LOOK OUT CIRCULARS & ITS PROCEDURAL ASPECTS

A Look-Out Circular ("LOC") is a coercive measure aimed at making a person surrender to the investigating agency or court of law. LOC is issued to make sure that an individual who is absconding or wanted by law enforcement agencies is restricted to leave the country. It is usually used at immigration checkpoints at international airports and seaports by the immigration branch. LOC is issued mainly by authorised government officials and courts for a specified cause and reason, without which a person cannot be restricted to travel. In certain cases, the police can approach a court asking for the restriction of a person’s movement outside the country, when that person is a suspect and there is an apprehension that they may not join the investigation at a later stage.

The Ministry of Home Affairs issued the first guidelines for issuing LOCs in 1979. Even though the concept of LOCs was introduced in the year 1979, the practice of issuance of the LOCs has flourished in the recent past.

WHAT IS THE PROCEDURE FOR ISSUANCE OF LOC?

Under section 10A of the Passports Act, 1967, the passport or travel documents can be suspended in certain cases by the central government "in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public". The departure of a person can be prevented by an immigration authority on receiving intimation from the designated authority or central government.

An LOC against a person is opened by the Bureau of Immigration [“BoI”] after receiving a request from the competent authority, who are senior officers in the central government or law enforcement agencies. A district magistrate or a superintendent of the police can also get an LOC issued. The criminal courts can also order issuance of LOC. The legal liability of the action taken by immigration authorities in pursuance of the LOC rests with the originating agency, as per the guidelines of the central government.

The Karnataka High Court on the case of Harshavardhana Rao v. Union of India [W.P. [Crl] 12185 of 2022] has held that no notice ought to be issued to the subject of the LOC prior to its issuance. Though, a copy of the LOC, will have to be furnished to the subject at the time of its execution by the BoI while stopping them from leaving the country. Till subsistence of the LOC, the immigration authorities are bound to stop the persons against whom it has been issued. "The LOC opened shall remain in force until and unless a deletion request is received by BoI from the Originator Itself," as per the central government guidelines. The Originator is required keep reviewing the LOCs on quarterly and annual basis and thereafter immediately submit any proposal for deletion to the BoI.

CIRCUMSTANCES THAT URGE THE ISSUANCE OF LOC

The Allahabad High Court in G.S.C. Rao v. State of U.P. [2018 SCC OnLine All 5991] 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 the judgment of Sumer Singh Salkan v. Director [2010 SCC OnLine Del 2699], where the Delhi High Court held that the respondent could not have issued a look out circular in the absence of any material fact and evidence with the respondent to conclude that the petitioner is deliberately evading arrest/trial. In this case the following questions arose for consideration:

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 is the remedy available to the person against whom such look out circular has been opened? What is the role of the court concerned when such a case is brought before it and under what circumstances, the subordinate courts can intervene?

Those questions were answered by the court as follows:

1.  Recourse to LOC can be taken by investigating agency in cognizable offences under the Indian Penal Code (“IPC”) or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite non-bailable warrants (NBWs) and other coercive measures and there was a likelihood of the accused leaving the country to evade trial/arrest.

2.  The person against whom LOC is issued must join the investigation by appearing before IO or sould surrender before the court concerned or should satisfy the court that LOC was wrongly issued against him. He may also approach the officer who ordered the issuance of LOC and explain that LOC was wrongly issued against him. LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where the case is pending or has jurisdiction over the police station concerned on an application by the person concerned.

The Delhi High Court in this case directed the Ministry of Home Affairs [“MHA"] to formulate guidelines for the same since it is strict in nature and misusing such stringent laws can be proved to be draconian law. Therefore, as per the existing MHA guidelines and court directions from time to time, a look out circular can be issued in respect of a person who,

1.    is accused of a cognizable offence and is evading arrest; or

2.    is accused of a cognizable offence and is not appearing in a court for trial; or

3.    is accused of a cognizable offence and is likely to abscond or leave the country to avoid his arrest; or

4.    is an anti-national.

DOES ISSUANCE OF LOOK OUT CIRCULAR VIOLATES ARTICLES 19 AND 21 OF THE INDIAN CONSTITUTION?

It is an established law that Articles 19 and 21 of the Indian Constitution are an integral part of the right to free movement but questioning the violation needs to answer whether there was a violation of the due procedure established by law. For instance, if the investigation agency has failed to establish any evidence against the accused therefore the procedure laid down by the law of the country includes providing the right to be heard and every other procedural law then it would defeat the purpose of Articles 19 and 21 and could violate the right to free movement.

The right to travel abroad has been held to be a fundamental right protected under Article 21 of the Constitution of India. The Supreme Court in Satwant Singh Sawhney v. D. Ramarathnam [AIR 1967 SC 1836], after analysing various English judgments as well as judgments passed by the various High Courts in India concluded that under Article 21 of the Constitution of India, no person can be deprived of his right to travel except according to procedure established by law.

The Supreme Court in Maneka Gandhi v. Union of India [[1978] 1 SCC 248] held that the right to travel abroad as a fundamental right guaranteed under Article 21 of the Constitution of India, vide para 35 of the said case the Supreme Court held as follows:

"35. …the point of the matter is that though the right to go abroad is not a fundamental right, the denial of the right to go abroad may, in truth and in effect, restrict freedom of speech and expression or freedom to carry on a profession so as to contravene Article 19(1)(a) or Article 19(1)(g). In such a case, refusal or impounding of passport would be invalid unless it is justified under Article 19(2) or Article 19(6), as the case may be. Now, passport can be impounded under Section 10(3)(c) if the Passport Authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public. The first three categories are the same as those in Article 19(2) and each of them, though separately mentioned, is a species within the broad genus of “interests of the general public”."

Also, in the judgment of Satwant Singh Sawhney v. D. Ramarathnam [AIR 1967 SC 1836], the Supreme Court held that the right to travel abroad was a part of personal liberty under Article 21 of the Constitution; in which Court relied on CBI v. Asif Khader [2021 SCC OnLine Kar 15228], it was submitted that there are prescribed guidelines for issuance of LOC and the respondent's case does not come under any of the requirements of the guidelines and therefore, there is no justification on the part of the petitioner in issuing a LOC which has the effect of restricting the movement of the respondent and thereby violating the right guaranteed to the respondent under Article 21 of the Constitution.

On the other side trail of judgments that favour the issuance of LOC, the Supreme Court while upholding the Madhya Pradesh Police Regulations in Gobind v. State of M.P. [[1975] 2 SCC 148] had struck a note of caution and vide para 28, observed as follows:

"28. The right to privacy, in any event, will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterise as a fundamental right, we do not think that the right is absolute."

CONCLUSION

The matter pertaining to restriction on travel of persons being involved in ligation has always been chaotic and debatable. On one side right to liberty and freedom of expression and on the other side public sovereignty and safety gets involved in these cases.  It can be said that after all, it all depends on judicial pronouncement since considering the factual scenario on case-to-case basis, a judicial mind should be applied to whether the procedure established by law has been followed or not in matters pertaining to LOCs.