After making some inquiries, the conversation was pertaining to the issuance of Look-Out-Circular, a mechanism for restraining offenders, criminals, loan defaulters, etc from leaving the country without facing the brunt of their deeds or say misfortune. If we switch on our TV sets, we would see some page 3 names who have fled the country after defaulting on… Read More »

After making some inquiries, the conversation was pertaining to the issuance of Look-Out-Circular, a mechanism for restraining offenders, criminals, loan defaulters, etc from leaving the country without facing the brunt of their deeds or say misfortune. If we switch on our TV sets, we would see some page 3 names who have fled the country after defaulting on their loans, looting investors, many even after bombing major cities. (Seriously, I am not naming anyone here, just google them)

“The ones who do not comply with the law are minuscule, while those who do are still large in number” said one senior advocate. The other senior replied, “laws are made keeping in mind those limited people only, the others just suffer”. There was a lot of commotion in court that day but this quote stuck.

William O Douglas[1] said ‘Freedom of movement is the very essence of our free society, once the right to travel is curtailed, all other rights suffer.’ Therefore, curtailing ones right to freely move or travel is a serious infringement of one’s fundamental right and cannot be hampered without following due procedure. For many travelling is a way of life and is imperative for one’s survival. However, we are all bound by laws and in exceptional circumstances, one may be prevented from travelling.

Offenders, on your mark, get set and GO….!

All men make mistakes, but a good man yields when he knows his course is wrong and repairs the evil. The only crime is pride.[2]

We all make mistakes (some of us commit crimes as well), but none of us wants to bear the brunt of these mistakes. Thus, we find a million ways to hide our mistakes in order to save ourselves from punishment/embarrassment. We all know from our childhood, if one has to run from accountability, the easiest way is ‘to run away’.

And when the accountability is large, logic suggests, one has to run to the farthest possible place wherein one becomes un-traceable. With your googling prowess, we have also established that many have run to countries from where their return is practically and politically impossible. A recent incident when an Indian plane returned from Dominica without the wanted jeweller fortifies this stand.[3]

Look-Out-Circular, Red Corner Notice, and Blue Corner Notice

The idea is to bring the offender to justice, and the only way to do that is by apprehending the offenders as soon as the crime has been brought to light. Sadly, not all offenders are 8 years old breaking water coolers at their sister’s school, a true story. Most of these people plan and execute these schemes over a period of time, thus catching right after the crime is brought to light may not be possible.

Most people would abscond, and if one has planned and executed well. In all likelihood, absconding would be a part of their plan. So, then what do the investigating agencies do? Some of the terms that one may come across for untraceable accused persons/convicts are proclamation[4], Blue Corner Notice (BCN), Red Corner Notice (RCN), Look-Out-Circular (LOC), etc.

Interestingly, there is no way of knowing if one has a Look-Out-Circular against them. One only knows when one reaches the immigration and is then detained due to the Look-Out-Circular being initiated against her/him. As one can say those who don’t travel, would not notice the chains[5]. BCN and RCN are used by Interpol to trace and arrest an individual who may be on the run at the request of a member country, a procedure used by international agencies to locate/arrest.

The proclamation can be found in the Code of Criminal Procedure and serves as a coercive tool for making a person surrender before the authorities/courts. A proclamation order is issued by a court after it is satisfied that the offender is evading arrest or service of process. Interestingly, the term Look-Out-Circular is nowhere to be found in any of the statutes. The process of issuing Look-Out-Circulars is the creation of necessity.

“The High Court observed that a Look-Out-Circular is a communication received from an authorized government agency with reference to a person who is wanted by an agency for the fulfillment of a legal requirement, to secure the arrest of a person evading arrest, to nab a Proclaimed Offenders so as to facilitate court proceedings by securing the presence of a person of interest”.

Well, to be honest, if the offender is in the country, the agencies are more likely to get to them. So, the offenders tend to leave the country and hide in places from where their return cannot be warranted. However, to protect such a scenario, the agencies issue a Look-Out-Circular wherein the details of the required personnel are sent to airports, ports, etc from where they may be expected to run.

The recent case was that of Ms. Jacqueline Fernandez, wherein she was detained at the Mumbai airport by immigration authorities pertaining to a Look-Out-Circular issued against her at the request of the Directorate of Enforcement. So, the remedy available with the agencies to prevent the absconding of accused persons is quite effective. It is important to understand that, not only are they prevented to leave the country, anyone coming from abroad will also be detained/apprehended if one is returning and there is a Look-Out-Circular against her/him.

Procedure for issuing Look-Out-Circular

Various courts have held that recourse to Look-Out-Circular should be taken only when it is established the accused is deliberately evading arrest or not appearing in the trial court despite various attempts and other coercive measures have been exhausted as well as there is a likelihood of the accused leaving the country to evade trial. The office memorandum dated 27.10.2010 clearly states that a request has to be made to the Deputy Director, Bureau of Immigration, and the same must originate from an officer not below the following ranks

    1. Deputy Secretary to the Government of India; or
    2. Joint Secretary in the State Government; or
    3. District Magistrate of the District concerned; or
    4. Superintendent of Police (SP) of the District concerned; or
    5. SP in CBI or an officer of the equivalent level working in CBI; or
    6. Zonal Director in Narcotics Control Bureau (NCB) or an officer of equivalent level (including Assistant Director (Ops.) in Headquarters of NCB) ; or
    7. Deputy Commissioner or an officer of equivalent level in the Directorate of Revenue Intelligence or Central Board of Direct Taxes or Central Board of Excise and Customs; or
    8. Assistant Director of IB/Bol; or
    9. Deputy Secretary of R&AW; or
    10. An officer not below the level of Superintendent of Police in
    11. National Investigation Agency; or
    12. Assistant Director of Enforcement Directorate; or
    13. 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; or
    14. Designated officer of Interpol

It is the Bureau of Immigration that acts on the request of such Look-Out-Circular as and when they come across a person of interest, who is detained and handed over to the concerned authority. Therefore, a request for issuance of Look-Out-Circular must contain all the details of the person of interest in order to identify the person. Look-Out Circulars may be issued for various reasons by various authorities including banks, investigating authorities, etc.

However, it must be noted that the legal liability of actions taken by the immigration authorities rests with the originating/requesting agency. One would be surprised with the number of people having Look-out-Circulars against them, it is as if Look-out-Circulars are being issued as a matter of procedure.

Louis Chevrolet[6] said the movement is the universal language of personal freedom. Not only the race car driver but the Hon’ble Supreme Court observed that the expression “personal liberty” in Article 21 takes in the right of locomotion and travel abroad and under Article 21 no person can be deprived of his right to go abroad except according to the procedure established by law.[7]

There is no doubt that a Look-Out-Circular means an impediment to one’s travel and movement. Thus, it is amply clear that the right to travel cannot be curtailed without due procedure established by law. Since Look-Out-Circulars do not form part of any statutory scheme the courts’ office memorandums are a creation of practice and urgency. However, in the absence of relevant law, whether an office memorandum is considered sufficient barred under the Constitution, or would it permissible?

The Hon’ble High Court of Delhi, in Sumer Singh Salkan[8] was ceased the issue pertaining to the Look-Out-Circulars. Though the question of constitutionality was not considered, the Hon’ble Court gave the following guidelines while issuing Look-Out-Circular by investigating agencies

  1. Offenses where the accused is deliberately evading arrest despite NBWs and other coercive measures
  2. There is a likelihood of the accused leaving the country to evade trial/arrest.
  3. The competent officer alone shall give directions for opening LOC by passing an order in this respect based on a written request.
  4. Issuance of Look-Out-Circular is a coercive measure.
  5. The jurisdiction of district courts in affirming or canceling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs.

The objective behind the issuance of a Look-Out-Circular is that the wanted person is brought before the concerned authorities to enable investigation etc.

Wrongful issuance of Look-Out-Circulars.

For remedies against wrongful issuance of Look-Out-Circulars, the Hon’ble High Court rendered the jurisdiction on district courts in a manner akin to cancellation of NBWs.[9] Thus, in order to have the Look-Out-Circular cancelled one may approach the officer who ordered issuance of Look-Out-Circular or the trial court where the case is pending or such court which has jurisdiction over the concerned police station on an application by the person concerned.

If the Look-Out-Circular is issued incorrectly the person has to satisfy the court that Look-Out-Circular was wrongly issued against him, thus the de-facto onus lies on the concerned person to satisfy the courts of his innocence and/or his non-absconding. Also, against the issuance of Look-Out-Circular one may approach the High Court under its Writ Jurisdiction for infringement of rights under Article 21 of the Constitution.

Validity and Legality of Look-Out-Circulars

When a Look-Out-Circular is issued, it is important to understand that till when do the same remain effective. The Hon’ble Delhi Court in Jitender Kumar v. Govt. of NCT of Delhi[10] observed that when the concerned person has joined the investigation the Look-Out-Circular has served its purpose and must be rescinded. Also, as per the Office Memorandum dated 27.10.2010, the Look-Out-Circular will normally be lapsed after completion of one year of its issuance unless requested otherwise and in certain exceptional cases.

It has been noted that the courts have been liberal whenever Look-Out-Circulars are in question especially when no criminal complaints are pending. The Calcutta High Court held that neither Look-Out-Circular nor its subsequent extension can go beyond the reasons furnished by the originating authority.

It was also held that there is no justification in withholding a person unnecessarily from leaving the country, particularly in view of the fact that the livelihood of the petitioner depends on such overseas travel.[11] With the passage of time, economic offenses have gripped the country, and the Office memorandum dated 27.10.2010 has been amended to incorporate such dynamic changes.

Many Look-Out-Circulars are issued pertaining to such offenses. However, the courts have been liberal in interpreting the terms economic interest in the office memorandum, the Delhi High Court recently held that phrases such as economic interestor larger public interestcannot be expanded in a manner so as to include an Independent Director who was in the past associated with the company being investigated, without any specific role being attributed to him, as in the present case.[12]

Conclusion: Every act must be balanced

The right to locomotion and travel constitutes one of the most important rights envisaged under the constitutional scheme of our country. Therefore, arbitrary actions in issuing Look-Out-Circular is a serious infringement of one’s fundamental right. Though it is important that criminals do not leave the country and are punished, it is equally important that the innocent public is not harassed due to arbitrary and lack of application of mind. The agencies must be mindful of their actions in issuing Look-Out-Circulars and only as a last resort the same be issued.

Rule of law is all about balancing the good and the bad, establishing a society of peace and order. Considering the judgments, the courts have always come to the aid of the citizens enabling them to avail themselves of the benefit of freedom of travelling with certain conditions. The Delhi High Court in Akhilesh Agarwal v. CBI even allowed an Overseas Citizen of India to return home while imposing certain conditions.

However, the issuance of Look-Out-Circular has been seen to be arbitrary in a number of cases. It must also be kept in mind that the issuance of these circulars may also cause a lot of defamation and embarrassment. The difficulty does not end with having a favourable order from the court. Its implementation is another task wherein a lot of coordination needs to be done. Many a time, fliers have to wait at the immigration because the originating authority had not communicated the cancellation of the Look-Out-Circular.

Thus, the originating authority, as well as the Bureau of Immigration, need to work in tandem and have greater accountability in the issuance and cancellation of such circulars. Any lapse on the part of these authorities should be taken seriously and accountability must be attached for any delay and lapses.

[1] William Orville Douglas was an American jurist and politician who served as an associate justice of the Supreme Court of the United States, who was known for his strong progressive views, and is often cited as the Supreme Court’s most liberal justice ever.

[2] Antigone by Sophocles

[3] Private jet sent by India to bring back Mehul Choksi leaves Dominica, PTI, Business Standard, Available Here

[4] Section 82 Criminal Procedure Code: Proclamation for person absconding.

[5] Rosa Luxembourg

[6] Louis Chevrolet was a Swiss race car driver, co-founder of the Chevrolet Motor Car Company in 1911, and a founder in 1916 of the Frontenac Motor Corporation

[7] Maneka Gandhi

[8] Sumer Singh Salkan

[9] Sumer Singh Salkan

[10] W.P.(CRL) 437/2015

[11] Mritunjay Singh v. Union of India 2021 Cri LJ 2687

[12] Brij Bhushan Kathuria v. Union of India & Others 2021 SCCOnLine Del 2587

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Updated On 22 Jan 2022 12:37 AM GMT
Aastik Dhingra

Aastik Dhingra

Practicing Advocate, Delhi

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