Case Law Details
Vikas Chaudhary Vs Union of India (Delhi High Court)
Having noted the relevant extracts of both the OM dated 27.10.2010 and the OM dated 05.12.2017, I may deal with the first issue as to whether the Court can interfere with the issuance of a Look Out Circular (LOC). In my view, even though the respondents are justified in contending that the scope of judicial review to interfere with the decision of the competent authority issuing a LOC is very limited, it cannot be said that the decision is purely an administrative one or that in no situation can the Court examine the reasons provided by the authority for the issuance of a LOC. When considering a challenge to a LOC, the Courts undoubtedly have a secondary role; and as long as it is found that the decision of the authorities to issue a LOC is a reasonable one, the Court will be circumspect in interfering with the authority’s decision to issue the same. There can, however, never be any blanket bar on the Court’s powers of judicial review to examine the authority’s decision to issue the LOC. In the light of the adverse effects that the issuance of a LOC can have on the individual’s life, the respondent’s plea that the Writ Court under Article 226 of the Constitution of India should not review the decision to issue LOC cannot be accepted. In fact, in case, it is found that the decision of the authorities is without application of mind to the relevant factors, the Court can, and in fact, should come to the rescue of the individual. I, therefore, find no merit in the respondent’s plea that this Court should not examine the legality of the impugned LOC.
Now coming to the second issue, what emerges is that the petitioner has, by relying on the counter affidavit filed by the respondent no.1, vehemently urged, that the request of issuance of the impugned LOC by the respondent no.3 having been made under the OM dated 27.10.2010, which prescribes that a LOC can be issued only when a person is involved in a cognizable offence under the Indian Penal Code, 1860 or under any other penal law, it was now not open for the respondent to take shelter under the amending OM dated 05.12.2017. The respondent has, while not denying that the petitioner is, as on date, not involved in any cognizable offence, sought to defend the LOC by urging that petitioner’s case squarely fell within the ambit of the term ‘Detrimental to the Economic Interests of India’ as introduced vide the amendment to the procedure of issuance of a LOC through the OM dated 05.12.2017. It is the respondents’ stand that the Clause introduced in 2017 is only in the nature of an amendment to the OM issued in 2010 and therefore, the applicable OM continues to be the OM dated 27.10.2010. It is, thus, the respondent’s plea that the request for issuance of the LOC could therefore, be made only under the OM of 2010 and was therefore, correctly made under the same.
Upon a bare perusal of the provisions of the OM dated 05.12.2017, I find myself unable to accept the petitioner’s plea that the request for LOC, having been made under the OM of 2010, no resort could be made to the Clause introduced in 2017. The OM dated 05.12.2017 was clearly in the nature of an amendment to the circular dated 27.10.2010, the very title of which OM, makes it evident that an existing Clause of the OM dated 27.10.2010, dealing with cases covered under the exception Clause was sought to be amended. Even otherwise, I find, that this OM of 2017, except for introducing an amendment to the existing OM of 2010, does not lay down or even refer to any new guidelines. The OM dated 05.12.2017, therefore, only sought to introduce an amendment. The respondents are therefore, right in contending that the OM issued on 05.12.2017 only brought about an amendment and it is the OM of 2010 that continues to hold the field, albeit with the amendment introduced subsequently.
In my considered opinion, once a request for issuance of the impugned LOC against the petitioner was made in February 2019, his case was necessarily required to be governed by the OM of 2010, along with all up to date amendments, including the amendment introduced in 2017. The respondent no.3’s action, in referring to the OM of 2010, while forwarding its request for issuance of LOC against the petitioner was therefore in order, and cannot be read in such a restrictive manner so as to imply that, no reference having been made to the OM dated 05.12.2017, it must be presumed that the respondent no.3 never intended to invoke the Clause introduced vide the OM dated 05.12.2017. The respondent’s action, in justifying the issuance of the LOC against the petitioner by relying on the Clause introduced vide the 2017 amendment, can, therefore, not be faulted.
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