2025 (5) TMI 565 - HC - Indian Laws

Permission to NRI residing abroad to participate in an ongoing criminal investigation through audio-video electronic means - issuance of Non-Bailable Warrant (NBW) on request to cooperate via video conferencing - HELD THAT - The record reveals that upon becoming aware in the UAE that his passport was being withheld at the behest of the EOW the petitioner promptly addressed a letter dated 13 February 2025 to the EOW. In this letter the petitioner voluntarily offered to cooperate with the ongoing investigation and expressed his readiness to have his statement recorded through audio-video electronic means. Despite this the EOW did not respond to the petitioner s communication. In the absence of any reply the petitioner was constrained to file an application (Exh.55) before the learned Special MPID Court wherein he sought permission to renew his passport and requested leave to participate in the investigation through audio-video electronic means. However the said application came to be rejected by order dated 9 April 2025. The petitioner now seeks the indulgence of this Court to permit him to appear before the investigating officer via audio video electronic means and to cooperate fully with the investigation. It is pertinent to note that the statutory framework under the CrPC particularly the proviso to Section 161 as well as the corresponding provisions under Section 180 of the BNSS expressly recognises and facilitates the conduct of trial related procedures and examination of witnesses through audio video electronic means. The petitioner shall appear before the investigating officer through audio-video electronic means on 7 May 2025 between 2 00 p.m. and 4 00 p.m. for the purpose of recording his statement in connection with the investigation. Conclusion - The Court allowed the petitioner s prayer to appear before the investigating officer through video conferencing thereby facilitating his cooperation with the investigation while upholding the rule of law and procedural fairness. Petition allowed.

Summary

The core legal questions considered by the Court include: (1) Whether the petitioner, an NRI residing abroad, can be permitted to participate in an ongoing criminal investigation through audio-video electronic means; (2) Whether the withholding of the petitioner's passport renewal by the Regional Passport Office on the direction of the Enforcement Wing of the Mumbai Police (EOW) was lawful and in accordance with due process; (3) The validity of the Special MPID Court's order rejecting the petitioner's application for permission to join the investigation remotely; and (4) The implications of a Non-Bailable Warrant (NBW) issued against the petitioner on his request to cooperate via video conferencing.

Regarding the petitioner's request to appear via video conferencing, the Court examined the relevant statutory provisions, notably Section 161 of the Code of Criminal Procedure (CrPC) and Section 180 of the Bombay Police Act (BNSS), which explicitly permit recording statements through audio-video electronic means during investigations. The Court emphasized that these provisions facilitate modern investigative procedures and accommodate cooperation from individuals who are unable to be physically present. The petitioner's bona fide willingness to cooperate, demonstrated by his voluntary communications to the EOW and repeated requests to participate remotely, was a significant factual finding supporting his request. The Court noted that the petitioner had not absconded or obstructed the investigation and had made multiple attempts to engage with the authorities, which remained unanswered.

On the issue of withholding the petitioner's passport renewal, the Court scrutinized the procedural requirements under the Passports Act, 1967, specifically Section 10(3), which vests the authority to impound or withhold passports exclusively with the passport authority and mandates adherence to due process including notice and an opportunity for hearing. The petitioner's counsel argued that the EOW's direction to withhold passport renewal without issuing any summons or initiating formal proceedings was arbitrary and violated principles of natural justice. The Court recognized that while police may seize property under Section 102 of the CrPC during investigations, the impounding of passports is governed by a separate statutory regime requiring procedural safeguards. The Court found merit in the petitioner's contention that the withholding of his passport renewal was disproportionate and lacked lawful basis in the absence of due process.

The Court also analyzed the Special MPID Court's order dismissing the petitioner's application to participate via video conferencing, which was premised solely on the existence of a pending NBW against the petitioner. The Court observed that the order was summary and failed to consider the petitioner's demonstrated willingness to cooperate through permissible means. The Court held that the mere issuance of an NBW does not ipso facto preclude the possibility of remote participation, especially when the petitioner is outside the jurisdiction and unable to physically appear. The Court rejected the argument advanced by the State that remote participation would undermine the seriousness of the charges, underscoring that cooperation through audio-video means is recognized by law and does not diminish the investigatory process.

Applying the law to the facts, the Court directed that the petitioner be permitted to appear before the investigating officer via audio-video electronic means on a specified date and time for recording his statement. This direction balanced the interests of the investigation with the petitioner's right to cooperate and the practical constraints posed by his residence abroad and the withholding of his passport renewal. The Court's order effectively remedied the procedural lacunae and ensured that the petitioner's cooperation could be secured without infringing statutory mandates or principles of fairness.

The Court's treatment of competing arguments was thorough. It acknowledged the State's concerns regarding the NBW and the need for the petitioner's presence but found these insufficient to deny the petitioner a reasonable alternative mode of cooperation. The Court emphasized statutory provisions facilitating electronic recording of statements and the petitioner's proactive approach, contrasting it with the EOW's inaction and lack of communication. The Court's reasoning highlighted the necessity of balancing investigative imperatives with individual rights and procedural fairness.

Significant holdings of the Court include the following:

"The statutory framework under the CrPC, particularly the proviso to Section 161, as well as the corresponding provisions under Section 180 of the BNSS, expressly recognises and facilitates the conduct of trial related procedures and examination of witnesses through audio video electronic means."

"The authority to impound a passport is exclusively vested in the competent passport authority under Section 10(3) of the Passports Act, 1967. This statutory provision mandates adherence to due process, including the issuance of notice and providing an opportunity of hearing to the passport holder before any such adverse action is taken."

"The impugned order dated 9 April 2025 passed by the Special MPID Court ... is exfacie perverse, devoid of merits and vitiated by a complete non-application of judicial mind."

"The petitioner shall appear before the investigating officer through audio-video electronic means ... for the purpose of recording his statement in connection with the investigation."

Core principles established include the recognition that remote participation in criminal investigations via audio-video electronic means is legally permissible and consistent with procedural law; that withholding or impounding of passports must comply strictly with statutory due process; and that the existence of an NBW does not automatically bar alternative modes of cooperation, especially when the accused is abroad and willing to cooperate.

In conclusion, the Court allowed the petitioner's prayer to appear before the investigating officer through video conferencing, thereby facilitating his cooperation with the investigation while upholding the rule of law and procedural fairness. The Court's directions effectively balanced the rights of the individual with the needs of the investigation, setting a precedent for accommodating technological means in criminal procedure and reinforcing the requirement of due process in passport-related actions.