2022 (8) TMI 1511 - HC - Indian Laws

Lookout Circular under Sections 10A and 10B Passports Act 1967 upheld for POCSO accused

Harshavardhana Rao K. Versus Union of India and Ors.

The Karnataka HC dismissed a petition seeking recall of a Lookout Circular (LOC) that restricted the petitioner's international travel. The court held ... Recalling of Lookout Circular - permission to travel beyond the shores of this nation - restriction on travel of the petitioner beyond the shores of this nation on the strength of a LOC - HELD THAT:- LOC issued by Government of India is required to be noticed for a resolution of the lis. Before considering the issue, it is germane to notice the protagonist that would come about in the execution of LOC. LOC is issued by the Police or the Court in some circumstances. Therefore, they are referred as the originator. LOC is transmitted to the Bureau of Immigration to execute the said LOC and the person against whom LOC is issued is the subject of the LOC. Therefore, originator, originates LOC against the subject and transmits the same to the executant viz., Bureau of Immigration - Once LOC is issued, the Immigration Authorities are bound by the mandates of the said circular to stop the subject, from travelling beyond the shores of the nation for whatever purpose it would be and the Bureau of Immigration would continue to stop every time he seeks to travel, till subsistence of LOC, as it has to be recalled or withdrawn by the originator, the State Police. It is thus a powerful tool at the hands of the State to direct Bureau of Immigration to stall the march of travel of a subject of LOC beyond the shores of the nation. The right to travel, which is a vested right of Article 21 of the Constitution of India, would be taken away by the act of issuance of LOC. Therefore, it is germane to notice the genesis and progress of LOC issued from time to time. The LOC has no specific legal definition. Statutory sanction for issuance of LOC can be traced to Section 10A and 10B of the Passports Act, 1967. It is this stand that is being taken by Government of India in all the constitutional courts where LOCs have been questioned. The object for issuance of LOC is to ensure that the subject of LOC becomes available for interrogation, trial or any inquiry - the contention of the learned counsel for the petitioner that a notice ought to be issued to the subject of the LOC prior to issuance of LOC deserves to be rejected. If the facts of the case are considered on the bedrock of what is considered hereinabove, it would depict that, the petitioner wants to travel on account of his official duty. The case registered against him no doubt is for offences punishable under the POCSO Act and the case is not stayed or quashed by any competent court of law, since the impugned crime is neither eclipsed nor extinguished, by any competent judicial fora, the prayer of the petitioner for a direction to recall the LOC cannot be granted. All that the petitioner would be entitled to, in such a case, would be the knowledge of the reason for stalling his travel i.e., a copy of the LOC issued against him. The bail is granted subject to conditions imposed - petition disposed off. Issues Involved:1. Issuance and validity of Lookout Circular (LOC)2. Right to travel as a fundamental right under Article 21 of the Constitution of India3. Procedural requirements and principles of natural justice concerning LOC4. Conditions for issuance, subsistence, and deletion of LOC5. Post-decisional hearing and procedural fairnessIssue-wise Detailed Analysis:1. Issuance and Validity of Lookout Circular (LOC):The petitioner sought a writ of mandamus to direct the Deputy Commissioner of Police to recall the LOC issued in connection with Crime No. 145 of 2021, which prevented him from traveling abroad. The LOC was issued following allegations of sexual abuse under Sections 376AB of the IPC and various sections of the POCSO Act. The petitioner was stopped at Bangalore International Airport due to this LOC.2. Right to Travel as a Fundamental Right:The petitioner argued that the right to travel is a fundamental right under Article 21 of the Constitution of India. He emphasized that he needed to travel for official duties and that the LOC was issued without prior notice or a copy being served to him. The court acknowledged that the right to travel abroad is a facet of personal liberty under Article 21, but it is not an absolute right and can be curtailed under certain conditions.3. Procedural Requirements and Principles of Natural Justice Concerning LOC:The court examined the procedural framework for issuing LOCs, as outlined in various official memoranda and guidelines. It noted that LOCs can be issued by the police or court and are executed by the Bureau of Immigration. The guidelines stipulate that LOCs can be issued in cognizable offenses where the accused is evading arrest or not appearing in court despite non-bailable warrants and other coercive measures. The court emphasized that the issuance of LOCs must comply with principles of natural justice, which include informing the subject of the LOC about the reasons for its issuance at the time of apprehension.4. Conditions for Issuance, Subsistence, and Deletion of LOC:The court referred to the guidelines issued by the Government of India, which provide detailed procedures for the issuance, subsistence, and deletion of LOCs. These guidelines require that the originator of the LOC must review it periodically and inform the Bureau of Immigration if the LOC is challenged or stayed by a court. The court highlighted that the LOC must be based on valid reasons, and the subject of the LOC should be informed about these reasons when they are stopped from traveling.5. Post-decisional Hearing and Procedural Fairness:The court rejected the petitioner's contention that he should have been given prior notice before the issuance of the LOC. It cited the Supreme Court's decision in *Maneka Gandhi v. Union of India*, which held that while prior notice may not be required, a post-decisional hearing must be provided to ensure procedural fairness. The court reiterated that the subject of an LOC must be informed about the reasons for its issuance when they are stopped from traveling, ensuring that the principles of natural justice are upheld.Conclusion:The court directed the Deputy Commissioner of Police to consider the petitioner's representation for recalling the LOC and pass appropriate orders within six weeks. The court emphasized that the petitioner should be provided with a copy of the LOC and the reasons for its issuance at the time of apprehension, ensuring compliance with principles of natural justice. The writ petition was disposed of with these directions.