ABSTRACT
A ‘Look Out Circular’ (LOC) is a circular issued by the state authorities to prevent a person from leaving the country. It is a coercive legal tool used to prevent a person accused of a cognizable offence from fleeing the country to avoid prosecution or to prevent a person from leaving the country until an investigation is completed. LOCs are usually issued by the police, intelligence agencies, or other government agencies authorised by the Ministry of Home Affairs (MHA). LOCs may also be issued against witnesses and suspects in extreme situations to ensure their presence during investigations in the interest of the general public. LOCs are commonly used in India in cases of financial fraud, economic offences, and other criminal cases. In this article, we will discuss the legal framework for LOCs in India, relevant circulars, case laws, and the implications of an LOC on an individual.
I. INTRODUCTION
Restricting movement of persons by means of issuance of an LOC prima facie goes against the very tooth of the principles of ‘personal liberty’. According to the Black’s Law Dictionary, “Personal Liberty” refers to a person’s freedom to behave as they would like. However, such liberty must not be absolute, and it is crucial for everyone to abide by the social norms of their community.
The landmark Menaka Gandhi v Union of India[1] judgement observed that personal liberty within the meaning of Article 21 includes within its ambit the right to go abroad and consequently, no person can be deprived of this right except according to the procedure prescribed by law. Meaning thereby, that although the right to travel abroad is accorded a fundamental right status, the state can prescribe procedures for restraining a person’s personal liberty to travel abroad, if the circumstances so demand.
Issuance of an LOC is one such legal procedure used to prevent a person accused of a cognizable offence from fleeing the country to ‘avoid prosecution’ or to prevent a person from leaving the country ‘until an investigation is complete.’ In the case of Rupali Devi v State of Uttar Pradesh[2], the Supreme Court categorically held that the issuance of an LOC must be based on the facts and circumstances of each case and must not be a routine practice. The court also held that the LOC must be issued only when there is a real apprehension that the person may flee the country to avoid to prosecution.
II. LEGAL FRAMEWORK ON LOCs
MHA Circular of 1979 and 2000
The MHA published a circular dated September 5, 1979, with reference number 25022/13/78-F.I. (“MHA Circular of 1979“) containing the guidelines for issuance of LOCs that served as the foundation for the present LOC structure. The MHA subsequently revised this in its Office Memorandum dated December 27, 2000, with reference number 25022/20/98/F. IV. (MHA Circular of 2000).
As per the MHA Circular of 1979, in addition to the Government of India, other authorities having the power to issue LOCs include the Ministry of External Affairs, the Customs and Income Tax Departments, the Directorate of Revenue (“DRI”), the Central Bureau of Investigation (“CBI”), Interpol, Regional Passport Officers, and Police Authorities of different states.
Further, the MHA Circular of 2000 elaborated upon the steps to be taken by the Indian authorities for issuance of an LOC. The authorities must make a request for an LOC to all the immigration check posts in India and must include the accused person’s complete details. Only an officer, not below the rank of Deputy Secretary to the Government of India, Joint Secretary in the State Government, or concerned Superintendent of Police at the district level, can approve such an LOC.
Challenge to the MHA Circular of 2000
In two significant cases, the MHA Circular of 2000 was challenged on the subject of the issuance and enforceability of an LOC. In both these cases, the Delhi High Court issued detailed guidelines w.r.t issuance and enforceability of LOCs.
- Sumer Singh Salkan v Asst Director & Ors.[3]
In this case, the court answered 4 (four) questions raised by the lower court, which are mentioned below:
“Q1) What are the categories of cases in which the investigating agency can seek recourse of Look-out-Circular and under what circumstances?
Ans- Recourse to LOC can be taken by investigating agency in cognizable offences under IPC or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest.
Q2) What procedure is required to be followed by the investigating agency before opening a Look-out-Circular?
Ans- The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs, giving details & reasons for seeking LOC. The competent officer alone shall give directions for opening LOC by passing an order in this respect.
Q3) What is the remedy available to the person against whom such Look-out-Circular has been opened?
Ans- The person against whom LOC is issued must join investigation by appearing before I.O. or should 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 issuance of LOC & 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 case is pending or having jurisdiction over concerned police station on an application by the person concerned.
Q4) What is the role of the concerned Court when such a case is brought before it and under what circumstances the subordinate courts can intervene?
Ans- LOC is a coercive measure to make a person surrender to the investigating agency or Court of law. The subordinate courts’ jurisdiction in affirming or cancelling LOC is with the jurisdiction of cancellation of NBW (Non-bailable warrants) or affirming NBWs.”
- Shri Vikram Sharma v Union of India[4]
In this case, the Delhi High Court categorically held that a “request for issuance of an LOC cannot be made by all statutory bodies”. Further, the court observed that:
- A request for issuance of LOC must only come from either the Central or the State Government, that too only in the prescribed form and then again only by the officers of a certain rank.
- Criminal courts dealing with cases of criminal law enforcement can issue directions, which may result in the issuance of LOC.
- The power to suspend, even temporarily, the passport of a citizen, the power to issue LOC, the power to ‘off-load’ a passenger and prevent him or her from travelling are all extraordinary powers, vested in the criminal law enforcement agencies by the statutory law.
- Finally, the court observed that it is imperative that the MHA should issue further clarificatory circulars or Office Memoranda clearly stating that the request for issuance of LOCs cannot ’emanate’ from statutory bodies.
MHA Circular of 2010
Taking into account the aforementioned two judgements, the MHA issued an Office Memorandum dated 27.10.2010 bearing reference number 25016/31/2010-Imm. (“MHA Circular of 2010”) to further detail the ranks of the officers in each of the central and state governmental agencies and police authorities who were authorised to issue LOCs.
2018 Amendment to MHA Circular of 2018
Vide the 2018 Amendment to the MHA Circular of 2018, the MHA has given public sector banks’ chairmen, managing directors, and chief executive officers the authority to propose the opening of a LOC (“2018 Amendment”).
As per the 2018 Amendment, a Look Out Circular (LOC) can be opened by the Bureau of Immigration in respect of both ‘Indian citizens’ and ‘foreigners’ on the request of an “authorized originator”, which includes an officer not below the rank of Deputy Secretary to the Government of India; or an officer not below the rank of Joint Secretary in the State Government; or District Magistrates; or Superintendents of Police; or designated officers of various law enforcing and security agencies; or designated officer of Interpol; or Chairman/Managing Director/Chief Executive of all Public Sector Banks; or as per directions of any Criminal Court in India. The Immigration Authorities can detain as well as prevent any person, including a wilful defaulter, from leaving India against whom LOC has been issued.
III. ISSUANCE OF LOC
As per the MHA circular of 2010 and as held in the case of Shri Harshvardhana Rao v Union of India[5], the following authorities can issue an LOC, collectively known as “Originators”:
- Superintendent of Police
- District Magistrate
- Joint Secretary of State
In Suresh Nanda v. CBI[6], , the Supreme Court held that the issuance of an LOC must be based on credible and relevant information. The court also held that the LOC must be issued in accordance with the guidelines laid down by the Ministry of Home Affairs. Further, in Lalita Kumari v Govt of Uttar Pradesh[7], the Supreme Court held that the police cannot initiate a preliminary enquiry without registering an FIR. Therefore, an LOC cannot be issued merely on the basis of a preliminary enquiry.
IV. REQUEST FOR ISSUANCE OF LOC
As per the MHA Circular of 2010, a request for issuance of an LOC can be made by the following:
- Deputy Secretary to the Government of India.
- Joint Secretary in the State Government.
- District Magistrate of the District concerned.
- Superintendent of Police (SP) of the District concerned.
- SP in CBI or an officer of equivalent level working in CBI.
- Zonal Director in Narcotics Control Bureau (NCB) or an officer of equivalent level.
- Deputy Commissioner or an officer of equivalent level in the DRI or Central Board of Direct Taxes or Central Board of Excise and Customs.
- Assistant Director of IB/BoI; or Deputy Secretary of R&AW.
- An officer not below the level of Superintendent of Police in National Investigation Agency.
- Assistant Director of Enforcement Directorate.
- Protector of Emigrants in the office of the Protectorate of Emigrants or an officer not below the rank of Deputy Secretary of the Government of India.
- Designated officer of Interpol.
- On directions of any Criminal Court in India.
V. VALIDITY OF LOC
The LOC will be in effect for ‘one year from the date of issuance’, after which the subject’s name will be automatically deleted unless the relevant agency requests that it be renewed within that year. All LOCs with a validity of more than one year will be presumed to have expired, unless the requesting agency specifically request the continuation of the names in the LOC.
VI. HOW TO FIND OUT IF LOC HAS BEEN ISSUED?
The LOC is a very confidential document; the general public is unaware of whether or not the LOC was issued. Even under RTI, it is not possible to find out if an LOC has been opened or not.
The majority of individuals against whom LOCs are issued learn about this information when they are held at the immigration port when crossing, or NRIs speculate about this fact when they are detained at the immigration port while crossing, or NRIs speculate about this fact in the same way that they suspect a FIR has been filed against them.
However, anyone apprehending an LOC being issued against their name can approach the following places to obtain such information:
• The police station in which the FIR was filed.
• District SP/DCP officers or other officers with a comparable rank in any investigative agency.
• Immigration Law Enforcement
• Trial Court records (in the case of NRIs), if the court has begun the issuing of LOC.
VII. HOW TO GET LOC CANCELLED?
Although the Investigating Agency and Courts both have the authority to cancel or temporarily suspend an LOC, the process of getting it cancelled through the Investigating Agency and Police is complicated.
Approaching the trial court for LOC cancellation or suspension is the preferable course of action in this situation.
The courts have typically been generous enough to recall it totally and suspend it for a short period of time for non-heinous offences where the offender was not arrested after the issuance of the LOC. Even if a person was detained as a result of the issuing of a LOC and does not have to stand trial for a serious crime, the trial court or higher courts will typically revoke or suspend the LOC by requesting increased surety.
However, if the offense is of a grievous nature, the court may not be inclined towards cancelling/suspending the LOC.
Another medium could be writing a letter to the Issuing authority stating that the LOC has been wrongly issued, and the same is violative of the fundamental right under Article 21. If the case is meritorious, the authorities can suspend/cancel the LOC.
VIII. CONCLUSION
The issuance of an LOC has significant implications on an individual’s right to travel abroad. An individual against whom an LOC has been issued may be detained at airports or seaports, and their passport may be impounded. Moreover, an LOC can have serious consequences on an individual’s professional and personal life.
LOCs are an important legal tool used by authorities in India to prevent individuals from fleeing the country to avoid prosecution or to prevent them from leaving the country until an investigation is completed. The legal framework for LOCs is governed by the CrPC, and several circulars have been issued by the Ministry of Home Affairs to provide guidelines for their issuance. The issuance of an LOC has significant implications on an individual’s right to travel abroad, and therefore, its issuance must be done with due care and caution.
[1] AIR 1978 SC 597
[2] (2019) 9 SCC 739
[3] W.P. (Crl.) No.1315/2008
[4] WP (C) No. 10180 of 2009
[5] W.P No. 12185/2022 (GM-RES)
[6] (2008) 3 SCC 674
[7] (2014) 2 SCC 1