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Explained: Aakar Patel asked not to leave India; who is a flight risk?

The CBI's Look Out Circular against former Amnesty India chief Aakar Patel continues to be argued in court. When is an LOC issued to prevent someone from leaving the country, and when can courts set it aside?

A Look Out Circular (LOC) is issued to prevent a person from leaving India. CBI has argued that Aakar Patel is a flight risk.

A district court in Delhi on Friday stayed a magistrate’s order directing the CBI to withdraw its Look Out Circular (LOC) against former Amnesty International India chief Aakar Patel, and asked him not to leave the country without the permission of the court.

Patel had approached the Additional Chief Metropolitan Magistrate’s court in Delhi on Thursday after he was stopped in Bengaluru from boarding a flight to the United States the previous night. After getting relief from the court, which also ordered the CBI director to apologise to him, Patel made a second attempt to leave on Thursday night, but was stopped again at immigration in Bengaluru.

Patel moved a contempt plea before the district court on Friday, while the CBI prayed for a revision of the city court’s order directing the agency to withdraw the LOC.

What is a Look Out Circular?

An LOC is issued to prevent a person from leaving the country. It is issued by various agencies and government bodies to the Bureau of Immigration (BoI) in a prescribed format with details of the person who it intends to prevent from going abroad. The BoI maintains a register of such circulars which is informally called the exit control list. Once a person against whom an LOC has been issued reaches immigration, the BoI is expected to inform the agency that has issued the LOC. The BoI is not authorised to arrest or detain anyone. The next course of action is decided by the agency that has issued the LOC. An LOC is valid for only one year and has to be reissued after it expires.

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Who can issue such a circular against a citizen of India?

According to the Ministry of Home Affairs, LOCs are initiated by a large number of authorised officers who include an officer not below the rank of Deputy Secretary to the Government of India; or an officer not below the rank of Joint Secretary in the State Government; or District Magistrate; or Superintendent of Police; or designated officers of various law-enforcing and security agencies; or designated officer of Interpol; or an officer not below the rank of Additional Director in SFIO, Ministry of Corporate Affairs; or an officer not below the rank of Chairman /Managing Director/chief Executive of any Public Sector Bank; or as per directions of any criminal court in India.

Apart from state police, LOCs can be issued by the CBI, National Investigation Agency (NIA), Enforcement Directorate, Narcotics Control Bureau, Directorate of Revenue Intelligence, Central Board of Direct Taxes, Central Board of Excise and Customs; the Intelligence Bureau; and Research & Analysis Wing.

Amnesty International India Chair Aakar Patel (File)

Under what circumstances is one issued?

Following a Delhi High Court order, in 2010, the MHA issued an office memorandum that said recourse to LOC was to be taken in “cognisable offences under IPC (Indian Penal Code) or other penal laws”. It said the issuing agency is supposed to provide reasons for opening an LOC in the prescribed proforma “without which the subject of an LOC will not be arrested/detained”.

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In cases where there is no cognisable offence under IPC or other penal laws, it said, “the LOC subject cannot be detained/ arrested or prevented from leaving the country. The originating agency can only request that they be informed about the arrival / departure of the subject in such cases.”

Before this office memorandum was issued, the Delhi High Court had issued certain guidelines on LOCs in connection with a case it was hearing. While it had mentioned the need for a cognisable offence, it had said an LOC was to be issued “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.”

The Home Ministry’s office memorandum in 2010 added another category of “exceptional circumstances”, where an LOC can be issued without complete parameters and /or case details against “terrorists, anti national elements, etc in larger national interest”.

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What law governs the issuance of an LOC?

There is no specific law. An LOC is issued based on guidelines set by the Home Ministry through letters and office memorandum issued in 1979, 2000 and 2010. In several court cases, the alleged misuse of the power to issue an LOC has been argued and it has been said that the inappropriate exercise of the power is due to absence of a law governing it.

A case in point is that of Greenpeace campaigner Priya Pillai, who was prevented from flying to London in 2015 based on an LOC opened against her by the Intelligence Bureau, which had categorised her as “an anti-national element”. Pillai was supposed to address British parliamentarians against a mining project in Madhya Pradesh. The LOC was eventually quashed by Delhi High Court, calling it “illegal” and observing that having a different opinion on a development project does not make one anti-national.

Does the subject have the right to be informed about the reasons for the LOC?

There is no guideline regarding this mentioned in any government order. While the LOC-issuing authority has to record the reasons in the prescribed proforma to be given to the BoI, there is no specific provision for informing the subject. Since there is no law governing issuance of LOC, this is a grey area.

“Fundamentally, an LOC is not to be issued against anyone and everyone who is accused of a crime. The intention is to prevent a person not cooperating with investigations from flying abroad. It is immaterial whether a person evading an investigating agency is aware of an LOC or not,” a CBI officer said.

Does an LOC mean you can be arrested?

The aim of LoC is merely to prevent a person from leaving the country. Once that is prevented, the BoI informs the concerned agency, which may or may not arrest the person. “The idea of LOC is to ensure episodes like Vijay Mallya and Nirav Modi do not happen, where big offenders leave the country never to return. After they are stopped, they may be just asked to join the investigation and not really arrested,” said an MHA official.

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Patel had a Surat court’s permission to travel abroad. Why was he stopped in Bangalore on the basis of the CBI’s LOC?

That case, in which Patel’s passport was impounded, was registered by Gujarat police for an alleged offence regarding a social media post. Patel appealed to the Surat court, got his passport released and even took permission to fly to the US. However, in no criminal jurisprudence can a judgment in one case automatically apply to another. The case in which an LOC was issued was a different one, and registered by a different agency, the CBI. For this, Patel was supposed to take separate permission from the designated CBI court in Delhi.

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When can a court set aside an LOC?

Courts can quash an LOC if it has not been issued in the prescribed format, or by the authorised agency or officer. It can also set aside an LOC if it feels the grounds for issuance of the LOC are not fulfilled. This basically means if the court is of the opinion that despite a criminal case against the subject, he or she is not a flight risk and has been cooperating with the investigating agency, it might quash the LOC.

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First published on: 09-04-2022 at 03:50 IST
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