In a severe indictment of the CBI, the Additional Chief Metropolitan Magistrate, Rouse Avenue, Pawan Kumar described the LOC issued against Aakar Patel as a deliberate act to restrict valuable rights of the accused.
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IN a big relief for author, columnist and human rights defender, Aakar Patel, a Delhi Court earlier today held that the Look Out Circular [LOC] issued against him by the Central Bureau of Investigation [CBI] was liable to be set aside, and directed it to withdraw/recall the LOC immediately. The court also directed the CBI to file its compliance report of the withdrawal of the LOC on Friday at 4 p.m.
Patel, a former head of Amnesty International India, was prevented by immigration authorities in Bengaluru on Wednesday from catching a flight to the United States. He was on his way to speak at universities in the United States on invitation. The authorities justified their move not to permit Patel from travelling abroad on the basis of the LOC issued by the CBI.
Patel claimed that he had obtained permission from the Additional Sessions and District Court in Surat, which returned his passport to enable him to travel to the U.S. The court permitted him to travel only after he gave full information to the government about his tour plan, addresses of places he was planning to stay and tour itinerary, which included lectures at the New York University and Berkeley. Patel complied with the condition of the court to deposit two lakh rupees as condition for permission for return of passport to enable him to travel between March 1 and May 30.
In 2020, a case was filed against Patel in Surat by a Bharatiya Janta Party [BJP] legislator for his social media posts on Prime Minister Narendra Modi and the Ghanchi caste. The CBI, however, claimed that the LOC was for a different case, pertaining to the one that the government had filed against Amnesty International India, in violation of the Foreign Contributions Regulation Act. Hence, the CBI claimed the Surat court order was not applicable.
Patel, however, claimed that he was not aware of the LOC issued against him by the CBI. He also claimed that he had presented himself to the CBI whenever they called on him.
Additional Chief Metropolitan Magistrate of the Rouse Avenue District Court, Delhi, Pawan Kumar, in his order, observed that the recourse of the stringent provisions of LOC has bearing upon the fundamental rights of a person. Therefore, such measure should be taken cautiously and in exceptional circumstances, it said, relying on repeated observations of various High Courts.
In Patel's case, there was no ground or reason for issuance of the LOC preventing him from going abroad. "LOC should not have been issued merely on the basis of apprehensions arising out of whims and fancies of the investigating agency…Before issuance of LOC, the consequences on the rights of the affected person should have been foreseen. The fundamental rights of any person can not be curtailed without any procedure established by law", the Judge observed in his order.
The LOC in the present case was issued in violation of the guidelines laid down by the Delhi High Court and office memorandum of the concerned Ministry, the order said. The application for the issuance of LOC was moved on the day the charge sheet was complete and dispatched for filing in the court.
"This act of the investigating agency has caused monetary loss of around Rs. 3.8 lakh to the applicant/accused as he has missed his flight and he was not allowed to board because of the LOC issued against him. It is correct that the discretion for moving the application of LOC lies with the investigating agency, but the discretion cannot be exercised arbitrarily without any justifiable reasons or grounds", the Judge emphasised in his order.
The judge said in his order that the Director, CBI is expected to sensitize the officials who are part of the issuance of the LOC, and fix accountability of the concerned officials in this case.
Agreeing with Patel, the judge asked him to approach the appropriate forum for compensation for the loss caused to him, as the word 'compensation' is a generic term and cannot be restricted to monetary compensation only. "This court is of the considered opinion that in this case, a written apology from the head of the CBI, i.e., Director, CBI acknowledging the lapse on the part of his subordinate, to the applicant would go a long way in not only healing the wounds of the applicant, but also upholding the trust and confidence of the public in the premier institution", the order reads.
The government did not disclose before the appropriate court which legally permitted Patel to travel, that there was a travel ban by virtue of an existing CBI case.
In his order on Thursday, judge Kumar held that it is a settled proposition of law, as laid down by the Supreme Court in various judgments, that there cannot be any unfettered control/restriction on the right to travel, and it is the part of fundamental rights enshrined under Articles 19 and 21 of the Constitution. Judge Kumar pointed out that an LOC can be issued by the competent authority on the application moved by the Investigating agency in cognizable offences, where the accused was deliberately evading arrest or not appearing in trial court despite non-bailable warrants and other coercive measures, and there are apprehensions that the accused may evade trial or arrest.
"In the present case, it is admitted that during the investigation, the accused had joined the investigation on the notice issued u/s160 Cr.P.C…no other process or warrant was issued against the accused for his appearance. It is also admitted that after the investigation, the charge sheet has been filed without arrest of the accused", the judge noted, pointing out that the CBI suspected Patel to be a flight risk, as a justification for issuing the LOC against him.
The judge asked: "If the accused was a flight risk during the investigation or during the trial, he would have been arrested during the investigation. There is an inherent contradiction in the stand taken by the CBI". The Judge also wondered what precaution or measures the CBI took during the investigation or at the time of filing the charge sheet to ensure Patel's presence during the trial, as it was not offering an explanation for this.
In a press release, the People's Union for Civil Liberties [PUCL] described the LOC against Patel as a misuse of executive power to impose what is in effect a de-facto travel ban. "The action of the Government of India is nothing but vengeful and spiteful as Aakar Patel has been a trenchant and strong critic of the ruling BJP government and has exposed and opposed its anti-democratic, unconstitutional and anti-people policies, laws and actions", PUCL has said.
The PUCL drew a parallel between Patel's case and that of Rana Ayyub, who too was prevented from travelling abroad recently. Though later, the Delhi High Court permitted her to travel, the fact remains that the union government brazenly and arbitrarily abused its power to violate the fundamental right of Ayyub to travel, free speech and dissent, PUCL noted. Citing a Delhi High Court judgment in a similar case from 2015, the human rights organisation emphasised that a person going to attend a conference abroad to express an opinion which may not be palatable to the government cannot be stifled.
The PUCL noted that by not allowing dissent its rightful constitutional place, the government is proving its critics right. "This is a matter of deep shame for a country which prides itself on being the world's largest democracy. If democracy is to mean anything at all, it should mean that criticism, even fierce criticism which the government perceives to be unfair, is accepted with good grace", the PUCL stated, and demanded a public apology from the government for the unconscionable and unconstitutional actions of preventing both Patel and Ayyub from expressing their constitutional rights of expression and movement. More importantly, it urged the government to refrain from using the LOC as a policy tool to stifle legitimate criticism.
Click here to view the Rouse Avenue District Court order.