"Can't Shut Eyes To Petitioner's Right": Tripura HC Quashes LOCs Against Journalist Accused Of Publishing Defamatory News Against Tripura CM

The Bench of Justice S. Talapatra observed,

"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 matter in brief

The Petitioner, NRI-Editor of a news portal named Tripura Infoway.com (registered in U.S.A) filed a plea challenged the lookout circular dated 28^th January 2020 by Bureau of Immigration and communication dated 30^th September 2018 written by the Superintendent of Police, West Tripura to the Regional Passport Officer at Kolkata to impound/cancel the passport of the petitioner.

He alleged that his news portal has become the target, for fearlessly exposing the cause of common people and that his family members were being targeted, threatened, and intimidated.

Against the petitioner, cognizance under Section 500 of the IPC has been taken by the Sessions Judge, West Tripura, Agartala for alleged streaming of false content in his news portal.

Significantly, Cognizance has been taken by the Court in three different defamation suits as well, filed against him (one by sitting CM of Tripura).

As alleged by the Petitioner, all the criminal cases had been filed by different persons in power for silencing his news portal for exposing the truth in the interest of the common people.

It was also stated that there had been a request from the Superintendent of Police that his passport and visa be canceled. The petitioner was searched in his parent's residence on perception or information that he was staying there. Thereafter, a lookout circular had been issued against him.

Lastly, it was argued that the attempt to get his passport impounded cannot get any support from the law as provided by Passport Act, 1967 as no court has ever issued an order for impounding the passport or canceling it.

The petitioner categorically asserted that there was no valid reason at all to issue LOC against him and that the action of the police as such had been designed to restrict his visit to India.

Respondents' submissions

According to the respondents, the petitioner's case fell under Section 10(3)(e) and Section 10(3)(h) of the Passport Act. It was also argued that since the petitioner was defying the notices under Section 41A of the Cr.P.C., the said step was taken.

It was stated that the petitioner had been deliberately evading arrest or not appearing in the trial court despite issuance of non-bailable warrant and adopting other coercive measures, hence, it was prayed that the LOC, as issued by the Ministry of Home Affairs against the petitioner not be recalled.

[NOTE: the Allahabad High Court had held in the case of G.S.C. Rao versus State of U.P. and two Others [Criminal Revision No.3333 of 2018] 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.]

Court's observations

At the outset, the Court noted that 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 because of COVID-19.

Further, while noting that against the petitioner, as of now, no warrant is pending, the Court remarked,

"The reason as assigned in the lookout notice circular 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 the USA did not attempt to leave the territory of India in order to evade the arrest."

Further, noting that since the petitioner had undertaken before the 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 were directed to withdraw the lookout notice within 24 hours.

Importantly, the Court held that no case had been made out by respondents No.1 and 2 in terms of Section 10(3) of the Passport Act to impound his passport and that, Passport Act does not authorize the Indian Passport Authority to cancel US Passport.

Ruling that his inability to appear before the police cannot be termed as deliberate, the Court said that no warrant of arrest, issued by any court against the petitioner is pending and that Section 41A Cr.P.C notice was issued to him at a time when it was physically impossible for him to travel to India because of COVID-19.

Having regard to all these aspects, the Court quashed the lookout circulars as issued against the petitioner noting that,

"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."

The Court further directed that on arrival at Agartala, the petitioner shall give information to the investigating agency and respond to the summons issued by the criminal courts or comply the order of the courts.

Case title - Soumen Sarkar v. State of Tripura and others [WP(C)No.200 of 2020]

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