Criminal Appeal No. 929 of 2021 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.292 of 2024 K. Chandrasekhar @ Kuppuswami Chandrasekhar …. Petitioner Mr. Arun Kumar Acharya, Advocate along with Mr. S. Mishra, Mr. A. Acharya & Mr. S.S. Dash -Versus- Republic of India (CBI) …. Opposite Party Mr. Sarthak Nayak, Special Public Prosecutor, CBI CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:15.07.2024 1. Instant revision petition is filed by the petitioner challenging the correctness of the impugned decision dated 19th June, 2024 passed in SPE Case No.5 of 2014 arising out of R.C. No.10(s) of 2014 (Kol) registered under Sections 420 and 409 read with Section 120B IPC and Sections 4 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 by learned Special CJM (CBI), Bhubaneswar on the grounds inter alia that the same is unjust, arbitrary and not legally tenable and hence, liable to be interfered with and set aside with consequential directions issued. 2. It is pleaded on record that pursuant to the summons issued by the learned court below, the petitioner appeared in person on 16th October, 2023 and was released on bail with conditions, one of which was to surrender his passport, which was duly obliged. It is further revealed that the petitioner is the CEO and Founder of Focus Health Care with its Head and Corporate Offices situate at Page 1 of 6 Bangaluru and the company started with a mission to eradicate avoidable blindness using technology. It is also suggested that the petitioner is having past travel history between 2016 to 2023 and visited different countries in connection with the company’s business affairs. In the case at hand, the petitioner and co-accused stood chargesheeted in 2022. It is claimed that the petitioner even after submission of supplementary chargesheet No.21 of 2022 has travelled to U.K. on 8th September 2023 and returned back on 16th September, 2023. In so far as the criminal prosecution is concerned, it has been initiated at the behest of the CBI. The details of the allegations are revealed from the record. In view of the business commitment and the need to visit abroad, the petitioner moved the learned court below for permission but the same was denied by the impugned order under Annexure-5. The reason behind denying the permission, as made to reveal from Annexure-5, is that any such travel to USA and UK shall defeat one of the conditions, such as, he shall not default in personal attendance of the court. Since, the petitioner was released later to the order of the Apex Court in Criminal Appeal No.929 of 2021 arising out of SLP (Crl.) No.5234 of 2021 and was directed to surrender his passport, learned court below with the reasons assigned was not in favour of granting permission to him to travel abroad.
Legal Reasoning
account of business commitment. Prima facie, it does appear that the petitioner has a long travel history in each and every year from 2015 and onwards. 6. Whether, the petitioner should be allowed to travel to USA & UK considering the plea of business commitment? Being an accused, one has to remain present during inquiry at the time of trial. Such presence of an accused may be dispensed with as per the provisions of Sections 205 and Section 317 Cr.P.C. If a situation demands, such exemption may be allowed to the accused, unless it shatters continuation of trial. While considering exemption, the principles of natural justice are to be ensured. Absence of an accused must have due regard to the smooth and efficient functioning of the criminal proceeding before the court. Page 3 of 6 It has been held time and again that as long as the accused can ensure the presence through a counsel and consents to any evidence being taken in his absence, his attendance can be dispensed with and in certain situation, additional conditions may be imposed considering the gravity of the offence or where the presence is statutorily mandatory. All such aspects have been dealt with elaborately by the Apex Court in M/s. Bhaskar Industries Limited Vrs. M/s. Bhiwani Denim & Apparels Ltd. & others AIR 2001 SC 3625. It is also a recognized judicial principle that restrictions against travel to abroad for a time shorter than necessary may amount to unreasonable confinement, which is patently unethical and illegal. As it is well known, liberty of an individual cannot be curtailed solely because the investigation is pending. The sole concern of a court, in case of any such travel to abroad, is the efficient functioning of the trial in absence of the accused. The primary consideration of the courts is, whether, the presence of the accused can be enforced at the time of trial. To ensure the presence of the accused during inquiry and trial, conditions may have to be imposed, which would deter him from absconding or fleeing in order to escape the prosecution. In this regard, the decision referred to by Mr. Acharya, learned counsel in the case of Parvez Noordin Lokhandwalla (supra) is to be taken cognizance of. In the said decision, the Apex Court outlined the relevant considerations when a request for travel to abroad is received from an accused and held and observed that human right to dignity and protection of constitutional safeguards should not become illusory by imposition of conditions, which are disproportionate to the need to secure his presence during investigation and eventually, at the time of trial. It is also observed therein that the conditions which are imposed by the court must bear a proportional relationship to the purpose of Page 4 of 6 imposing it and the nature of risk which is posed by the grant of permission must be carefully evaluated in each case. It is held that everyone has a constitutional right guaranteed under Article 21 of the Constitution of India,1950, which is to be preserved and maintained and the presence of the accused to be ensured with safeguards imposing conditions when a request to travel abroad is received from him keeping in view the nature of allegations levelled by the prosecution. 7. In the case at hand, the petitioner is a businessman and has had previous travels to abroad since 2016 till recently in 2023 and the same is supported by the visa documents submitted by him before the learned court below. No doubt, the prosecution against the petitioner and other accused persons is initiated for the alleged offences but is a native of Bengaluru and runs business from there. As according to Mr. Acharya, learned counsel any such apprehension of abscondence, in the facts and circumstances of the case, is totally misconceived. Having regard to the facts emerge and that the petitioner has a long travel history and unlikely to abscond having his roots in India, the Court reaches at a conclusion that the learned court below was not right in denying the permission for him to travel abroad which could have been ensured by imposing suitable conditions. In fact, before such conclusion is reached at, the contention and concern of Mr. Nayak, learned Special Public Prosecutor of CBI has been duly taken judicial notice of. 8. In view of the discussions as aforesaid and for the fact that the petitioner is a busy business body and has previous travel history and of course, an accused before the learned court below, keeping in view the settled legal position and relevant considerations summarized by the Apex Court in the case of Page 5 of 6 Parvez Noordin Lokhandwalla (supra), the Court is inclined and in favour of allowing the petitioner to travel abroad subject to stringent conditions imposed to ensure his attendance for the purpose of prosecution pending before the learned court below. 9. Hence, it is ordered. 10. In the result, the revision petition stands allowed. As a necessary corollary, the impugned order under Annexure-5 passed in Criminal Misc. Case No.05/619 of 2024 (arising out of S.P.E. No.05 of 2014) corresponding to RC No.10(s) of 2014 (Kol) by the learned Special C.J.M. (CBI), Bhubaneswar is hereby set aside with a direction that the petitioner shall be allowed to receive the original Passport and retain it for such period depending on his itinerary/travel schedule to visit U.S.A. & U.K. It is further directed that the petitioner shall forthwith submit the schedule of his visit with all details regarding duration and place of stay in U.S.A. & U.K. before learned court below, which shall further impose such other conditions as would be deemed just and expedient in the facts and circumstances of the case. Balaram (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Jul-2024 10:44:46 Page 6 of 6
Arguments
3. Heard Mr. Acharya, learned counsel for the petitioner and Mr. Nayak, learned Special Public Prosecutor for C.B.I. 4. Mr. Acharya, learned counsel for the petitioner submits that the petitioner is a CEO and Founder Member of a company and he is required to travel abroad and has permanent business establishment in India at Bangaluru and the company is operating in major parts of the country and having a family behind and in Page 2 of 6 view of the decision of the Apex Court in the case of Parvez Noordin Lokhandwalla Vrs. State of Maharashtra and Another (2020) 10 SCC 77 and the judgment in Shrikant Mohta Vrs. Republic of India (CBI) 2023 SCC OnLine Orissa 13 and citations referred to, there should not be any difficulty to grant permission to the petitioner to travel abroad releasing his passport for the said purpose. On the contrary, Mr. Nayak, learned Special Public Prosecutor (CBI), opposed the petitioner to travel abroad on the ground that he is an accused having committed mischief and being involved in economic offences for cheating poor and gullible investors, hence, should not be allowed the permission and the same is likely to affect the prosecution lunched by the CBI. 5. The relevant documents as at Annexure-2 are referred to by Mr. Acharya, learned counsel for the petitioner to convince the Court to grant permission particularly in view of past travel history between the period commencing from 2015 till recently in 2023, he having travelled to many countries around the world on