In this classic case, the Delhi HC explains the balance between individual liberty (including right to travel) and need to have a fair trial(to compel the accused to stand trial)
The HC states and we quote :
“…There is no dispute that the petitioner is facing trial in a serious non-bailable offence and that,…“
“…At the same time, the court has to be mindful of the fact that any such condition has to be imposed keeping in view the fundamental right of personal liberty of a person. The conditions which should be imposed must be workable, practical and reasonable and should not be harsh, vindictive and undue infringing personal liberty of a person. …”
“… In the given facts and circumstances, when the petitioner has already traveled abroad several times, now the mere fact of the seriousness or the gravity of the offense alone may not be enough to decline permission to travel abroad… “
and the court clearly states that compelling the petition to submit to conditions every time would be onerous and harsh “… Furnishing FDR and obtaining NOCs at every time on the occasion of visit abroad may be reasonable at one point of time, but then, the same can become onerous and harsh at another point of time. In the given set of system, it may also involve mental torture and running around….”
So the Hon HC modifies the lower court order and make it easier for the accused to travel abroad
The Hon court concludes “… I am of the view that the petitioner is now entitled to enjoy personal liberty without seeking permission from the court every time under onerous and harsh conditions.…”
THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:20.03.2012
G.Vetrivel Sami @ Swami …… Petitioner
Through: Mr.Aman Mehta, Advocate.
Through: Ms.Sonia Mathur & Mr.Sushil Dubey, Advocates.
CORAM: HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
- Vide this petition under Section 482 CrPC, the petitioner seeks to modify the bail order dated 03rd June, 2006 of Special Judge, CBI and the order dated 08.12.2011 of ASJ dismissing his application seeking modification of the said bail order dated 03rd June, 2006.
The petitioner is facing prosecution in CBI case under Sections 255/258/259/260/420/471/120B IPC. He was granted bail by the then Special Judge on 03rd June, 2006 subject to the following conditions: “(i) That accused shall not leave India without permission of the Court. (ii) That he shall surrender his passport, if any to the CBI. (iii) That he shall not tamper with the evidence. (iv) That he shall not have contact with any of the prosecution witnesses. (v) Further, if the trial is delayed on the account of dilatory tactics adopted by the accused, that itself can be treated as a ground for cancellation of bail”. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
The petitioner was granted permission to go abroad by the Trial Court for specific periods as many as four times. Every time, the permission was granted by the Court for specific period subject to the petitioner furnishing FDR of Rs. 1 lakh and NOC from both the sureties as also the itinerary and contact numbers of his travel period. On two occasions i.e. 25th February, 2009 and 04th March, 2009, his permission to travel abroad was declined by the Trial Court.
The petitioner filed an application for modification of the bail order dated 03rd June, 2006, which came to be dismissed by the ASJ vide the impugned order dated 08th December, 2011. While dismissing the application, the learned ASJ reasoned as under: “I have considered the rival submissions. The allegations against the applicant are serious in nature. There are allegations that he was involved in fake stamp network of accused Abdul Karim Telgi. There are allegations that he was actively involved in the sale of counterfeit stamps. The applicant was granted bail in the year 2006. Since 2006, the applicant has travelled only thrice to CIS countries on 16.10.2010, 14.02.2011 and 08.07.2011. He is not a frequent visitor. The Spl. PP for CBI has submitted that whenever permission is applied by applicant to go abroad, the CBI verifies the fact whether petitioner is actually required to go abroad or not? If the conditions are modified, there will be no check on the petitioner and he can misuse the liberty. In my opinion, the conditions imposed upon the applicant are not unjustified. Ld. ASJ Sh. V.B.Gupta (as his Lordship then was) while granting bail had imposed the conditions keeping in mind the serious nature of offence and role of the accused. In my opinion there are no grounds to modify the same”.
The petitioner has assailed the said order dated 08th December, 2011 of ASJ and sought modification of the aforesaid conditions of the bail order dated 03rd June, 2006. It is submitted that the petitioner was earlier engaged in travel agency business and was required to travel abroad and since the permission was declined by the Trial Court on two occasions and he could not travel, he had to ultimately close his said travel and tour business. It is further submitted that the petitioner is now engaged in consultancy of drugs and medicines for CIS countries and his business requires travelling to these countries. It is submitted that the procedure for seeking permission from the Trial Court for going abroad was cumbersome inasmuch as every time, he was to furnish FDR and also obtain NOCs from two sureties which takes considerable time. It is submitted that the petitioner has his permanent residence and business at Delhi and his wife, who is one of his sureties is also employed in a permanent Government service in Delhi for the past 19 years. It is next submitted that the petitioner has already gone abroad four times with the permission of the Trial Court and has never violated or misused the liberty granted to him.
Per contra, it was submitted by the learned Standing Counsel for CBI that the petitioner is involved in the offence of counterfeiting the stamps to different countries, which was an offence against the society at large and that, the case being at the trial stage for recording of the prosecution evidence, the blanket permission would impact and delay the trial of the case. It is submitted that the petitioner has only travelled thrice in the last five years and there does not appear to be any need for blanket permission. It was next submitted that seeking of the permission from the Trial Court for the purpose of going abroad, in any way, cannot be said to cause any inconvenience to the petitioner.
There is no dispute that the petitioner is facing trial in a serious non-bailable offence and that, the Court while exercising discretion to enlarge the accused on bail could impose such conditions as may be deemed fit and appropriate in the given facts and circumstances. The petitioner at the time of his release on bail on 3rd June, 2006 was engaged in travel and tour business in different countries. The court while exercising its discretion in granting bail imposed the aforesaid conditions. Invariably, the courts do impose some conditions with the objective to ensure not only the fair investigation and trial, but that the accused does not flee from the process of law or tamper with the evidence. It is towards this that in appropriate cases, the accused is also directed to surrender his passport or not to undertake travel abroad without the permission of the court. While imposing any condition at the time of grant of bail, the courts are guided by various factors such as the nature of offence, the status of the accused, his financial condition, his roots in society, his frequency of travelling, his proximity with the witnesses, his contacts here and abroad and propensity to commit offences etc. These are only illustrative and list of such guiding factors cannot be exhaustive. At the same time, the court has to be mindful of the fact that any such condition has to be imposed keeping in view the fundamental right of personal liberty of a person. The conditions which should be imposed must be workable, practical and reasonable and should not be harsh, vindictive and undue infringing personal liberty of a person. The overall object of the imposing such condition has to be kept in mind that is to ensure the submission of the accused to the process of law and not to try to cause any hindrance in the fair trial. It is reiterated that this will all depend upon the wisdom of the judge and the facts and circumstances of each case. There cannot be any straight jacket guideline in this regard.
In the given facts and circumstances, when the petitioner has already travelled abroad several times, now the mere fact of the seriousness or the gravity of the offence alone may not be enough to decline permission to travel abroad. In the present case, the accused was permitted to travel abroad four times and every time, he complied with the conditions imposed by the Trial Court. Of course, he was also denied to travel abroad on two occasions as the Trial Judge did not think it appropriate to exercise discretion at that point of time. It is not that the discretion exercised at that time was arbitrary or non-judicious. The time at which such a discretion is sought to be exercised is also an important factor of relevance. It is noticed that every time, when permission was granted to the petitioner to travel abroad, he submitted FDR of Rs. 1 lakh to be kept alive during the travel period and also NOCs from the sureties. One of his surety is none else but his wife, who is a permanent employee of Delhi Government for the last 19 years. Furnishing FDR and obtaining NOCs at every time on the occasion of visit abroad may be reasonable at one point of time, but then, the same can become onerous and harsh at another point of time. In the given set of system, it may also involve mental torture and running around. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
The petitioner stated having started his consultancy business with CIS countries and so, he would be required to travel abroad frequently. Though, he has travelled abroad only about four times in five years, but, that was presumably because of onerous conditions and the reason of petitioner having stopped his business of travel and tours. In the given facts and circumstances, I am of the view that the petitioner is now entitled to enjoy personal liberty without seeking permission from the court every time under onerous and harsh conditions. In the entire factual matrix, I am inclined to modify the conditions of bail so as to ensure the fair trial and also submission of the petitioner to the process of law. Accordingly, the first and second conditions imposed vide order dated 03rd June, 2006 are modified and substituted as under: (1) The petitioner shall not leave the country without informing the Trial Court a week in advance of his visiting abroad and shall furnish the complete itinerary stating the country/countries, which he intends to visit and the period of his stay as also the addresses where he would be staying and his contact numbers. He shall also inform the Trial Court in writing about his return to India within a week thereof. Further, he shall not travel abroad during the period when the case is listed for evidence and his presence is required, unless already dispensed. (2) While intending to go abroad, he shall furnish a bank guarantee or FDR of Rs. 5 lakhs in the Trial Court, which shall be kept alive till the period he returns and informs the court.
Rest of the conditions of the order dated 03rd June, 2006 shall remain unaltered. The liberty is also granted to the respondent/CBI to get this order revoked in the event of the petitioner failing to comply with these modified conditions at any point of time during the trial. Copy of this order be circulated amongst judicial officers of District Judiciary.
The petition stands disposed of with the above directions and observations.
M.L. MEHTA, J.
MARCH 20, 2012