LOOK OUT CIRCULAR

[Mr. M. GOVINDARAJAN]

Lookout Circular

The Lookout Circular (‘LOC’ for short) is opened to trace the absconding criminals and also to prevent and monitor effectively the entry or exit of persons who may be required by law enforcement authorities.

Section 41A was inserted in the Criminal Procedure Code (‘CrPC’ for short) vide amendment act 2008.  Section 41A provides that-

• The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
• Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.  
• Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. 
• Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.

Powers of Authority

While issuing notice under section 41A of the CrPC, the Investigating Authority has got inherent power to take necessary steps to see that the accused in the case don’t leave the jurisdiction and co-operation with the inquiry.  A recourse to the LOC is taken by the Investigating Agency in cognizable offences under Indian Penal Code or other penal laws where the accused deliberately evading arrest or not appearing before the authorities and there was a likelihood of the accused leaving the country to evade trial or arrest. The LOC are one of the coercive steps to make a person to surrender to the investigating agency.

Guidelines

The basic substantive guidelines regarding the publication of the LOCs in relation to Indian citizens issued by the MHA enunciate the following four cardinal principles-

• The request for opening of LOC is required to be made to all immigration Check posts in the country in the Official Format prescribed by the MHA.
• 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/Superintendent of Police concerned at the district level.
• The originating agency must ensure that complete identifying personal particulars of the person, in respect of whom the LOC is to be opened, are clearly mentioned in the prescribed proforma. The LOC will not be opened for less than three identity parameters other than name of the subject.
• An LOC is valid for a period of one year. However, in case the originating agency wants to extend the validity beyond one year it can ask for the extension before the expiry of the one year period. If no request is made for the extension of the LOC within the stipulated period of one year, the Immigration Officer concerned is authorized to suspend the LOC.

LOC sometimes may issue without following the guidelines mentioned in the Official Memorandum.  The affected person may approach the Human right commission or higher courts and demand compensation for loss and suffering if any.

LOC by National Commissioner for Women?

The High Court of Delhi, in Writ Petition (Civil) No. 10180 of 2009 ‘Shri Vikram Sharma vs. Union of India and Ors.’ [2010 (7) TMI 1178 - DELHI HIGH COURT], considered the question whether a request for the issuance of an LOC could be made by the National Commission for Women (NCW). While disposing of the said Writ Petition, the High Court, in its order dated 26.7.2010, observed that a request for the issuance of an LOC could not have emanated from the NCW. It had to come from either the Central or the State Government and that too only in the prescribed form and then again only by the officers of a certain rank. In this context, while criminal courts dealing with cases of criminal law enforcement can issue directions, which may result in the issuance of an LOC, there is no such power vested either under the Cr.P.C. or the Passports Act or under the MHA's circular, in statutory bodies like NCW. Being granted the powers of a civil court for a limited purpose does not vest the NCW with the powers of a criminal court and it has no authority as of today to make a request for the issuance of an LOC.

The Court further observed that there are a large number of statutory commissions at the level of the Centre and the States which perform judicial functions and are vested with, for the purpose of conducting inquiries upon receiving complaints, the powers of a civil court. These include the National Human Rights Commission (NHRC), the NCW, the National Commission for Protection of Children's Rights. These statutory bodies, however, have not been vested with the powers of a criminal court and do not have powers to enforce criminal law. It is for the Government of India to take a policy decision on whether it wants to vest such statutory tribunals/commissions with criminal law enforcement powers. Since as of today, they have no such power, it is imperative that the MHẢ should issue further clarificatory circulars or office memoranda clearly stating that the request for issuance of LOCs cannot 'emanate' from statutory bodies like the NCW. If at all, such bodies should bring the necessary facts to the notice of law enforcement agencies like the police, which will then make the request for issuance of an LOC upon an assessment of the situation, and strictly in terms of the procedure outlined for the purpose.

Clarifications by Delhi High Court

In a related judgment delivered on 11.8.2010 by the High Court of Delhi in W.P. (Crl.) No. 1315/2008-‘Sumer Singh Salkan v. Asstt. Director & Ors ’ and Crl. Ref.1/2006-Court on its Own Motion Re: ‘State Vs. Gurnek Singh etc.[2010 (8) TMI 1083 - DELHI HIGH COURT],’ the Court has answered four questions raised by a lower court on the LOC. These questions are as below:

1.   What are the categories of cases in which the investigating agency can seek recourse of Look-out-Circular and under what circumstances?

2.   What procedure is required to be followed by the investigating agency before opening a Look-out-Circular?

3.   What is the remedy available to the person against whom such Look out-Circular has been opened?

4.   What is the role of the concerned Court when such a case is brought before it and under what circumstances the subordinate courts can intervene?

The High Court has answered these questions in its judgment dated 11.8.2010 which are reproduced below for guidance of all concerned agencies:

1.   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 trial/arrest.

2.   The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs, giving details & reasons for seeking LOC. The competent officer alone shall give directions for opening LOC by passing an order in this respect.

3.   The person against whom LOC is issued must join investigation by appearing before I.O. or should surrender before the court concerned or should satisfy the court that LOC was wrongly issued against him. He may also approach the officer who ordered issuance of LOC & explain that LOC was wrongly issued against him. LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending or having jurisdiction over concerned police station on an application by the person concerned.

4.   LOC is a coercive measure to make a person surrender to the investigating agency or Court of law. The subordinate courts' jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs.

Validity of LOC

In ‘Abdul Kadir Najmudin Sathak v. Union of India’ – 2019 (5) TMI 644 - MADRAS HIGH COURT the petitioner was detained by Immigration Authorities at Delhi Airport, while trying to board a flight to Nepal.  The LOC was issued against the petitioner as a precautionary measure so as to ensure his presence for carrying out further investigation in the matter, there being a possibility of the petitioner fleeing from India.  The petitioner accepted and acted upon the LOC and appeared for several times before the authorities concerned.  The passport and the mobile phones were returned to the petitioner.  The petitioner challenged the validity of LOC issued against him.  He contended the following before the High Court-

• A request for issuance for LOC had to come from either the Central Government or the State government and that too only in the prescribed form duly signed by the officer of certain rank.
• In this case the LOC is not produced before the Court.

The respondent submitted that there was a possibility of the petitioner fleeing from India and hence as a precautionary measure a LOC was issued against him so as to ensure his presence for carrying out further investigation in the matter.  As such he was detained by Immigration Authorities at Delhi Airport, while he was trying to board a flight to Nepal.

The High Court observed that the LOC seems to have been issued only based on the FIR registered under the Prevention of Money Laundering Act and the Unlawful Activities Prevention Act, 1967 and therefore the legality of LOC has to be considered having regard to the circumstances prevailing as on the date, on which, the request for issuance of LOC is made.  The petitioner had accepted and acted upon the LOC and appeared for several times based on the summons issued.  Hence the petitioner cannot challenge the legality or validity of the LOC.   The writ petition was filed before the High Court challenging the validity of LOC after almost more than a year long enquiry was being conducted.  The High Court held that the LOC cannot be quashed at this stage.   However the High Court directed the respondents to complete the enquiry as expeditiously as possible.