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Look Out Circulars - An Introduction

India
January 19 2022
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 t aken by t he St at e t o rest rict and regulat e t he movement
of persons accused of cognizable offences who are required t o face criminal prosecut ion in India. In
cert ain except ional circumst ances, LOCs may also be issued against wit nesses and suspect s in t he larger
public int erest t o secure t heir at t endance during invest igat ions.
Law enforcement agencies use LOCs as a punit ive or rest rict ive t ool t o: (i) coerce surrender t o
invest igat ive agencies or court s; (ii) secure at t endance before invest igat ive agencies or court s; or (iii)
monit or or report t he movement of persons t o prevent t hem from ent ering or leaving t he count ry. A LOC
ent ails t he arrest or det ent ion of a person as soon as he is t raced at an airport or marit ime port and t heir
handover t o t he relevant agency.
Framework for issuance of LOCs
LOCs are a creat ion of t he Execut ive and were earlier regulat ed by a let t er issued by t he Minist ry of Home
Affairs (MHA) dat ed 5 Sept ember 1979 (Letter of 1979) read wit h an office memorandum issued by t he
MHA on 27 December 2000 (2000 O.M.). The 2000 O.M. left much t o t he discret ion and wisdom of t he
issuing aut horit ies and t he court s dealing wit h t he LOCs. This led t o: (i) t he indiscriminat e use of powers; (ii)
a lack of clarit y re t he issuance of LOCs; and (iii) confusion as t o t he procedure t o be followed for
issuance of LOCs and t he remedies available against such issuance. Given t hese issues and t he absence of
a comprehensive mechanism dealing wit h LOCs, t he Delhi High Court set out t he following guidelines for
t he issuance and closure of LOCs:
a. An invest igat ing agency may request t he issuance of a LOC when a person accused of a cognizable
offence deliberat ely evades arrest or does not appear before t he t rial court despit e t he issuance of a
non-bailable warrant (NBW) and it is likely t hey will leave t he count ry t o evade t rial or arrest ;
b. The invest igat ing officer must submit a det ailed, reasoned, writ t en request t o t he MHA based on which
t he MHA will, t hrough a reasoned order, direct t he issuance of a LOC;
c.The person against whom a LOC is issued must : (i) join invest igat ion; (ii) surrender before t he concerned
court ; or (iii) ask t he court or compet ent officer t o set aside t he LOC as being issued wrongly. The issuing
aut horit y or t he concerned court can wit hdraw or rescind t he LOC on an applicat ion by t he concerned
person.
d.The jurisdict ion of t he court in affirming or cancelling a LOC is commensurat e wit h t he jurisdict ion of
cancellat ion or affirmat ion of NBWs.
The MHA has since subst it ut ed t he 2000 O.M. wit h an Office Memorandum dat ed 27 Oct ober 2010 (2010
O.M.). While t he 2010 O.M. does conform wit h cert ain principles laid down by t he court s, grey areas as t o
t he power and process t o issue LOCs and t he const it ut ional validit y of LOCs remain. As a consequence,
LOCs cont inue t o be issued wit h relat ive ease, part icularly for whit e collar crimes including against persons
who were merely suspect ed of being involved in offences. In addit ion t o t he LOCs issued against Indian
nat ionals, approximat ely 41,000 LOCs were issued against foreign nat ionals bet ween 2018 and 2020.
Issuance of LOCs
The Invest igat ing Officer or Aut horised Officer of an agency empowered by t he 2010 O.M. may, in writ ing
and specifying t heir reasons, request t he Bureau of Immigrat ion t o issue a LOC. Addit ionally, public sect or
banks may request t he issuance of LOCs t o prevent wilful default ers from evading t he process of law.
Wit h t he issuance of t he 2010 O.M., st at ut ory commissions (like t he Nat ional Commission for Women,
Nat ional Human Right s Commission, et c.) may request t he issuance of LOCs t hrough law enforcement
agencies. However, request s from st at ut ory commissions must be assessed by t he relevant enforcement
agencies before being forwarded t o t he Bureau of Immigrat ion.
Validit y of LOCs
LOCs are valid for a period of 1 year from t heir dat e of issuance and lapse aut omat ically unless: (i) a
request for renewal is made t o t he Bureau of Immigrat ion; (ii) t he LOCs have been issued pursuant t o an
order of court of law and, or, Int erpol; (iii) t he LOCs are in respect of loss or impounding of passport ; or (iv)
t he LOCs are t o monit or t he ent ry of an absconder int o t he count ry.
A LOC generally st ands closed when t he NBW has been execut ed or t he person concerned is t aken int o
cust ody. Court s have, t herefore, repeat edly set aside LOCs against persons t aken int o cust ody, including
t hose subsequent ly released on bail, and have reject ed argument s t o t he effect t hat LOCs merely
facilit at e t he imposit ion of t he rest rict ive condit ions on t ravel imposed by court s.
Persons against whom LOCs can be issued
Per t he 2010 O.M., LOCs can be issued against persons accused of a cognizable offence only when: (i)
t here is a NBW pending against t hem; and (ii) t hey are likely t o evade t he process of law. However,
relaxat ions were grant ed for issuance of LOCs against t errorist s, ant i-nat ional element s, count er-
int elligence suspect s, et c. in t he ‘larger national interest’ (exceptions).
The 2010 O.M. was amended in 2017 t o expand t he scope of t he except ions by:
1. Permit t ing t he issuance of LOCs in cases having pot ent ial of hampering “…bilateral relations between
countries…” or “…denting the economic interests of the country…”;
2. Subst it ut ing t he t erm ‘larger national interest’ wit h ‘larger public interest’; and
3. In ‘exceptional circumstances’, rest rict ing t he depart ure of a person if t he request ing agency
believes t hat it would be det riment al t o t he sovereignt y, int egrit y or securit y of India, or t he person
may indulge in t errorism or offences against St at e or ot herwise in larger public int erest .
The request ing agency must demonst rat e t he exist ence of ‘exceptional circumstances’. The absence of
any object ive crit eria under t he 2010 O.M. for det ermining t hese ‘exceptional circumstances’ has oft en
been abused by t he request ing agencies when issuing LOCs during financial fraud invest igat ions cit ing t heir
adverse impact on t he economy. The court s have oft en crit icised t his pract ice of first issuing LOCs and
t hen failing t o demonst rat e t he applicabilit y of t he except ions, holding such act ions t o be violat ive of
Art icles 19 and 21 of t he Const it ut ion of India. That said, t he pract ice of indiscriminat ely issuing LOCs on
t he basis of t he except ions cont inues.
Remedies against a LOC
A person against whom a LOC is issued may:
1. approach a compet ent court seeking cancellat ion and, or, revocat ion of t he LOC; or
2. writ e t o t he issuing aut horit y seeking cancellat ion of t he LOC
on t he ground t hat t he LOC has been wrongly issued.
As a LOC infringes t he fundament al right t o personal libert y and movement , a person may also file a writ
before t he High Court . However, t he High Court s are generally reluct ant t o ent ert ain writ s and direct t he
aggrieved persons t o first approach t he concerned criminal court t o seek appropriat e relief. In cert ain
cases, t he High Court s have refrained from exercising t heir ext raordinary jurisdict ion when t he invest igat ing
agencies have made out a prima facie case for issuance of t he LOC, alt hough t hey have also act ively
int erfered in cases where grave illegalit y in t he issuance of a LOC has been found. Experience
demonst rat es t hat successful challenges t o LOCs are not rare.
What lies ahead?
The 2010 O.M. is not a comprehensive code and t he court s oft en have t o det ermine t he validit y of LOCs
or fill in t he procedural gaps. It is t hus essent ial t hat an all-encompassing st at ut ory framework is
implement ed t o regulat e all aspect s of issuance of LOCs, eit her t hrough a new st andalone st at ut e or by
necessary amendment s in t he Code of Criminal Procedure, 1973. The framework must prescribe: (i) a
comprehensive definit ion of a LOC; (ii) t he paramet ers for issuing a LOC; and (iii) guidelines t o det ermine
‘exceptional circumstances’. Discret ion of request ing agencies should be kept t o a minimum t o prevent t he
indiscriminat e use of powers. Codifying t he framework will also address concerns as t o t he
const it ut ionalit y (or lack t hereof) of LOCs, which we will discuss in our next art icle.
At t he same t ime, it is also essent ial t hat agencies, bot h request ing and issuing, are saddled wit h higher
responsibilit y and penal consequences ensue against any misuse or abuse of t he powers t o issue LOCs. A
similar move by t he Supreme Court in Arnesh Kumar v. State of Bihar has been arguably effect ive in
curbing arbit rary arrest s.

Bharucha & Part ne rs -

Sonam G upta, Manu Mishra and Ayesha Bharucha