New Delhi: Taking note of the fact that Lookout Circulars (LOCs) are indiscriminately being issued by operating agencies to prevent foreign travel of accused persons without proper and sufficient justification, the Rajasthan High Court has come out with guidelines.
A single-judge bench of Justice Arun Monga Thursday ruled, “LOCs are being indiscriminately issued/continued at the instance of the operating agencies to prevent the foreign travel of the accused persons without proper and sufficient justification. This causes lot of harassment, humiliation and expenditure to the persons adversely affected by such LOCs. They have to run from pillar to post including approaching the Courts for relief (sic).”
Resultantly, there is considerable addition to the administrative work of the concerned authorities and of the courts and, ultimately, this is against the “larger public interest”, the court said, adding that it was appropriate to formulate and lay down guidelines to keep in mind while issuing LOCs.
For instance, citing the Supreme Court’s 1978 landmark ruling in Maneka Gandhi vs Union of India, the court said that the issuance or continuation of an LOC effectively suspends or invalidates the individual’s passport or travel document, restricting foreign travel—a fundamental right which has been recognised as a part of Article 21. Similarly, if no cognizable offense is involved, the passport holder cannot be detained or prevented from leaving the country.
In the present case—Abhayjeet Singh vs State of Rajasthan—the Rajasthan HC was dealing with a petition challenging an LOC, issued against the petitioners in October 2012 in connection with offences under Sections 323, 406 and 498A of the Indian Penal Code (IPC). The sections deal with punishment(s) for voluntarily causing hurt and criminal breach of trust along with cruelty inflicted on a woman by her husband or his relatives.
The LOC in question was issued by the Bureau of Immigration under instructions of the police, which was the operating agency, in this case, after an FIR was registered in a marital dispute. The FIR was also registered after the victim-wife’s brother levelled allegations of cruelty, criminal breach of trust and dowry against her husband.
After the FIR was registered and the police were looking to arrest the husband’s family, the LOCs were issued by the Immigration Bureau against them. Despite being granted anticipatory bail, the LOCs were not withdrawn. Resultantly the woman’s father-in-law was intercepted at the Airport and made aware about these circulars being issued.
Subsequently, the in-laws of the aggrieved wife approached the court, saying they were being treated like “hardened criminals” solely on the basis of allegations made by the victim’s brother, while adding that she herself had not filed any complaint against them.
The court said it was “intriguing” as to why the aggrieved wife, who is highly educated, well-aware of her rights and capable of asserting the same, could not herself take any initiative to prosecute her husband and in-laws, given the nature of allegations and the suffering being purely personal in nature.
What did the court rule?
In a 30-page order, the Rajasthan HC analysed the 2013 anticipatory bail order, where the public prosecutor had said that no further investigation was required as the chargesheet was already filed in the case.
Recalling another 2016 order by the trial court which had discharged the elderly in-laws and led to the withdrawal of the LOC against them, the court pointed out that the police were aware of this but still declined to withdraw the LOC against the husband.
The court underlined that the husband was forced to approach the court four times to protect his fundamental right to travel. Of these, once was on 2 September this year, when the court had directed the police to issue a no-objection certificate to allow him to obtain a passport valid for 10 years. However, the court said that this too proved to be futile as during the subsistence of the LOC against him, his passport was rendered a meaningless document.
What is an LOC?
Although formally the term LOC has not been mentioned or defined in law, its origins can be traced to The Passports Act, 1967, the court said in its 18 October ruling, this year.
Section 10 broadly pertains to the variation, impounding and revocation of passports and travel documents. It allows the passport authority “to impound, cause to be impounded or revoke a passport or travel document” in certain circumstances.
For instance, if the passport authority deems it necessary to do so in the interests of the sovereignty, security and integrity of India, or friendly relations with any foreign country, or in the interests of the general public, it can impound or revoke passports, among other things. Similarly, if proceedings for an offence allegedly committed by the holder of the passport or travel document are pending before a criminal court in India, the travel documents can be impounded.
On the other hand, Section 10A allows the Centre or designated officer to pass orders which may have the effect of rendering any passport or travel document invalid, if satisfied that one’s passport is likely to be impounded or revoked.
After analysing the Passport Act provisions, the court went on to explain that the actual origins of the term “LOC” lay in a notification issued by the Ministry of Home Affairs in 1979.
The concept of LOC is an “invention” of the Ministry of Home Affairs, when for the first time it issued an office memorandum on 5 September, 1979, the court said in its 18 October ruling.
Adding that the practice of issuing LOCs commenced and was originally governed by the Home Ministry’s 1979 letter, the court said that besides the Ministry of Home Affairs, circulars have been issued by various other authorities like the Ministry of External Affairs, Customs and Income Tax Departments, and the CBI, for keeping a watch on arrivals and departures of Indians and foreigners.
Referring to an office memorandum issued on 27 December, 2006, by the MHA, the court said this was the first time that steps for initiating an LOC against Indian citizens were detailed.
“The request for opening of LOC must invariably be issued with the approval of an Officer not below the rank of Deputy Secretary to the Government of India / Joint Secretary in the State Government / concerned Superintendent of Police at district level,” the memorandum had said.
Finally, the court said that it would be appropriate to formulate and lay down guidelines to be considered and followed by the concerned authorities or operating agencies for causing the issuance or continuance of LOCs.
The guidelines
By way of these guidelines, the court emphasised that the right to travel abroad is a fundamental right under Article 21 of the Constitution, while relying on the 1978 judgment in Maneka Gandhi vs. Union of India. It added that the issuance or continuation of an LOC effectively invalidates an individual’s passport and “should not be taken lightly or in a casual manner”.
It went on the add that an order for issuing an LOC can only be passed by the originating agency (OA) in cognizable offences, that is offences where arrest can take place without a warrant, under the IPC or other penal laws, where the accused or under trial, is deliberately evading arrest or not appearing in the trial court. Essentially, when there is likelihood of the accused leaving the country to evade trial or arrest, and they are accused of committing a cognizable offence, an order can be passed for issuing the LOC, it said. However, the originating agency must record the reasons and grounds for believing that the passport is likely to be impounded or revoked by the passport authority, such as in the interests of sovereignty, integrity, or security of India or in the interest of India’s friendly relations with a foreign country or even in general public interest.
Importantly, the court said that in cases where the person has been granted bail, the LOC order mustn’t conflict with or override the terms or bail conditions. It also clarified that if no cognizable offense is involved, the passport holder or the subject of LOC, cannot be detained or prevented from leaving the country.
The guidelines also state that the order passed by the OA for issuing an LOC “must specifically state that initial validity of an LOC shall not exceed four weeks” and that any extension must be justified in writing by the OA.
Finally, the court directed the Home Secretary of the Government of Rajasthan, and the Director General of Police, Rajasthan, to take appropriate steps to sensitise the concerned operating agencies—all joint secretaries, all district magistrates and superintendents of police, of state government—and to convey the guidelines to them.
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