Sunday, July 3, 2016

Look Out Circulars and Arresting Persons

Most people outside of criminal practice don't know what a Look Out Circular [LOC] is. The LOC came into the spotlight last year with the Priya Pillai decision of the Delhi High Court, where the Court quashed an LOC against the Petitioner who was prevented by the Government from flying abroad to participate in a conference due to her associations with Greenpeace. What escaped many was how the Court in Priya Pillai left an important constitutional question open regarding the use of LOCs. In this post, then, I first briefly elaborate on what exactly is the LOC, before moving on to discuss that question.

What is the LOC?
A LOC or Look Out Notice is pretty much as the name suggests - a circular/notice asking authorities to be on the look out for a particular individual. The CBI Manual says the LOC is used to "trace absconding criminals and also to prevent and monitor effectively the entry or exit of persons who may be required by law enforcement authorities." Practice shows that the LOC is commonly sought by investigating officers in cases where the accused is suspected of being abroad. Judicial decisions emerge when the said accused persons challenge the LOC, and here we most courts stating that the purpose behind the LOC is to secure the presence of a person, and thus the LOC is ordinarily quashed if the accused appears before court and ensures cooperation with investigation. Importantly, the LOC has no statutory basis at all. It is apparently the creature of notifications issued by the Ministry of Home Affairs, which are unavailable in the public domain. This instrument can only be issued by officers of a certain rank in the Central or State governments. 

Culling out legal precepts from this description is the next step. What emerges is that usually, the person in respect of whom an LOC is issued is already an accused, having a FIR in place, and not a mere suspect. It may of course be the case that the person is not even a suspect and is the subject of some surveillance, as in Priya Pillai. Placing the effects of the LOC in terms of the Cr.P.C. is also required while thinking of how persons are commonly arrested when there is such a LOC against them. In cases where there is an FIR, the LOC is furnishing the police officer with a reasonable apprehension for arrest under Section 41 Cr.P.C. Where there is no FIR, an arrest would be occurring to prevent commission of offences under Section 151 Cr.P.C.  

Priya Pillai and Constitutionality of the LOC
In Priya Pillai, the Petitioner was offloaded from a flight based on an LOC issued against her by the Intelligence Bureau. The Petitioner was categorised as an 'anti-national' element. The basis for this according to the Union of India was that the Petitioner's NGO credentials created a distinct possibility that the Petitioner would speak against the Indian government abroad and affect the ability of the nation to inter alia attract foreign investment. This exercise of executive action was struck down as being contrary to the rights guaranteed under Articles 19(1)(a) and 21 of the Constitution. 

The Petitioner in Priya Pillai did not challenge the very constitutionality of the LOC but addressed this point during arguments. It was argued that there was no enacted law to situate an LOC within. Thus, violation of Article 21 rights on the basis of an LOC could not be justified as it did not amount to process established by law. The Court was taken by the argument and expressed 'serious doubts'  over whether the MHA Office Memorandum on which LOCs are based could be 'law'. But the Court left this question open, noting how any effective answer would require an assessment of the LOC with other statutes such as the Cr.P.C. and the Passports Act. 

Weighing up the arguments, I find that the Court itself provided a reasonable one in support of the constitutionality of LOCs. The Court observed how Section 41 Cr.P.C. requires reasonable suspicion of commission of cognizable offences to arrest. The LOC could be seen as supplying the basis for this suspicion, which would mean the deprivation of liberty itself won't be susceptible to challenge as it would continue to result from actions under the Cr.P.C. Similarly, since Section 151 Cr.P.C. does not specify how the police must justify its preventive arrests. One can argue that relying on the LOC to exercise that power would still mean liberty was deprived by acting within the Cr.P.C. framework. Looked at from the perspective of the arrested individual, it is argued that the regular Cr.P.C. protections would apply. Thus, the arrest would require the person be furnished reasons as required under Section 50, allowing for disclosure of the grounds contained within the LOC if not the LOC itself. Normal rules of production before a Magistrate within 24 hours of arrest would apply here too in light of Section 50 Cr.P.C. and Article 22 of the Constitution, where the State would again have to explain why the arrest was needed.

Thus, while I am a staunch supporter of grounding all possible coercive processes to secure presence of individuals in statute, it appears quite plausible to safeguard the constitutional validity of such non-statutory mechanisms of relaying information which ultimately results in deprivation of liberty.

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