Watch Out for a Lookout: Empirical Study on Lookout Circulars

In simple terms, an LOC is an alert created by the Bureau of Immigration, Ministry of Home Affairs (BoI) at Indian ports of entry. The alert is in respect of a subject individual who is involved in a cognisable offence, against whom action is proposed. It is created pursuant to a request made by certain designated Indian authorities.

Consequences of an LOC may vary from tracking arrival and departure of the subject individual by the concerned authority to seeking detention of the individual, handing them over to the local police station and informing the authority concerned.

While LOCs prove to be an effective administrative measure in nabbing offenders who attempt to flee the country, if due process is not followed or if a request initiated by an authority for issuance of an LOC lacks justification, LOCs have been found to violate Article 21 of the Indian Constitution. Accordingly, depending on who you represent, these are key factors to be assessed at the outset of the proceedings.

LOCs do not owe their origin to any statute, although in a way the concept does find mention in the Passport Act, 1967, where designated officers are empowered to, inter alia, suspend passports and communicate such orders to immigration authorities for prohibiting travel.

Guidelines for issuing LOCs first emanated from a Ministry of Home Affairs letter dated 5 September 1979 (Letter No 25022/13/78-FI). The letter stated that LOCs were issued to check arrival/departure of foreigners and Indians “whose arrival/departure has been banned by the concerned authorities”. As per the letter, power to issue LOCs vested with eight Indian authorities, including:

Subsequently, an Office Memorandum dated 27 December 2000 (OM 2000) was issued by the Ministry of Home Affairs, and laid down fresh guidelines and a stepwise process for issuance of LOCs qua Indian citizens. As per the OM 2000:

The Delhi High Court in Sumer Singh Salkan v Asst Director, [ILR (2010) 6 Del 706] addressed key issues regarding issuance of LOCs, which included the following.

This includes cognisable offences under the Indian Penal Code, 1860 or other penal laws, where the accused was deliberately evading arrest or not appearing before trial court despite non-bailable warrants, and likelihood of the accused leaving the country to evade trial/arrest.

A written request is required to be made to the designated officer, giving details and reasons for seeking the LOC. Upon receipt and confirming the completeness of particulars, the competent officer shall issue directions for opening an LOC by way of an order.

The subject individual must join the investigation by appearing before the investigating officer, or surrender to the court concerned, as the case may be. If applicable, they should satisfy the authority that the LOC was wrongly issued against them. Upon being satisfied, the LOC may be withdrawn by the authority or rescinded by the court.

Taking into account the above directions, the MHA released another Office Memorandum dated 27 October 2010 (OM 2010) which laid down the following key guidelines.

Subsequently, by way of Office Memorandums dated 19 September 2018 and 4 October 2018, the office of the Serious Fraud Investigation Office and public sector banks (through the managing director or chief executive officer), respectively, came to be included in the list of officers who could request issuance of LOCs.

The present framework governing LOCs is incorporated in the Consolidated Guidelines issued by the Ministry of Home Affairs, recorded under Office Memorandum dated 22 February 2021, as per which:

An individual, if aggrieved by issuance of an LOC, can consider the following remedies.

Where the LOC is issued at the behest of an investigating officer, the subject individual may furnish a representation detailing reasons why the LOC should be withdrawn.

Certain studies suggest that if the LOC is issued in the context of a matter where trial is pending, an application may be filed for recalling/cancelling the LOC with the concerned court where trial is pending. However, since the subordinate court’s jurisdiction is commensurate with the jurisdiction of cancellation or affirmation of non-bailable warrants – and LOCs emanate from an administrative action, and cancellation or suspension of an LOC seeks enforcement of a fundamental right – the power to cancel or recall an LOC may not vest with the trial court. At best, the trial court may issue a direction to the investigating officer to consider recalling the LOC.

A subject individual can always approach a High Court under writ jurisdiction, as issuance of an LOC is an executive action which is open to judicial review by a High Court under writ jurisdiction. This has been categorically laid down in Karti P Chidambaram v Bureau of Immigration, [2018 SCC Online Mad 2229], wherein the Madras High Court held that power of judicial review under Article 226 of the Constitution includes the power to cancel an LOC.

While exercising powers under writ jurisdiction, High Courts have observed the following.

Where LOCs cannot be issued on a mere suspicion of opening bank accounts in a foreign country, this encroaches upon the fundamental right of a person to travel abroad.

Phrases such as “economic interest” or “larger public interest” cannot be expanded to include an independent director without any specific role being attributed to them and who was earlier associated with a company under investigation. This also ties in with the principle of vicarious liability of a director acting on behalf of a company.

Additionally, courts have also directed that a copy of the LOC, along with reasons for issuance, should also be made available to the subject individual, to be read as part and parcel of the Official Memorandums issued for issuance of LOCs [Noor Paul v Union of India, 2022 SCC OnLine P&H 3408].

The legal literature and case law relating to LOCs appears to suggest that while security and national interest of the country should not be jeopardised, and that LOCs should be used as an efficacious remedy for nabbing wrongdoers, innocent persons should nonetheless not be subjected to the arduous and cumbersome process.

The latter also has its roots in the process gap, which includes lack of inter-departmental communication and individual inefficiency. There are lacunas that must be bridged – for example, deletion of the LOC request once the mandate is fulfilled. At the same time, agencies and courts must exercise abundant caution in directing or issuing the opening of LOCs.

In parallel, legislative amendments may be considered, such as introducing a time-bound legal process (eg, 180 days) in deciding the issue of suspension of an LOC.