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Fundamental Right To Travel Abroad Can Be Regulated By Imposing Conditions: Punjab & Haryana HC Permits Accused To Visit USA For Family Reunion

Drishti Yadav
28 March 2022 2:12 PM GMT
Fundamental Right To Travel Abroad Can Be Regulated By Imposing Conditions: Punjab & Haryana HC Permits Accused To Visit USA For Family Reunion
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Punjab and Haryana High Court recently permitted an Overseas Indian citizen, booked for offences of Cheating and Criminal breach of trust by the Reawri Police, to visit the United States of America for a family reunion.The bench comprising Justice Vikas Bahl held that the petitioner has a fundamental right to travel abroad, which can be regulated by imposing certain conditions on him....

Punjab and Haryana High Court recently permitted an Overseas Indian citizen, booked for offences of Cheating and Criminal breach of trust by the Reawri Police, to visit the United States of America for a family reunion.

The bench comprising  Justice Vikas Bahl held that the petitioner has a fundamental right to travel abroad, which can be regulated by imposing certain conditions on him. It observed that the Court is required to "draw a balance" between the right of the petitioner to travel abroad on one hand and the right of the prosecution on another.

"This Court is required to draw a balance between the right of the petitioner to travel abroad and also the right of the prosecution to duly prosecute the petitioner so as to prevent him from evading the trial. From a perusal of the various judgments passed by the Hon'ble Supreme Court of India as well as this Court, it is clear that paramount consideration is given to the conditions imposed upon the persons who have been granted the permission to go abroad, so as to ensure that they do not flee from justice."

The case came up as a result of an order passed by the Court of Chief Judicial Magistrate, Rewari and Sessions Judge, Rewari, respectively whereby an application to release the passport of the petitioner and grant of permission to visit the United States of America was dismissed. The criminal revision filed against the said order was also dismissed. Therefore, the petitioner approached the High Court under Section 482 of Cr.P.C. for setting aside both the orders.

The undisputed facts of the case are that the petitioner, one of the directors in the board of directors of a company was facing trial under Sections 420/406/120-B/34 of the Indian Penal Code, 1860 wherein the passport of the petitioner was confiscated.

The court after hearing both the parties came to the conclusion that the petitioner has a fundamental right to travel abroad because the allegations in the present case are not such as to disentitle the petitioner to travel abroad.

Moving further to another issue that the period for which petitioner had initially sought permission to travel abroad has lapsed the court held that although the period has lapsed the cause still exists.

In the present case, the primary plea raised by the petitioner is to meet his wife and son who are residing in the USA. The said cause was existing at the time of filing of the application at the first stage, at the time of arguments in the revision petition, as well as in the present petition. The cause thus survives. Moreover, the petitioner cannot be deprived of his right to travel abroad and meet his family members, merely on account of the fact that the period for which he had initially sought the said permission, has lapsed. In the present case, the visit was not for a specific function/event, upon the finishing of which, the cause would cease to survive.

Court held that right to travel abroad is very much a fundamental right, but the said right is to be regulated by imposing suitable conditions for securing the petitioner's presence during the trial. It is also open to this Court while exercising its powers under Section 482 of Cr.P.C. to consider any additional/ancillary plea in order to grant permission to the petitioner to travel abroad.

In the present case, the primary ground for opposing the application for permission to go abroad is that the petitioner would not come back to India, in case permission is granted to go abroad. On this aspect, it has been highlighted that the petitioner is a permanent resident of the U.S. since 02.04.2011 and he does not have any immovable property in India. His family also lives in the USA. The company in which the petitioner was on the Board of Directors, is one of the accused in the complaints under Section 138 of the Negotiable Instruments Act of 1881.

This Court is required to draw a balance between the right of the petitioner to travel abroad and also the right of the prosecution to duly prosecute the petitioner so as to prevent him from evading the trial. From a perusal of the various judgments passed by the Hon'ble Supreme Court of India as well as this Court, it is clear that paramount consideration is given to the conditions imposed upon the persons who have been granted the permission to go abroad, so as to ensure that they do not flee from justice.

Therefore, keeping in view the facts and circumstances the petitioner is allowed to go abroad for a period of one month subject to certain conditions.

Case Title : Amit Sureshmal Lodha v State of Haryana

Citation: 2022 LiveLaw (PH) 47

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