BACKGROUND
In 1971, the Ministry of Home Affairs (“MHA”) set up the Bureau of Immigration (“BoI”) as a border control agency. This was to check and monitor the entry and exit of all persons across all international check posts in India. These check points are the entry point into the country and last exit point and every person, Indian or foreign national must pass through an immigration check comprising of passport, citizenship status and visa checks. This process also serves an additional purpose, i.e. to check persons who may be wanted or may be a ‘person of interest’ to some law enforcement agency (police, Interpol, etc.) or who might be evading arrest or whose international movement needs to be watched, monitored, and where necessary prevented too[1].
Although BoI maintains a database with complete details, but it does not trigger or originate any look-out circular (“LOC”)[2]. It is only the custodian of the LOC, and entity responsible for maintaining the database of LOCs requested by the respective originating agency, and this arrangement is administrative in nature.
It appears that the first point of origination is in the Office Memorandum (“OM”) dated September 5, 1979 followed by the amendment in December 27, 2000. Thereafter, an OM was issued on October 27, 2010. This explains that LOCs are issued to keep a watch on the arrival and departure of foreigners and Indians, and as such they lapse after a year. In addition to the MHA, the following authorities were empowered to issue LOCs:
Sumer Singh Salkan v. Asst. Director & Ors[3]
The Hon’ble Delhi High Court considered a Petition seeking a recall of a LOC and Red Corner Notice issued by the Delhi Police and Interpol against the petitioner therein alleging that they were issued arbitrarily and a malafide exercise of power. After considering inter alia the foremost judgment regarding challenge to issuance of a LOC in the case of Vikram Sharma & Ors. v. Union of India & Ors.[4], the Hon’ble Delhi High Court held that:
Despite the clear guidelines laid down in Sumer Singh’s case (supra), the MHA issued the OM dated October 27, 2010 (“2010 OM”). This OM introduced a broad net under clause 8 (j) that, “in exceptional cases, LOCs can be issued without complete parameters and/or case details against CI suspects, terrorists, anti-national elements, etc. in larger national interest”.
The 2010 OM was amended a few times to introduce significant amendments summarized below:
Showik Indrajit Chakraborty v. Addl. Superintendent of Police & anr[5]
Earlier this year, Hon’ble Bombay High Court decided a bunch of petitions seeking quashing and setting aside/withdrawal of LOCs issued by the Central Bureau of Investigation (“CBI”). This arose out of an investigation taken over by the CBI regarding a suicidal death and other investigations connected to that incident. After examining the LOCs, the Hon’ble Bombay High Court clarified that LOCs cannot be issued as a matter of course, but only when there is/are reason(s) to issue the same, i.e., when a person deliberately evades arrest or does not appear in the trail court or for any other reason. Among other reasons for passing an order to quash and set aside the LOC, the Hon’ble Court considered and relied on the following:
Siddhartha Sudhir Moravekar v. SFIO & ors.[6]
In this case the petitioner was not an accused in the case registered by the Economic Offences Wing (“EOW”) and in the chargesheet filed by the EOW, but he was the son of an accused against whom a First Information Report (“FIR”) and chargesheet were filed. Pertinently, there was an investigation by the Securities and Exchange Board of India (“SEBI”), but the petitioner was not arraigned in this investigation too. In this case, the Hon’ble Bombay High Court directed the petitioner to submit an affidavit providing an undertaking to cooperate with the trial court and to remain present when summoned by the court and the agency (SFIO) and observed that merely stating that a person is a flight risk is not sufficient. Accordingly, the LOC was quashed and set aside by the Hon’ble Bombay High Court:
Saket Agarwal v. The Director, SFIO[7]
The factual matrix is somewhat similar to Siddhartha Sudhir Moraverkar’s case (supra), but in this case the SFIO made a statement that it had taken a decision to withdraw the LOC and did not provide any reasons for the same. Based on this statement the court disposed the Petition. One of the rare cases where SFIO withdrew the LOC.
NON-INTERFERENCE BY COURTS CONCERNING LOCs
Contrary to the above, in some cases courts have declined to interfere with the LOCs issued by investigation authorities. In Chaitya Shah v. Union of India & ors.[8], the Hon’ble Bombay High Court (Goa Bench) observed that:
In the connected investigation of Gitanjali Gems Ltd., the Bombay High Court in Ramesh Hiimatlal Shah v. Union of India & ors.[9] relied on the judgment of Chaitya Shah (supra). Although in Ramesh Himatlal Shah’s case, he along with his family are Indian residents, but the court did not defer from the principles laid down in Chaitya Shah (supra). Pertinently, there was an order issued by the Securities and Exchange Board of India (SEBI) that the petitioner did not supply true and complete information and the investigating agency needs to unearth various links, if he was permitted to travel abroad, the possibility of evading and hampering the investigation could not be ruled out.
AUTHOR'S COMMENTS
Although it appears that the recent trend of courts is to consider the facts and proceed to quash/set aside the LOCs issued by investigating authorities, but there are some instances wherein the court refuses to interfere with the issuance/renewal of the LOC. The authorities cite reasons such as an on-going investigation, flight risk, non-cooperation in the on-going investigation etc. to renew the LOC which the courts deal with while passing an order. From Chaitya Shah (supra) and Ramesh Himatlal Shah (supra) it is apparent that there is no distinction drawn when the petitioner is a non-resident and/or his family is residing overseas and his business is primarily carried on overseas. As such, this appears to be a clear restraint on personal liberty and remains to be ultimately decided by the Apex Court.
Having said that, the judgments of Chaitya Shah (supra) and Ramesh Himatlal Shah (supra) were prior in time to the recent judgments of Showik Indrajit Chakraborty (supra) and Siddhartha Sudhir Moravekar (supra), therefore, it appears that the focus is shifting towards setting aside unnecessary LOCs and they are being considered from the lens of personal liberty.
An anomaly to the above cases is Saket Agarwal (supra) wherein the investigating agency withdrew the LOC and did not provide any reasons for the same. But it appears that this is a clear fulfilment of the requirement of the originator seeking deletion/removal of the LOC.
This article has been written by Yuvraj Choksy (Principal Associate).
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[1] Viraj Chetan Shah v. Union of India & Ors. (Order dated April 23, 2024 in Writ Petition No. 719 of 2020).
[2] Viraj Chetan Shah v. Union of India & Ors. (Order dated April 23, 2024 in Writ Petition No. 719 of 2020).
[3] ILR (2010) VI Delhi 706.
[4] Vikram Sharma & Ors. v. Union of India & Ors. ((2010) 171 DLT 671).
[5] Showik Indrajit Chakraborty v. Addl. Superintendent of Police & anr (2024 SCC OnLine Bom 615).
[6] Siddhartha Sudhir Moravekar v. SFIO & ors (2024 SCC OnLine Bom 2323).
[7] Saket Agarwal v. The Director, SFIO (Order dated May 6, 2024 in Criminal Writ Petition No. 265 of 2021).
[8] Chaitya Shah v. Union of India & ors. (2021 SCC OnLine Bom 3967)
[9] Ramesh Hiimatlal Shah v. Union of India & ors. (Order dated July 5, 2022 in Writ Petition No. 3009 of 2021).
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