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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.297 of 2024 Nitin Kapoor …. Petitioner Mr. R.P. Kar, Senior Advocate & Mr. Saurav Tibrewal, Advocate -Versus- State of Odisha (DGGI) …. Opposite Party Mr. Tushar Kanti Satapathy, Senior SC for GST and Central Tax CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:15.07.2024 1. Instant revision petition is filed at the behest of the petitioner assailing the impugned order dated 3rd May, 2024 passed in 2(c) C.C. No. 61 of 2023 by the learned S.D.J.M., Bhubaneswar, whereby, an application to allow him to travel to South Africa for business purposes was disallowed on the grounds inter alia that the same is unjust, arbitrary and untenable in law, hence, therefore, liable to be interfered with and set aside with consequential directions issued in that regard. 2. As revealed from the record, the petitioner is on bail by the
Legal Reasoning
order of this Court in BLAPL No. 9999 of 2023 as at Annexure-2 subject to conditions imposed. In the meantime, with a plea to attend a business commitment, the petitioner moved the learned court below with an application under Annexure-4 to travel to South Africa along with supported documents (Annexure-5 series), as against which, an objection (Annexure-6) was received from the side of the State but such request was rejected by the impugned order under Annexure-7 on the premise that no Page 1 of 8 document has been filed by him to show any specific business transaction in South Africa; no material was produced to showcase about any business schedule/ itinerary; co-accused being in judicial custody; and that, the charge is to be framed on the next date i.e. 13th May, 2024, for which s, he has to be physically present. Being aggrieved by the impugned order under Annexure- 7, the petitioner has knocked the portals of this Court to set it aside in exercise of revisional jurisdiction. 3. Heard Mr. Kar, learned Senior Advocate appearing for the petitioner and Mr. Satapathy, learned Senior Standing Counsel, GST and Central Tax. 4. Mr. Kar, learned Senior Advocate for the petitioner would submit that the petitioner is on bail and as per one of the conditions imposed by the Court, he may be allowed to travel subject to leave of the court below and in the meantime, the co- accused who was in judicial custody by then, has been granted bail in the meantime. It is further submitted that the petitioner having business related work in South Africa, for which, he used to travel frequently to the said country, hence, having travel history by citing Annexure-3, a letter received by the petitioner from one M/s. Motek 1017 (pty) Ltd. having its registered office at Cape Town, South Africa, Mr. Kar, learned Senior Advocate submits that in response to the same, he has to travel this time again to South Africa for providing necessary services to the client. With respect to the claim of prior visits to South Africa, Mr. Kar, learned Senior Advocate relies on the visa documents. Such claim of travel to South Africa till recently, it is sought to be proved by a visa document of the year 2022. It is stated that on a complaint filed, the proceeding in 2(c) C.C. Case No.61 of 2023 was registered for offence under Section 69 read with Sections Page 2 of 8 132(1)(b), 132(1)(c) and 132(1)(f) of the CGST Act, 2017 pending in the file of learned S.D.J.M., Bhubaneswar. It is apprised to the Court by Mr. Kar, learned Senior Advocate that the case is based on inquiry made by the Bankers of two firms, namely M/s. Jasem Overseas and M/s. Rompather General Overseas and it is alleged that one Mr. Rony used to visit the Banks (Federal Bank and Central Bank, Kalpana Square, Bhubaneswar) to enquire about the accounts of the firms and thereafter, on 11th July, 2023, the officials of DGGI apprehended him and two others including the petitioner. The details of the allegations against the accused persons are also described by Mr. Kar, learned Senior Advocate, which are not reproduced at present for the sake of brevity. The contention is that co-accused No.2 is on bail and the petitioner is having travel history and in view of the business commitment for having received the letter from his client, he is required to travel to South Africa. It is contended by Mr. Kar, learned Senior Advocate that the petitioner has roots in the society and is one of his family members stood as a bail surety and therefore, he cannot abscond. it is further contended that the reason assigned by the learned court below to deny such travel to South Africa by the petitioner does not carry any sense and really gibberish. In other words, it is alleged that while denying such travel, learned court below failed to exercise due judicial discretion. Furthermore, the manner in which the proceeding in 2(c) C.C. 61 of 2023 has been conducted, the same is brought to the notice of the Court by Mr. Kar, learned Senior Advocate referring to order dated 4th March, 2024 of the learned S.D.J.M., Bhubaneswar, inasmuch as, considerable delay and laches is attributed to the Special Public Prosecutor managing the case on behalf of Directorate General of Goods and Services, Tax Intelligence, hence, considering the same, the travel of the petitioner to South Page 3 of 8 Africa cannot be postponed indefinitely. With such other grounds, Mr. Kar, learned Senior Advocate submits that the impugned order under Annexure-7 is liable to be set aside. In support of the plea and contention advanced, Mr. Kar, learned Senior Advocate relies on a decision dated 15th April, 2024 of this Court in Criminal Revision No.690 of 2023 and a citation reported in (2020) 10 SCC 77 in the case of Parvez Noordin Lokhandwalla Vrs. State of Maharashtra and Another, wherein, the Apex Court had the occasion to deal with such a matter, where the accused was seeking permission to travel to USA for revalidating Green Card issued to him, similarly having past travel history. 5. On the contrary, Mr. Satapathy, learned Senior Standing Counsel, GST and Central Tax submits that considering the severity of the offences alleged and its magnitude, as huge amount of tax fraud is involved and as there is a possibility of abscondence, the petitioner should not be allowed any such travel, which is likely to impede the prosecution before the court of learned S.D.J.M., Bhubaneswar. It is further submitted that the petitioner is not a resident of Odisha but stays at Gurgaon, Haryana and it may also be difficult for the prosecution to ensure his attendance during inquiry and trial when charge is about to be framed. 6. Whether the petitioner should be allowed to travel to South Africa 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 situation demands, such exemption may be allowed to the accused unless it shatters speedy trial. While considering exemption, the principles of natural justice are to be ensured. Absence of an accused must Page 4 of 8 have due regard to the smooth and efficient functioning of the criminal proceeding before the court. 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, the 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 from justice. In this regard, the decision referred to by Mr. Kar, learned Senior Advocate 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 Page 5 of 8 are imposed by the Court must bear a proportional relationship to the purpose of imposing it and the nature of risk which is posed by the grant of permission must be carefully evaluated in each particular case. It is held that everyone has a constitutional right guaranteed under Article 21 of the Constitution of India, 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 South Africa since 1998 till recently in 2022 and the same is supported by the visa documents submitted by him before the learned court below. No doubt, the prosecution against the petitioner relates to tax fraud but is a native of Gurgaon, Haryana and runs business. In the meantime, the letter of a client was received by the petitioner which reveals some services are to be offered to the said client. Mr. Kar, learned Senior Advocate submits that the purpose of the business as per the communication received by the petitioner still survives and merely for the reason that a prosecution has been lunched, he cannot be denied to travel to South Africa and while advancing such an argument, the principle based on a maxim omnis indemnatus pro innoxio legibus habetur, which means, everyone who has not been found guilty is deemed innocent by the law is cited. In course of hearing of this case, a Gazette Notification of Government of India dated 20th June, 2007 is produced to claim existence of an extradition treaty between India and South Africa, hence, there is a remote possibility of not getting the petitioner back for the purpose of trial as apprehended by the learned court below and as according to Mr. Kar, learned Senior Advocate, any such apprehension, in the facts and circumstances of the case, is Page 6 of 8 totally misplaced and misconceived. Having regard to the nature of the offences alleged, the delay in commencement of trial with the charge framed, attendance of the petitioner all along duly represented by a counsel without default with no any instance cited and the fact that the petitioner has a past 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 imposing suitable conditions. 8. In fact, Mr. Satapathy, learned Senior Standing Counsel for the opposite parties apprehends the abscondance of the petitioner, which for the facts discussed hereinabove, as according to the Court, is inappropriate. The Court finds that the petitioner has been diligent during inquiry after the complaint was filed without any incident of default and complied with the direction of the court below and for being a permanent native and a family behind, it is most unlikely that he would abscond or flee from the course of justice. Such permission, it is further concluded, can be granted to the petitioner imposing stringent conditions on him to ensure his attendance during trial. Inasmuch as, the duration of such travel as disclosed by Mr. Kar, learned Senior Advocate may be a month or two. The Court is not inclined to burden the series of citations related to the case of present nature as it has been referred to including the citation in the case of Parvez Noordin Lokhandwalla (supra) while dealing with and disposing of the CRLREV No.690 of 2023 in the case of Indrajit De Vrs. Republic of India (C.B.I.). 9. Hence, it is ordered. Page 7 of 8 10. In the result, the revision petition stands allowed. As a necessary corollary, the impugned order under Annexure-7 passed in 2(c)C.C. No.61 of 2023 by the learned S.D.J.M., 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 to visit South Africa. 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 South Africa 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 8 of 8