Look out circulars:India
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High Court guidelines:2010
Jan 14 2015
Abhinav Garg
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?
Manoj Mitta
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.
