In Rhea Chakraborty ("Petitioners") v. Union of India ("Respondents") [Criminal Writ Petition No. 3885 of 2023], the Bombay High Court ("the Court")recently reiterated that Look Out Circulars ("LOC(s)") are coercive measures that cannot be issued as a matter of course, but only when there are reasons to issue the same i.e., when a person deliberately evades arrest or does not appear in the trial court or for any other reason.
FACTS
The Petitioners filed the present batch of petitions inter alia for the quashing of LOCs issued against them by the Central Bureau of Investigation ("CBI"), in the course of its investigation into the death of actor Sushant Singh Rajput. Pertinently, the Petitioners had recorded their statements with the CBI and had not been summoned by the CBI since September 2021.
SUBMISSIONS
The Petitioners argued that the right to travel abroad is a fundamental right under Article 21 of the Constitution of India, and as such, the continuation of LOC against them for more than 3.5 years was an infringement of their right(s)thereunder. It was submitted that the Petitioners had cooperated with the investigation conducted by the CBI and therefore there was no reason for the LOC to be kept open against them. Lastly, the Petitioners averred that they had roots in the society and therefore it could not be said that there was any possibility of the Petitioners absconding or evading arrest.
On the other hand, the Respondents argued that the LOCs against the Petitioner ought not to be quashed in view of the ongoing investigation of the CBI. It was submitted that as such, it was open to the Petitioners to file appropriate application for permission to travel abroad whenever required.
ISSUE
Whether the LOCs issued by CBI against the Petitioners were liable to be quashed and set aside.
FINDINGS
At the outset, the Court noted that the present case was not a case where the Petitioners had attempted to evade summons / arrest, since the Petitioners had always cooperated with the investigation, and attended the office of the CBI, whenever called upon to do so. Placing reliance on Clause (H) of the Office Memorandum dated February 22, 2021 governing the issuance of LOCs ("LOC Guidelines") in India, the Court observed that for issuance of LOC, it was imperative that the reason(s) for issuing LOC be provided in Column IV of the 'Request for opening LOC' (viz. the Proforma application) made by the investigating agency. However, upon its review of the LOCs issued in the present case, the Court observed that no reason had been disclosed by the CBI, despite the same being mandatory under Clause (H) of the LOC Guidelines. In this regard, the Court found that only the FIR Number and the gist of the FIR had been mentioned in Column IV. Opining that "Mere mentioning of an FIR or mentioning the gist of the FIR is not sufficient and can never be a reason for issuing an LOC", the Court held that for issuing an LOC, it was mandatory for the requesting agency to record its satisfaction as to its apprehension or any other reason, if any. Accordingly, the Court held that the conditions precedent for LOC under the LOC Guidelines had not been met in the present case, in so far as the CBI had failed to provide the 'reason' for issuing the LOC in the LOC and there was nothing on record to show that LOCs had been periodically reviewed, as required under Clause (J) of the LOC Guidelines.
Further, the Court also observed that although the LOCs were opened in August2020 with respect to a case registered by the CBI on August 6, 2020, the CBI had not concluded its investigation till date or filed a chargesheet / closure report in respect of the same. Noting that LOC was a coercive measure which curtailed the fundamental right of an individual to travel under Article 21 of the Constitution of India, the Court held that LOC against an individual could not be kept open indefinitely in view that (i) the Petitioners had participated and cooperated in the investigation, and (ii) the Petitioners had roots in the society. Accordingly, the Court allowed the petitions, and quashed and set aside the LOCs against the Petitioner.
CONCLUSION
The present decision makes it clear that LOCs cannot be continued indefinitely without periodic review, as mandated under the LOC Guidelines. Unless the 'reasons' for opening LOC are disclosed by the concerned authority at the time of issuing / opening of the LOC, prima facie the LOC will not be held to be sustainable. Further, the Court has also clarified that mere mention of the FIR /or the gist of the case in the FIR will not constitute as the authority's satisfaction as to reasons warranting issuance of LOC. The fundamental object of a LOC is to ensure that the subject of the LOC would not evade arrest or participates in the investigation that is being conducted. Once this is achieved, it is not open for the designated authorities to keep the LOCs in force as the same grossly violates the fundamental rights of such individuals.
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