While one cannot ignore the necessity of subjecting the petitioner to stringent
conditions, to ensure his presence during trial, his fundamental right of free movement
including his right to go abroad for earning his livelihood cannot also be lightly brushed
aside.
It brooks no controversy that the right to go abroad is a part of the
fundamental right to life and personal liberty as enshrined under Article 21 of the
Constitution of India as enunciated in the case of Smt. Maneka Gandhi - Vs. - Union of
India, A.I.R. 1978 S.C. 597.
Hence, when a citizen is accused of an offence, his right to free movement may
be subjected to restrictions. However, such restrictions must be just reasonable, fair and
proportionate to the facts and circumstances of the case. Sovereign right of
administration of criminal justice on one hand must be evenly balanced with the right of
free movement of the individual on the other hand. In Srichand P. Hinduja - Vs. - State
through C.B.I., New Delhi, 2002 Cr. L.J. 942, the Apex Court even permitted an accused
who is a foreign national to go abroad during trial subject to strict conditions.
Kolkata High Court (Appellete Side)
2199/2013 on 4 December, 2013
Sri Amarendra Nath Ghosh
‐Versus‐
The State of West Bengal & Anr.
Citation;2014 AllMR(cri) JOURNAL 211
Order dated 26.04.2013 passed by the learned Special Judge, Special Court,
Alipore in Special Case No. 7 of 1998 arising out of R.C. Case No. 6E/1996 rejecting the
prayer of the petitioner to go abroad has been challenged.
The petitioner claims to be a businessman having various business interests,
some of which are situated abroad. He has been implicated as an accused person in
Special Case No 7 of 1998 arising out of R.C. Case No.6E/1996 in respect of which
charges have just been framed and the date for recording evidence has been fixed on
January 20, 2014.
It appears that the petitioner had absconded and was finally detained in West
Germany in 2002. Extradition Proceeding was initiated and he was brought to the
country in 2007. He was released on bail on August 22, 2008 subject to various 2
conditions. From time to time conditions have been relaxed, however, the petitioner is
subjected to the condition that he shall not travel abroad without permission of the
Court. The petitioner made a prayer before the trial Court seeking permission to travel
abroad on the ground that such travel is necessary for catering to his overseas business
interests.
The trial Court in view of the fact that the petitioner had absconded for a
protracted period of time, rejected such payer. Hence this application.
Mr. Moitra, learned senior counsel appearing for the petitioner submitted that
the petitioner had been in detention since 2002 and upon his release on bail has been
regularly attending the trial proceeding. He further submitted that there was no chance
of his client absconding and that he had already suffered detention for more than eight
years in connection with this case since 2002. He further undertook that his mother, Sati
Ghosh, permanent resident of this city, shall stand as a guarantee on his behalf.
According to him, the fundamental right of the petitioner to travel abroad to earn his
livelihood ought not to be whittled down due to the pendency of the criminal
proceeding which may take years to conclude.
Mr. De, learned senior counsel appearing for the C.B.I. opposed such prayer
and submitted that in view of the gravity of the offence which related to defrauding a
Nationalized Bank of several crores of rupees and the past conduct of the petitioner he
ought not to be permitted to go abroad. A red corner notice had been issued against the
petitioner in order to procure his arrest and as a result thereof he was ultimately
detained in West Germany and brought to justice after a protracted extradition
proceeding.
Having considered the materials on record, I find that the petitioner had been
extradited to the country after being detained in West Germany. However, since his
release on bail he has been regularly attending the trial proceeding. I find that although 3
the petitioner was extradited to India in 2008 charges in the instant case was framed
after about five years as late as on 25.11.2013 and, that too, at the insistence of this Court.
I am informed that there are about sixty prosecution witnesses cited in the
charge‐sheet and a large number of documents are also to be exhibited during trial.
Hence, there is hardly any chance of the trial in the instant case concluding in the near
future.
While one cannot ignore the necessity of subjecting the petitioner to stringent
conditions, to ensure his presence during trial, his fundamental right of free movement
including his right to go abroad for earning his livelihood cannot also be lightly brushed
aside.
It brooks no controversy that the right to go abroad is a part of the
fundamental right to life and personal liberty as enshrined under Article 21 of the
Constitution of India as enunciated in the case of Smt. Maneka Gandhi - Vs. - Union of
India, A.I.R. 1978 S.C. 597.
Hence, when a citizen is accused of an offence, his right to free movement may
be subjected to restrictions. However, such restrictions must be just reasonable, fair and
proportionate to the facts and circumstances of the case. Sovereign right of
administration of criminal justice on one hand must be evenly balanced with the right of
free movement of the individual on the other hand. In Srichand P. Hinduja - Vs. - State
through C.B.I., New Delhi, 2002 Cr. L.J. 942, the Apex Court even permitted an accused
who is a foreign national to go abroad during trial subject to strict conditions.
In the factual backdrop of this case and bearing in mind that the trial in the
instant case is not likely to be concluded in the near future, I am of the view to put an
absolute embargo on the travel of the petitioner abroad till conclusion of trial would
amount to an unreasonable restriction on his fundamental right to free movement
including his right to go abroad more particularly when such activity is linked with the
petitioner's livelihood. However, such right cannot be permitted to be enjoyed in an 4
unrestricted manner and has to be subjected to adequate restrictions so as to ensure his
timely return to India to face trial.
The petitioner has filed the supplementary affidavit disclosing his itinerary
and the countries that he would like to visit in connection with his business i.e. Thailand
and United Kingdom. Report was sought for in that regard from Superintendent of
Police, Central Bureau of Investigation BS&FC who has filed two reports dated
11.11.2013 and 02.12.2013 respectively before this Court. Let such reports be kept with
the record. From such reports it appears that there are extradition treaties subsisting
between the United Kingdom and Thailand on one hand and Union of India, on the
other.
In view of such fact, I am of the considered opinion that the petitioner may be
permitted to go abroad in terms of the itinerary as set out in paragraph 1 of the
supplementary affidavit affirmed on December 3, 2013. He shall leave for Bangkok on
December 30, 2013 and remain there for five days. Thereafter he intends to leave for
London on January 6, 2014 and return to Bangkok on January 11, 2014 and therefrom
would return to Calcutta on January 14, 2014.
Accordingly, the petitioner is permitted to go abroad in terms of the aforesaid
itinerary on and from 30th December, 2013 and return to Calcutta on 14th January, 2014
subject to the following conditions:‐
(a) The petitioner shall furnish a bond of Rs.5,00,000/‐ (Rupees five lacs only)
along with a cash security of equivalent amount to the satisfaction of the trial Court
undertaking to act in terms of this order and return to Calcutta on or before 14th January,
2014;
(b) Smt. Sati Ghosh, wife of Late Mrigendra Nath Ghosh, residing at 16A, R.
K. Ghosal Road, Kasba, Kolkata - 700 042 (the mother of the petitioner) shall personally
stand as surety and execute a bond to the satisfaction of the trial Court undertaking that 5
the petitioner shall act in terms of this order and return to Calcutta on or before
14.01.2014. She shall also affirm an affidavit to that effect before the trial Court;
(c) The petitioner shall intimate his travel itinerary to Superintendent of
Police, Central Bureau of Investigation, BS&FC, Calcutta and also intimate the addresses
where he would be residing abroad prior to his departure;
(d) He shall report to the aforesaid Superintendent of Police, Central Bureau
of Investigation, BS&FC, Calcutta on a daily basis over telephone, the number whereof
would also be furnished before hand; (e) He shall return to Calcutta on or before 14th January, 2014 and within 24
hours thereof hand over his passport to the aforesaid Superintendent of Police and
would positively personally appear in the trial Court on 20.01.2014;
Central Bureau of Investigation authorities shall satisfy itself as to whether the
above mentioned conditions (i), (ii) and (iii) have been complied with and thereupon
hand over the passport to the petitioner without unnecessary delay and also render all
necessary assistance so that the petitioner may avail of this order.
The instant revisional application is, accordingly, allowed. Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early
as possible.
(Joymalya Bagchi, J.)
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