Look out circulars:India
This is a collection of articles archived for the excellence of their content.
High Court guidelines:2010
Jan 14 2015
Five years ago, the Delhi high court laid down clear guidelines under which a look-out circular (LOC) could be issued and a person “offloaded“ by authorized government agencies.
The move to stop Greenpeace India activist Priya Pillai at Delhi airport has brought into focus an HC order of 2010, where incidentally , the court awarded Rs 40,000 as compensation to a passenger who was offloaded on the basis of a complaint by the National Commission for Women over a matrimonial dispute. It had also asked the home ministry to revise norms on issuing LOC.
The government cited this order by Justice S Muralidhar to point out that as per new circular issued by MHA in 2010, an officer in the rank of assistant director in the IB is authorized to issue a look out circular for any individual on the basis of inputs received against the person.
However, the authorities seem unaware of another verdict by Justice S N Dhingra delivered barely a month later in August 2010, where he specified circumstances under which an LOC can be issued.
“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 non-bailable warrants and other coercive measures and there was likelihood of the accused leaving the country to evade trialarrest,“ Justice Dhingra held.He further made it clear the “IO shall make a written request for LOC to the officer as notified by the circular of MHA, giving details & reasons for seeking LOC.“
While Justice Muralidhar said quasi judicial bodies such as NCW did not have the jurisdiction to issue LOC, the later verdict by Justice Dhingra came in answer to a reference sent by trial court seeking comprehensive guidelines on issuing of LOC.
High Courts on preventing travel abroad
Jan 16 2015
Was IB empowered to offload green activist Priya Pillai?
If Greenpeace India activist Priya Pillai challenges its action in a court, the Intelligence Bureau (IB) will be hard pressed to establish its authority to take recourse to a look out circular (LOC), let alone the legality of getting her “offloaded“ at the Delhi airport, because of the ticket she had received from abroad.
This is because the LOC initiated by IB against Pillai on January 9 is contrary to a slew of high court judgments on who can take a call on preventing somebody from flying out of the country despite the papers being in order and who can be subjected to such a coercive measure.
In its letter to the home ministry , the IB reportedly said that, in keeping with the prescribed procedure, it had opened the LOC against Pillai through an officer of the rank of assistant director. What it glossed over was however a more fundamental issue: whether any of its officers, as part of an intelligence agency operating outside the framework of criminal law, were empowered at all to initiate the LOC process.
For high courts consistently held that the power of resorting to the LOC option is vested only with duly constituted law enforcement or investigating agencies. Since there is no express provision for LOC in any of the laws, judges have traced this power to the Criminal Procedure Code and the amendments made to the Passport Act in 2001 empowering a designated officer to suspend a passport temporarily .
As Justice S Muralidhar of the Delhi high court put it in July 2010 in Vikram Sharma vs Union of India, “The power to suspend, even temporarily ,a passport of a citizen, the power to issue an LOC, the power to offload a passenger and prevent him or her from travelling are all extraordinary powers, vested in the criminal law enforcement agencies by the statutory law.These are powers that are required under the law, to be exercised with caution and only by the authorities who are empowered by law to do so and then again only for valid reasons.“
Given that it does not have a statutory basis, the IB can hardly claim to be such an authority empowered by law to exercise the LOC option as it did against Pillai. The question of whether it had “valid reasons“ for doing so will land IB in further trouble.By its own admission, IB requested the opening of the LOC against Pillai merely because she was suspected to have violated the Foreign Contribution Regulation Act (FCRA) by receiving her ticket to London from Greenpeace International. Even if that ticket can constitute a transgression of FCRA, the IB cannot claim to have procured the LOC in the course of any lawful investigation or trial.
According to judicial opinion, the LOC option can be used only by an investigating agency and only for the purpose of ensuring the availability of an accused. In his August 2010 ruling in Sumer Singh Salkan vs Assistant Director, Justice S N Dhingra of the Delhi HC said: “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 trialarrest.“ It is only when the investigating officer (IO) gives details and reasons for seeking it that the competent authority can, Dhingra added, order the opening of the LOC.
As a corollary , Dhingra ruled that the person against whom the LOC was issued “must join investigation by appearing before the IO or should surrender before the court concerned“. That there were no such legal implications to Pillai's interception on January 11 other than the fact that her passport had been stamped with the word “offloaded”. This underlines the dodgy nature of the IB operation against an activist who had been named by it in its controversial report last year accusing NGOs of impeding development projects.
Can travel abroad for business despite LOC
MUMBAI: While allowing several people to travel abroad temporarily for business purposes, the Bombay high court has directed that look out circulars (LOC) issued against them at the instance of public sector banks will not come in their way.
Among those granted interim relief by a bench of Justices Gautam Patel and Madhav Jamdar on December 9 are Rihen Mehta, promoter-director of Dubai-based Global Green Bridge FZC, and son of Harshad Mehta of the Rosy Blue diamond group. The company had taken credit of AED 10 million from Bank of Baroda’s Dubai branch and Rihen Mehta was also a personal guarantor. In 2019 he returned to India with his family. In December 2019, BoB declared the company’s account a non-performing asset and initiated recovery proceedings. On January 13, 2020, Rihen Mehta was stopped at Mumbai airport on his way to New York.
The court heard petitions that challenged the LOC issued by the ministry of home affairs following an October 4, 2018, office memorandum (OM) where persons can be restrained from travelling if their departure is detrimental to the “economic interest of India”.
The OM allows the chairman of State Bank of India, and managing directors and CEOs of all other public sector banks to request the issue of an LOC.
The common complaint of the petitions is because an individual or corporate identity is indebted to a public sector bank, LOCs have been issued restraining their travel overseas.
While some petitioners have civil or recovery proceedings pending and others criminal proceedings, the bench said none “can be said to be absconding or fugitive” evading an arrest or a warrant. While some petitions challenged the LOC, two questioned the Centre’s power to issue such an OM, saying curtailing fundamental rights must be by statute or constitutional amendment and not by an executive order.
Additional solicitor general Anil Singh, with advocate Rui Rodrigues, said it is for each bank to justify its action in requesting an LOC. “The fact that a particular bank may have been wrong in making that request will not vitiate the office memorandum itself,” said Singh, adding there is no reason to question the power to issue such an OM. He also said the OMs address security concerns, are not a blanket infringement of fundamental rights and have inbuilt safeguards. Since there is a complete challenge to even the first OM of October 27, 2010, the judges posted the hearing on February 4.
In individual orders, they directed the petitioners to give their exact itinerary with contact details to the court.
HC will not grant them further travel permission unless they return to India. Immigration authorities at all points of departure will permit the petitioners to depart the country “without regard to any Look Out Circular issued at the instance of the bank”.