Debriefed: Look Out! It’s an LOC explainer

Recently, journalist Rana Ayyub and activist Aakar Patel, both vocal critics of the present dispensation, were rather unceremoniously put on a no-fly list by the Central Bureau of Investigation (CBI) through the issuance of Look Out Circulars (LOCs) against them.

Ayyub eventually got relief from the Delhi High Court, which held that the LOC against her was issued in haste and infringed on her right to travel abroad and exercise her freedom of speech and expression. However, Patel has not been so fortunate, having been stopped at the airport twice in as many days, even as a court initially ruled in his favour. His case remains pending before a lower court in the capital, after the CBI filed a revision application against the April 7 order.

While some see the LOC as yet another means used to harass those who speak out against the government, the authorities have justified its use before the courts, apprehending that persons like Ayyub and Patel may never return to India to face the justice system, in cases pending against them.

So, what is an LOC? What is legal sanction behind issuance of the same? What are the conditions that have to be fulfilled by authorities that issue such circulars?

We attempt to answer all these questions and more in this edition of Debriefed.

At present, there is no law passed by Parliament which prescribes the power to issue LOCs. Police officers in general have the power under the Criminal Procedure Code (CrPC) to arrest anyone who commits a cognizable offence. The concept of the LOC, however, is quite different, in that it does not emanate from any statutory power. It is generally used for those accused who have been declared as ‘proclaimed offenders’ and have been involved in economic offences or white-collar crimes. An example of this was in 2015, when the CBI issued LOCs against Vijay Mallya, who was the prime accused in a 9,000 crore loan default case.

The power to issue these circulars was first set out by the Union Ministry of Home Affairs in 1979. Subsequent memos were issued by the Ministry in 2000 and 2010. As per the latter office memorandum, an investigating officer had to make a written request for an LOC to an officer of the relevant rank giving details and reasons for seeking the circular.

An LOC is issued against an individual who is absconding arrest or is wanted by law enforcement authorities. Such circulars are issued mostly to restrain individuals/accused from leaving the country. In majority of the cases, it is used at immigration checkpoints at various airports.

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 subject of an LOC can challenge the circular and get relief from a court.

As per the 1979 circular, and one that was issued in 2010, the request for opening an LOC against an individual must be approved by an officer not below the rank of Deputy Secretary to the Government of India or Joint Secretary to the State government or a Superintendent of Police at the district level.

In its 1979 memorandum, the MHA stated that LOCs are issued to check the arrival/departure of foreigners and Indians “whose arrival/departure has been banned by the concerned authorities.” The MHA also set out some basic guidelines for issuing such a notice. The said letter clarifies that the authorities which could issue LOCs included the Ministry of External Affairs, the Customs and Income Tax Departments, Serious Fraud Investigation Office, Directorate of Revenue Intelligence, Central Bureau of Investigation, Interpol, Regional Passport Officers and police authorities.

An official directive issued by the Union Territory of Puducherry states that on issuance of LOC, it will automatically be deleted after one year, if not reviewed and renewed.

In Sumer Singh Salkan v. Asst. Director and Others, the Delhi High Court answered certain questions on the procedure to be followed while issuing LOCs.

• When accused deliberately evades arrest

The Court said that recourse to LOC can be taken by the investigating agency in cognizable offences under the IPC or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite non-bailable warrants, and if there was a likelihood of the accused leaving the country to evade trial/arrest.

• Detailed reasons to be given by the IO requesting for LOCs

The Investigating Officer (IO) shall make a written request for the LOC to the officer as notified by the MHA circular, giving details and reasons for seeking the LOC. The competent officer alone shall give directions for opening of LOC by passing an order in this respect.

• Accused can approach the IO if LOC is wrongly issued

The person against whom an LOC is issued must join the investigation by appearing before the IO, should surrender before the court concerned or should satisfy the court that the LOC was wrongly issued against him. He may also approach the officer who ordered the issuance of the LOC and explain why it was wrongly issued

An LOC can be withdrawn by the authority that issued it and can also be rescinded by the trial court before which the case against the accused is pending or having jurisdiction over the concerned police station on an application by the person concerned.

• LOC vis-a-vis non-bailable warrants (NBWs)

The Court said that the subordinate courts’ jurisdiction in affirming or cancelling the LOC is commensurate with their jurisdiction to cancel or affirm NBWs.

Over the years, High Courts have repeatedly pulled up the authorities for their heavy-handed use of LOCs to prevent citizens from travelling abroad.

LOC curtails right to personal liberty

In Vikas Chaudhary v. Union of India, the Delhi High Court came down heavily on the CBI for issuing an LOC against a man who earned his livelihood by exporting garments to foreign countries. The Court said that LOC does not only curtail his right to personal liberty but also his right to livelihood, as enshrined in Article 21 the Constitution of India.

“One also has to keep in mind that the issuance of a LOC is an extremely severe step and when purportedly issued in exceptional circumstances, on the ground of the departure of the person being ‘detrimental to the economic interests of India’, the authorities must tread with caution,” the Court held.

Infringes human rights and right to travel abroad

In Rana Ayyub v. Union of India, the Delhi High Court said that by restraining the journalist from travelling abroad through the LOC, her human right to travel abroad and freedom of speech and expression was infringed. The Court further held,

"An LOC is a coercive measure to make a person surrender and consequentially interferes with petitioner’s right of personal liberty and free movement."

Issued in hot haste

In Karti P Chidambaram v. Bureau of Immigration, the Madras High Court quashed the LOC issued against the son of former Union Minister P Chidambaram, in connection with the INX Media case. While quashing it, the Court said that the said LOC was issued in “hot haste” and conditions for issuance of LOC were absent.

“Such LOCs cannot be issued as a matter of course, but when reasons exist, where an accused deliberately evades arrest or does not appear in the trial Court. The argument of the learned Additional Solicitor General that a request for Look Out Circular could have been made in view of the inherent power of the investigating authority to secure attendance and cooperation of an accused is contrary to the aforesaid circulars and thus, not sustainable,” the Court said.

Curtails personal liberty

In Soumen Sarkar v. State of Tripura and others, the Tripura High Court quashed LOCs issued against an NRI journalist who was accused of publishing a series of articles that allegedly defamed Tripura's Chief Minister.

While doing so, the Court held,

“…the action which curtails or takes away the personnel liberty has to be reasonable and proportionate and has to be considered not in the abstract or hypothetical considerations."

Non-supply of LOC copy at airport violative of Article 21

Most recently, in Noor Paul v. Union of India, the Punjab & Haryana High Court held that not supplying a copy of the LOC to the concerned person at the airport is violative of Article 21 of the Constitution, which safeguards the right to life and personal liberty.

It was acknowledged that the authorities may not wish to issue a prior notice to the LOC subject as there would be a possibility that on receiving such notice, the subject may clandestinely leave the country. However, the Bench did not see an impediment to give a post-decisional opportunity to the petitioner by supplying the LOC and the reasons for issuing it, so that the subject could take legal recourse to challenge it.

Edited by Aditya AK.

Areeb Uddin Ahmed is a Lucknow-based advocate.