Look out circulars are an effective tool for law enforcement. However, concerns arise as they may be issued with relative ease and there are limited recourses available against them. This article examines the issuance of look out circulars and the remedies available to parties against whom they are issued.
A look out circular (LOC) is a coercive measure taken by the State to restrict and regulate the movement of persons accused of cognizable offences who are required to face criminal prosecution in India. In certain exceptional circumstances, LOCs may also be issued against witnesses and suspects in the larger public interest to secure their attendance during investigations.
Law enforcement agencies use LOCs as a punitive or restrictive tool to: (i) coerce surrender to investigative agencies or courts; (ii) secure attendance before investigative agencies or courts; or (iii) monitor or report the movement of persons to prevent them from entering or leaving the country. A LOC entails the arrest or detention of a person as soon as he is traced at an airport or maritime port and their handover to the relevant agency.
Framework for issuance of LOCs
LOCs are a creation of the Executive and were earlier regulated by a letter issued by the Ministry of Home Affairs (MHA) dated 5 September 1979 (Letter of 1979) read with an office memorandum issued by the MHA on 27 December 2000 (2000 O.M.). The 2000 O.M. left much to the discretion and wisdom of the issuing authorities and the courts dealing with the LOCs. This led to: (i) the indiscriminate use of powers; (ii) a lack of clarity re the issuance of LOCs; and (iii) confusion as to the procedure to be followed for issuance of LOCs and the remedies available against such issuance. Given these issues and the absence of a comprehensive mechanism dealing with LOCs, the Delhi High Court set out the following guidelines for the issuance and closure of LOCs:
a. An investigating agency may request the issuance of a LOC when a person accused of a cognizable offence deliberately evades arrest or does not appear before the trial court despite the issuance of a non-bailable warrant (NBW) and it is likely they will leave the country to evade trial or arrest;
b. The investigating officer must submit a detailed, reasoned, written request to the MHA based on which the MHA will, through a reasoned order, direct the issuance of a LOC;
c.The person against whom a LOC is issued must: (i) join investigation; (ii) surrender before the concerned court; or (iii) ask the court or competent officer to set aside the LOC as being issued wrongly. The issuing authority or the concerned court can withdraw or rescind the LOC on an application by the concerned person.
d.The jurisdiction of the court in affirming or cancelling a LOC is commensurate with the jurisdiction of cancellation or affirmation of NBWs.
The MHA has since substituted the 2000 O.M. with an Office Memorandum dated 27 October 2010 (2010 O.M.). While the 2010 O.M. does conform with certain principles laid down by the courts, grey areas as to the power and process to issue LOCs and the constitutional validity of LOCs remain. As a consequence, LOCs continue to be issued with relative ease, particularly for white collar crimes including against persons who were merely suspected of being involved in offences. In addition to the LOCs issued against Indian nationals, approximately 41,000 LOCs were issued against foreign nationals between 2018 and 2020.
Issuance of LOCs
The Investigating Officer or Authorised Officer of an agency empowered by the 2010 O.M. may, in writing and specifying their reasons, request the Bureau of Immigration to issue a LOC. Additionally, public sector banks may request the issuance of LOCs to prevent wilful defaulters from evading the process of law.
With the issuance of the 2010 O.M., statutory commissions (like the National Commission for Women, National Human Rights Commission, etc.) may request the issuance of LOCs through law enforcement agencies. However, requests from statutory commissions must be assessed by the relevant enforcement agencies before being forwarded to the Bureau of Immigration.
Validity of LOCs
LOCs are valid for a period of 1 year from their date of issuance and lapse automatically unless: (i) a request for renewal is made to the Bureau of Immigration; (ii) the LOCs have been issued pursuant to an order of court of law and, or, Interpol; (iii) the LOCs are in respect of loss or impounding of passport; or (iv) the LOCs are to monitor the entry of an absconder into the country.
A LOC generally stands closed when the NBW has been executed or the person concerned is taken into custody. Courts have, therefore, repeatedly set aside LOCs against persons taken into custody, including those subsequently released on bail, and have rejected arguments to the effect that LOCs merely facilitate the imposition of the restrictive conditions on travel imposed by courts.
Persons against whom LOCs can be issued
Per the 2010 O.M., LOCs can be issued against persons accused of a cognizable offence only when: (i) there is a NBW pending against them; and (ii) they are likely to evade the process of law. However, relaxations were granted for issuance of LOCs against terrorists, anti-national elements, counter-intelligence suspects, etc. in the ‘larger national interest’ (exceptions).
The 2010 O.M. was amended in 2017 to expand the scope of the exceptions by:
The requesting agency must demonstrate the existence of ‘exceptional circumstances’. The absence of any objective criteria under the 2010 O.M. for determining these ‘exceptional circumstances’ has often been abused by the requesting agencies when issuing LOCs during financial fraud investigations citing their adverse impact on the economy. The courts have often criticised this practice of first issuing LOCs and then failing to demonstrate the applicability of the exceptions, holding such actions to be violative of Articles 19 and 21 of the Constitution of India. That said, the practice of indiscriminately issuing LOCs on the basis of the exceptions continues.
Remedies against a LOC
A person against whom a LOC is issued may:
on the ground that the LOC has been wrongly issued.
As a LOC infringes the fundamental right to personal liberty and movement, a person may also file a writ before the High Court. However, the High Courts are generally reluctant to entertain writs and direct the aggrieved persons to first approach the concerned criminal court to seek appropriate relief. In certain cases, the High Courts have refrained from exercising their extraordinary jurisdiction when the investigating agencies have made out a prima facie case for issuance of the LOC, although they have also actively interfered in cases where grave illegality in the issuance of a LOC has been found. Experience demonstrates that successful challenges to LOCs are not rare.
What lies ahead?
The 2010 O.M. is not a comprehensive code and the courts often have to determine the validity of LOCs or fill in the procedural gaps. It is thus essential that an all-encompassing statutory framework is implemented to regulate all aspects of issuance of LOCs, either through a new standalone statute or by necessary amendments in the Code of Criminal Procedure, 1973. The framework must prescribe: (i) a comprehensive definition of a LOC; (ii) the parameters for issuing a LOC; and (iii) guidelines to determine ‘exceptional circumstances’. Discretion of requesting agencies should be kept to a minimum to prevent the indiscriminate use of powers. Codifying the framework will also address concerns as to the constitutionality (or lack thereof) of LOCs, which we will discuss in our next article.
At the same time, it is also essential that agencies, both requesting and issuing, are saddled with higher responsibility and penal consequences ensue against any misuse or abuse of the powers to issue LOCs. A similar move by the Supreme Court in Arnesh Kumar v. State of Bihar has been arguably effective in curbing arbitrary arrests.
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