law Enforcement Agencies concerned so that all parameters for opening LOCs are available. (D) The name and designation of the officer signing the Proforma for requesting issuance of an LOC must invariably be mentioned without which the request for issuance of LOC would not be entertained. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review. The BOI should contact the LOC Originators through normal channels as well as through the online portal. In all cases where the person against whom LOC has been opened is no longer wanted by the Originating Agency or by Competent Court, the LOC deletion request must be conveyed in Bol immediately so that liberty of the individual is not jeopardized. (K) On many occasions, persons against whom LOCs are issued, obtain Orders regarding LOC deletion/quashing/suspension from Courts and approach ICPs for LOC deletion and seek their departure. Since ICPs have no means of verifying genuineness of the Court Order, in all such cases, orders for deletion/ quashing/suspension etc. of LOC, must be communicated to the Bol through the same Originator who requested for opening of LOC. Hon'ble Courts may be requested by the Law Enforcement Agency concerned to endorse/convey orders regarding LOC suspension/deletion/quashing etc. to the same law enforcement agency through which LOC was opened. (L) In exceptional cases, LOCs can be issued even in such cases, may not be covered by the guidelines above, whereby departure of a person from India may be declined at the request of any of the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enever the subject/likely match is detected a the ICP. The confirmation regarding the identity of the subject and action to be taken must be informed immediately to the ICP. (vii) The BOI would form a team to coordinate matters regarding the LOC. This team would contact the LOC issuing agencies to get the status of LOC updated. (viii) Each LOC Originating Agency referred in para 6 (B) above will appoint a Nodal officer as indicated in Annexure-I for coordination/updation of LOC status with BoI. The said team of BoI [as mentioned in para 6(N) (vii)] would remain in constant touch with this Nodal Officer. 7. It is requested that the consolidated guidelines as contained in this O.M. may be brought to the notice of all concerned for strict compliance. (Emphasis added) On a coalesce of the afore-quoted clauses of guidelines of the official memorandum of 2010 read with the one issued in 2021, LOC against a subject can be issued in cognizable offences where the accused is deliberately avoiding arrest and not appearing before the trial Court despite non-bailable warrant and other coercive measures being taken; despite all of which there was likelihood of the accused leaving the country to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronouncement of the Apex Court in the case of MANEKA GANDHI's, wherein the Hon'ble Apex Court (per Hon'ble Mr. Justices Bhagawati, Untwalia and Fazal Ali) have observed that procedure established by law under Article 21 must meet the requirement of Article 14 and it has been further held the right to travel abroad cannot be regarded as forming part of Articles 19(1) (a) or 19(1) (g), since such right is not guaranteed and such right cannot be inferred as a peripheral or concomitant right under Article 19(1). It is further held by the Apex Court to the following effect: 34. The right to go abroad cannot, therefore, be regarded as included in freedom of speech and expression guaranteed under Article 19(1) (a) on the theory of peripheral or concomitant right. This theory has been firmly rejected in the All India Bank Employees Association's case and we cannot countenance any attempt to revive it, as that would completely upset the scheme of Article 19(1) and to quote the words of Rajagopala Ayyanger, J., speaking on behalf of the Court in All India Bank Employees Association's case by a series of ever expending concentric, circles in the shape of rights concomitant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nard Schwartz, is contained in an article on 'Landmarks of Legal Liberty' by Justice William J. Brennan in which the learned Judge quoting from Yeat's play has this to say : In the service of the age old dream for recognition of the equal and inalienable rights of man, the 14th Amendment though 100 years old, can never be old. Like the poor old women in Yeat's play, Did you see an old woman going down the path? asked Bridget. I did not, replied Patrick, who had come into the house after the old woman left it, But I saw a young girl and she had the walk of a queen. Our Constitution too strides in its majesty but, may it be remembered, without the due process clause, I prefer to be content with a decision directly in point, All India Bank Employees' Association(4) In which this Court rejected the contention that the freedom to form associations or unions contained in article 19 (1) (c) carried with it the right that a workers' union could do all that was necessary to make that right effective, in order to achieve the purpose for which the union was formed. One right leading to another and that another to still other, and so on, was described in the abovementio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be considered as inherent in fair hearing. It has been further held to the following effect: 14. Now, as already pointed out, the doctrine of natural justice consists principally of two rules, namely, nemo debt esse judex propria cause: no one shall be a judge in his own cause, and audi alteram partem: no decision shall be given against a party without affording him a reasonable hearing. We are concerned here with the second rule and hence we shall confine ourselves only to a discussion of that rule. The learned Attorney General, appearing on behalf of the Union of India, fairly conceded that the audi alteram partem rule is a highly effective tool devised by the courts to enable a statutory authority to arrive at a just decision and it is calculated to act as a healthy check on abuse or misuse of power and hence its reach should not be narrowed and its applicability circum-scribed. He rightly did not plead for reconsideration of the historic advances made in the law as a result of the decisions of this Court and did not suggest that the Court should re-trace its steps. That would indeed have been a most startling argument coming from the Government of India and for the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... snomer because in these exclusionary cases the audi alteram partem rule is held inapplicable not by way of an exception to fair play in action , but because nothing unfair can be inferred by not affording an opportunity to present or meet a case. The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law 'lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation'. Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assport Authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, and opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case and plead for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports, Act, 1967 by necessary implication, as we hold it must be, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the LOC, not at any time prior to his being stopped from travelling abroad, but only at the time when he is stopped from travelling out the shores of this nation. The subject of the LOC would then become aware as to why his liberty to travel, which is a facet of fundamental right is being taken away. The contention of Government of India that a copy of the LOC need not be furnished to the subject at any time before getting apprehended is acceptable only upto the point that he gets apprehended. At the time when he is stopped and handed over to the originator, he is, in the considered view of this Court, entitled to know why his travel is being stopped with a copy of the LOC handed over to his hands. This becomes the only requirement of principles of natural justice in the cases that emanate from the LOC. 13. If the facts of the case are considered on the bedrock of what is considered hereinabove, it would depict that, the petitioner wants to travel on account of his official duty. The case registered against him no doubt is for offences punishable under the POCSO Act and the case is not stayed or quashed by any competent court of law, since the impugned crime is neither eclipsed nor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
