2022 (2) TMI 1316 - HC - Indian Laws

Seeking permission to travel abroad - Should an accused in a pending criminal case seek permission from the Court concerned for visiting a foreign country in terms of the Notification GSR 570(E) dated 25/8/1993 r/w S. 6(2)(f) of the Passports Act, 1967 even if he holds a valid passport? - HELD THAT - S. 317(1) of Cr.P.C. empowers the Judge or Magistrate to dispense with the personal attendance of the accused and to proceed with trial in his absence. Ordinarily the court should be generous and liberal under Ss. 205 and 317 of Cr.P.C and grant exemption to the accused from personal appearance unless the presence is imperatively needed or becomes indispensable. The petitioner is employed at Riyadh, Saudi Arabia as a security watchman. He took leave and came to native place on 24/9/2020 only to make appearance in the above case. But due to Covid 1-19 restriction he could not go back. Thereafter he received a notice from his employer to report for duty on or before 13/11/2021. It was at that juncture he moved the application u/s. 317 of Cr.P.C at the Court below. In Annexure A1 affidavit, he has specifically stated that he is the sole bread winner of his family and unless he goes back to Saudi Arabia, he would lose his job. He clearly undertook in the affidavit that he has absolutely no objection in proceeding with the trial in his absence and he has also stated that Adv. Shamsudheen K. will be appearing for him at the Court. He has also undertaken that he will not dispute his identity. In these circumstances, the Court below ought to have allowed his application seeking exemption from personal attendance. This Crl. M.C can be disposed of with a direction to the learned Magistrate to consider Crl. M.P. No. 405/2021 in the absence of the petitioner and to pass orders in accordance with law - Application disposed off.

Summary

Issues:
1. Whether an accused in a pending criminal case needs court permission to visit a foreign country despite holding a valid passport?

Analysis:
1. The petitioner, the sole accused in a criminal case, sought permission to conduct trial in his absence to rejoin employment abroad. The court dismissed the application, stating the need for permission under the Passports Act. The petitioner argued that possessing a valid passport exempts the need for such permission and is willing to appear when required.

2. The Passports Act, 1967, mandates a valid passport for departing from India. Section 6 outlines grounds for refusal of passport issuance, including pending criminal proceedings (S. 6(2)(f)). The Act distinguishes between refusal to endorse travel and refusal to issue passports. The government notification GSR No. 570(E) exempts individuals with pending criminal cases from S. 6(2)(f) requirements under specific conditions.

3. The court clarified that the Act's provisions do not restrict travel for individuals with valid passports facing criminal charges. The Act allows impounding passports if criminal cases are pending (S. 10), but refusal to issue passports is discretionary. The petitioner's passport was not impounded, indicating validity.

4. Fundamental rights under Article 21 protect the right to travel abroad. Previous court decisions emphasize due process for depriving travel rights. The Act's restriction (S. 6(2)(f)) applies only to passport issuance, not travel. The court concluded that accused individuals with valid passports do not need court permission to travel abroad, except when bail conditions restrict travel.

5. Section 317 of Cr.P.C. allows trial proceedings in the accused's absence. Court decisions support granting exemptions based on the accused's undertaking not to dispute identity and legal representation. The petitioner, a security watchman employed abroad, sought exemption due to job loss risk, with an authorized counsel representing him.

6. Considering the petitioner's departure to Saudi Arabia, the court directed the magistrate to review the application for trial proceedings in the petitioner's absence, with conditions ensuring future presence. The court emphasized applying principles of exemption from personal appearance to appropriate cases.

7. The judgment disposed of the Criminal Miscellaneous Case with directions for the magistrate to consider the petitioner's application in his absence, ensuring legal compliance and future appearance requirements.