2024 (8) TMI 571 - HC - GST

Application to allow him to travel to South Africa for business purposes was disallowed - Denial on the grounds inter alia that the same is unjust, arbitrary and untenable in law - Whether the petitioner should be allowed to travel to South Africa considering the plea of business commitment? - HELD THAT - 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. 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. 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 - revision petition allowed.

Summary

Issues:
1. Denial of permission to travel to South Africa for business purposes.
2. Consideration of business commitment versus the requirement of the accused to be present during inquiry and trial.

Analysis:
1. The petitioner filed a revision petition challenging the order disallowing travel to South Africa for business purposes. The impugned order cited lack of specific business transactions, absence of a business schedule, and the need for the petitioner's physical presence during the framing of charges. The petitioner argued that he had a history of business-related travel to South Africa supported by documents. The defense contended that the denial lacked judicial discretion and highlighted the delay in the case proceedings due to the Special Public Prosecutor's actions.

2. The defense emphasized the petitioner's roots in society, family surety for bail, and the necessity of the South Africa trip for business obligations. The defense referenced a previous court decision and a Supreme Court case involving travel permissions for accused individuals. The prosecution opposed the travel citing the seriousness of the tax fraud charges, potential abscondence, and logistical difficulties in ensuring the petitioner's presence during proceedings.

3. The Court examined the legal provisions allowing exemptions for the accused's presence during trial under Sections 205 and 317 of the Cr.P.C. It stressed the importance of ensuring the accused's presence through legal representation and consent for evidence proceedings. The Court noted that restrictions on travel must not amount to unreasonable confinement and should consider the accused's constitutional rights.

4. In its decision, the Court acknowledged the petitioner's past travel history to South Africa, the nature of the business commitment, and the extradition treaty between India and South Africa. The Court found the denial of travel permission unjustified, considering the petitioner's compliance with court directions, lack of default, and unlikelihood of absconding. Stringent conditions were imposed to ensure the petitioner's attendance during trial while allowing the travel for a specified duration.

5. Consequently, the revision petition was allowed, setting aside the impugned order and granting permission for the petitioner to travel to South Africa. The Court directed the petitioner to submit travel details and imposed suitable conditions as deemed necessary by the lower court.