Ready Reckoner On The Law Of Look-Out Circulars: Challenges And Way Forward

Look-Out Circulars: To saucy doubts and fears!

The hum of the airport terminal is suddenly drowned out by a tightening in your chest. It’s supposed to be the start of a dream vacation, a special birthday trip with your family to Dubai, a celebration of togetherness, laughter, and memories to last a lifetime. But instead, here you are, standing in front of the immigration officer, heart pounding as they inform you that you cannot board your flight.

What about the business meeting you were set to attend in London. The most important meeting of your career, the one that could change everything, the opportunity that had cost you sleepless nights and relentless negotiations. Instead, you are not only detained but also arrested from the portals of the terminal gate.

One of the most used, or abused, weapon in the arsenal of any Investigating Agency in India is to request for opening a Look-Out Circular (“LOC”). LOC is an instrument that permits an Investigating Agency to detain or arrest an accused at airports in India, either before departure or upon arrival. In laymen terms, the Investigating Agency is expected to issue a request for opening an LOC to the Bureau of Immigration, Ministry of External Affairs, Union of India. The aforementioned request should be accompanied by reasons as to why LOC should be opened against the subject in the first place. Once the Bureau of Immigration opens a LOC, the accused is first detained at the airport and the concerned Investigating Agency is intimated about his detention. Subsequently, the Investigating Agency concerned may arrest the accused from the subject airport.

The manner and mode of issuance of LOC is governed by the dint of Office Memorandum (“OM”) issued by Ministry of Home Affairs, Union of India. The very first OM was issued in the year 2000 whereas the latest was issued on 22.02.2021. The Investigating Agency requesting for issuance of LOC is referred to as an “Originator”. It is rather germane to mention that a LOC has far reaching legal and constitutional implications. The history of LOC cannot be traced back to any statute but hinges upon executive action in the form of OMs. The moot question here is whether an investigative tool that has the potential to violate constitutional rights should survive without substantive legislation which is reflective of the collective will of the people? The Originator is not required to inform the accused about the LOC to begin which remains a constant source of frustration and public odium for the subject of the LOC.

Why and when should LOC be opened? So quick bright things come to confusion!

The underlying intent of a LOC is to secure the attendance of the accused for investigation and/or trial. However, prevalent misuse of this specious “fishing net” at the behest of the Originator, has reduced this instrument of investigation into an apparatus of embarrassment. The Hon’ble High Court of Delhi, in the celebrated ruling of Sumer Singh Salkan v. Assistant Director and Ors¹. held that recourse to LOC can only be taken by the Investigating Agency in cognizable cases where the accused was deliberately evading arrest or trial. The Hon’ble Court, in its infinite wisdom, also ruled that issuance of LOC is a “coercive” measure.

In Showik Indrajit Chakraborty v. CBI and Ors², the Hon’ble High Court of Bombay addressed the impact of a Look Out Circular (LOC) on the right to travel abroad under Article 21 of the Constitution of India. The Court, aligning with the Delhi High Court, held that an LOC can be issued when there is evidence that the accused is attempting to evade arrest or has failed to appear before the trial court.

A cursory study of judicial literature on issuance of LOC indicates that an Originator cannot request for the same at the drop of a hat or on whims and fancies. The reasoning advanced by the Originator is documented and amenable to the rigors of judicial scrutiny. Mere registration of First Information Report or initiation of preliminary enquiry cannot be a ground for issuance of LOC. In the case of Deept Sarup Aggarwal v. Union of India</em³, the Hon’ble High Court of Delhi quashed the impugned LOC after observing that the Petitioner had co-operated with the investigation, and it was nobody’s case that the Petitioner was on flight risk.

Right to Information: Something is rotten in the State of Denmark!

An informed citizenry is a backbone of vibrant democracy. Right to information is not only delicately placed in the Constitution of India, 1950 but also finds honorable mention in fundamental statues that serve as a guiding star in the universe of criminal jurisprudence. The question of whether information regarding issuance of LOC be supplied to subject of such LOC begs judicial intervention. In the event such information was to be supplied to the subject of LOC at the earliest opportunity, he shall refrain from undertaking foreign travel and save money on flight tickets, hotel bookings, etc. Even if financial implications were to be ignored, the sheer embarrassment of being singled out at the airport by immigration authorities strikes at the very heart of the right to live a life with dignity.

The Hon’ble High Court of Punjab and Haryana read an additional requirement into the OM dated 21.02.2021 wherein the Hon’ble Court directed that a copy of the LOC, reasons for issuance of LOC and a post decision hearing should be supplied to the subject of the LOC⁴. However, the Hon’ble Supreme Court of India has stayed the aforementioned direction passed by the Hon’ble High Court of Punjab and Haryana⁵. The matter pending adjudication before the Hon’ble Supreme Court of India.

Very recently, the Hon’ble High Court of Rajasthan has published guidelines for issuance and continuation of LOCs⁶. However, the said guidelines do not feature the right of the subject of the LOC to be informed about issuance of such LOC. It is pertinent to mention that a mere intimation devoid of reasons for issuance of LOC shall serve the purpose as far as right to information is concerned.

Remedies and Way Forward: I shall challenge you to a battle of wits!

In situations where LOC is issued, the aggrieved party has several avenues for addressing the issue and seeking redress. If confronted with an LOC, the individual may initially choose to write directly to the Investigating Officer, requesting that the LOC be deleted. The Investigating Agency, recognizing the potential harm and undue restriction on an individual’s right to travel, must periodically review the status of all LOCs to ensure that they are not unnecessarily extended once their purpose has been fulfilled. If the investigation or judicial process no longer requires the LOC, the Agency should issue a formal deletion request to the Bureau of Immigration.

Moreover, the aggrieved party has the right to file a formal application for the deletion of the LOC before the trial court concerned. It is trite law that the jurisdiction to either confirm or cancel an LOC is commensurate to confirming or cancelling non-bailable warrants. This principle emphasizes that judicial oversight is crucial in ensuring that such measures are not misused, and that the rights of the accused are not violated by arbitrary or excessive restrictions.

Additionally, the aggrieved party may explore the option of filing a writ petition before the High Court, seeking to have the LOC quashed. The writ petition, typically under Article 226 of the Constitution of India, 1950. In such cases, the Hon’ble High Court would examine whether the LOC was issued in accordance with the law and whether it unjustly impedes the individual’s liberty.

The Investigating Agency, in turn, has a responsibility to ensure transparency and fairness throughout the process. Upon issuing an LOC, the Agency must promptly inform the subject, ensuring that the individual is fully aware of the restriction placed upon them. Furthermore, the Agency is obligated to periodically assess the necessity of each LOC. If it is no longer needed for the investigation or trial, a request for deletion should be sent to the Bureau of Immigration, which, upon receiving such requests, is duty-bound to act expeditiously and remove the LOC. The Bureau should also inform the subject of the deletion, providing clarity and ensuring that their right to travel is restored promptly.

Importantly, the Originator of the LOC must provide clear and substantiated reasoning for the issuance of the LOC. The Originator should be cognizant of the reasoning supplied for issuance of LOC and such reasoning should serve as appropriate signage to guide executive action amply buttresses by reported authorities.

In balancing the rights of the accused and the interests of the Investigating Agency, the law demands that LOCs should be used judiciously and only as a last resort. The imposition of such a restriction should be based on solid grounds, such as a genuine risk of flight, evasion of arrest, or failure to attend court proceedings. For an accused person with a demonstrated history of cooperation with the legal process, the imposition of an LOC should not serve as an unwarranted barrier to their fundamental right to travel abroad.

It is imperative that LOCs are not used as a blanket tool for all accused individuals, but rather in situations where there is a genuine need to prevent the evasion of legal proceedings or where there is a clear risk of the accused fleeing the jurisdiction. The issuance of an LOC should always be a measure of last resort, after all other legal avenues have been exhausted. The principle behind the LOC system must not infringe upon an individual's fundamental rights, particularly the right to freedom of movement, unless absolutely necessary.

In conclusion, the issuance of an LOC, while a crucial tool for law enforcement, must always be tempered by principles of justice, fairness, and respect for fundamental rights. The Investigating Agency and the Bureau of Immigration must be diligent in ensuring that LOCs are issued only when necessary and are promptly reviewed when no longer required. Equally, the rights of the accused must be protected, and they should not be denied the opportunity to travel abroad if they have complied with the legal process. Ultimately, the LOC system should serve as a mechanism to ensure justice, not a tool for unjustly curtailing personal freedoms. By balancing these interests, the legal system can safeguard both the rules of law and the rights of individuals better.

Footnotes

^{1 Sumer Singh Salkan v. Assistant Director and Ors, 2010 SCC OnLine Del 2699}

^{2 Showik Indrajit Chakraborty v. CBI and Ors, (2024) I SCC (Bom) 174}

^{3 Deep Sarup Aggarwal v. Union of India, 2020 SCC OnLine Del 1913}

^{4 Noor Paul v. Union of India and Ors, 2022 SCC OnLine P&H 3408}

^{5 Bank of India v. Noor Paul and Ors., 2022 SCC OnLine SC 2108}

^{6 Abhayjeet Singh v. State of Rajasthan, S.B Criminal Misc. (Pet.) No. 4572/2023}

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.