Proceedings in the Absence of an Accused
It is a well-known fact that under any developed and civilized judicial system, the principles of natural justice allow an accused person the right to be present at their trial. This does not only familiarize them with the offences under which they are being charged, but also provides them the right to defend themselves and a reasonable opportunity to be heard. Despite the necessity of such a right, courts have been granted the discretion to exempt the personal attendance of the accused under certain circumstances. In consonance with the provisions of Sections 205 and 317 of the Code of Criminal Procedure, 1973, courts have been of the opinion that exemption can be granted from personal appearance as long as they are duly represented by their counsel.1 Hence, if the situation so demands, the absence of an accused does not shatter the foundation of the trial, nor cause a serious threat or impediment to its execution.
While permitting the absence of an accused, due regard must be given to allow the proceedings to function smoothly and efficiently. Courts have found that as long as the accused can ensure the presence of their counsel behind them and consents to any evidence being taken in their absence, then their attendance can be dispensed at ease.2 Additional conditions which determine the continuance of the proceedings in the absence of the accused are the gravity of the offence3 and if the presence of the accused is statutorily mandated4. If the contentions are of a serious nature and the accused is likely to intimidate or suppress any victims or witnesses, then their presence cannot be excused.
The fundamental rule that courts consider is that if the comparative advantage to the case that could be achieved in the accused's presence would be lesser than the suffering of the accused in order to ensure their presence, then they may be excused. To elaborate on the same, Bhaskar Industries5 held that if the objectives of the trial can be fulfilled without the physical presence of the accused in court, then the court is obligated to excuse the absence of the accused in case they were to experience difficulties or hardships in enforcing their presence, without causing prejudice to the prosecution proceedings. Such a discretionary power, however, can be exercised by the courts in exceptional and extraordinary circumstances.6 Hence, proceedings conducted in the absence of an accused are not an anomaly, rather a common occurrence.
Right to Travel Abroad
Under Maneka Gandhi,7 the right to travel abroad has been interpreted within the scope of the fundamental right to personal liberty, under Article 21 of the Constitution, subject to any limitation enforced by a procedure established by law. Following this, courts have also perceived the right to travel abroad as a basic human right, in line with the Universal Declaration of Human Rights.8 The court has been of the view that it is a universal human right, "for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience"9
With respect to an accused person's right to travel abroad freely and unrestricted, the Hon'ble Supreme Court has held that any person subject to a criminal indictment is granted the fundamental right to travel abroad. In Parvez Noordin Lokhandwalla10, the right of an accused to travel abroad can be read within the Right to Dignity, under Article 21, which cannot be superseded by the imposition of disproportionate restrains on the accused in order to secure their presence in the court. Even if an FIR has been registered in the name of the accused, it does not unequivocally curtail their right to move abroad freely.
However, such a right is not an absolute and unfettered one and is subject to reasonable restrictions, as determinable by the court or curtailed by any procedure established by law. Rather, as opined under Baba Dhondiba Misal11, this right can be of a quite restrictive nature as in order to be actualized, it may even require the express approval of the court, only in the case of a legitimate reason. The onus of providing and substantiating the reason lies on the accused and can be contested by the Petitioner.
While granting such a right, the primary reservation in the minds of the court is the successful execution of the proceeding. Courts need to be weary of the situation in order to ascertain the presence of the accused, as and when required, and ensuring that the liberty of the accused is not misused to halt or impede the investigation or obstruct the course of justice.12 Once this right is coupled with the grant of bail to an accused, the court must weigh in the risks and determine certain conditions which would be in the best interest of the rights of the accused, as well as the enforcement of criminal justice.
On the grant of bail to an accused, in order to accord them this right, the terms of the bail can grant indefinite and unrestricted travel or restricted travel with certain terms and conditions for a limited period. Keeping in regard the circumstances, the bail order can be modified in order to accommodate the needs of the accused.13 The court has to exercise an immense degree of care while restricting the accused's right to travel.
Grounds for Allowing Travel Abroad
Courts have recognized the pressing need of allowing accused persons to travel abroad during the pendency of their trial due to the undeterminable duration of any case, which may even proceed for certain years. Hence, restricting an accused person for a time longer than necessary, but within the farce of the pendency of trial, may amount to unreasonable confinement of the accused for years, which is unambiguously and patently unethical and illegal, according to Jitsingh Kalirai.14 Liberty of an individual cannot be curtailed solely because the investigation has been pending for several years.15 In order to refrain from adopting such excessive measures, courts have been swayed to grant the right to travel abroad. However, once the accused chooses to exercise this right, they cannot claim any prejudice on the basis of their absence and shall not challenge their identity as an accused in a pending litigation.16
As the sole concern of such a travel is the efficient functioning of the trial in the absence of the accused, the primary consideration for the courts is whether the presence of the accused can be enforced at the time of trial. This can be enforced by demanding an undertaking from the accused, acting as the assurance of their presence, as the case need be, which would deter them from absconding or fleeing in order to escape prosecution. Keeping in mind that this right is not absolute, its premise is the compliance that is expected on behalf of the accused.
Through judicial interpretations of this right, no definite and inclusive list of grounds has been provided on which the right to travel abroad can be granted. In each case, the facts and circumstances must be taken into consideration while approving the travel. The onus on the accused requires that they must further substantial and material reasons to the court signifying their need to travel abroad. The urgency and dire need for the reason would be scrutinized by the court to a great degree. This may even compel the accused to further documents or any proof which arise the need to travel, e.g. letter of appointment in case of travelling for employment17.
Commonly, an accused can be granted this liberty on the grounds of medical necessity, where they would be required to travel abroad in order to obtain certain medical facilities and treatments, a trend that was realized in Ganpath Ramnath.18 Denial of travel, in such a scenario, cannot be refused as it may be viewed to be prejudicial to the health of the accused.19 However, the availability and standard of similar amenities or procedures within India would be a deterring factor as the accused may exploit such a path of relief in order to abscond. But the weightage to the humanitarian concerns towards the accused's health would take priority, keeping in consideration the facts and circumstances of the case.20 Such scenarios of emergencies can even call for the amendment of a bail order by the court, on the consideration of such a necessity. Other situations of exigencies or urgencies, which may function as a ground, include travelling for family emergencies21, in order to secure or retain an employment22, etc.
Another factor of consideration would be the travel history of the accused, which would be analyzed in order to assess their need to travel. If they travel frequently for personal or employment purposes and such evidence can be furthered to the court, then it shows their bona fide intent to travel. Such records prove to show the necessity of the travel and their tendency to return to India. Similarly, previous requests of foreign travel would form part of the court's deliberations. If the record of the accused shows that on certain grounds they were earlier granted the liberty, and if they had complied with the restrictions and terms imposed on their travel, the Court would be persuaded to afford the same liberty again.
Courts have been hesitant in employing the unnecessarily restrictive approach of demanding the accused to authorize each and every time they plan to travel abroad. In certain cases, courts have allowed a blanket permission to travel freely within a certain period, within which each and every trip need not be sanctioned by or communicated to the courts. Rather, the accused can provide the court with an intimation of the same with a reasonable period of notice. This step has been taken in the interest of frequent travelers and is coupled with an undertaking.
Conditions and Restrictions Imposed on the Travel
Taking into account that the accused would not be present in the country during the pendency of the trial, it creates a precarious situation which requires the courts to tread lightly while agreeing to their visits. In case certain developments are made which concretize the culpability of the accused and the trial nears completion, then a mechanism is required to be kept in place to not only track and trace the accused, but also effectively ensure their return into the country. To the effect of the same, various measures have been carried out such as the furnishing of an undertaking. These undertakings function to the effect of mandating the presence of the accused as and when required by the court, coupled with a penalty or legal consequences in case of a default.23 On the same lines, the presentation of a surety bond may be mandated, requiring the deposit of security in terms of money or temporarily handing over the title of assets.24 Such documents carrying legal weight provide an assurance to the court and act as a condition precedent to granting the right to travel abroad.
While agreeing to such terms, the accused can be placed under a duty to afford the prosecution the means of tracking or knowing their whereabouts and providing them the itinerary of their trip, address of residence in the foreign country and relevant contact numbers. The provision of a detailed itinerary, containing the exact schedule and locations, instills the confidence of the court in the accused. Extreme circumstances may even require the court to assign a police personnel or security officer to accompany the accused to the foreign country in order to put their movement and activities under surveillance, at the expense of the accused. They would be authorized to travel with the accused and keep a comprehensive account of their whereabouts at all times.25
The court may even enforce the involvement of an Investigating Officer (IO) and bestow certain responsibilities on them to guarantee the accused's compliance. Travel abroad would then be permitted with the assignment of duties to the IO to impose any suitable conditions to secure the petitioner's attendance at any latter stage for the purposes of investigation or trial.26
In case of a non-recurring travel, the accused might be required to comply with the condition that on their return, they shall present themself before an IO and deposit their passport, till further directions from the court, accepted as a commonly followed rule under Pitam Pradhan.27 Directions regarding the discharge of their passport and subsequent travels would be dependent upon the developments made during the trial, as well as the compliance and conduct of the accused.
Grounds for Refusal
Primary grounds for refusal are the apprehension and likelihood of absconding. If any factors substantiate material grounds for assuming that the accused is likely to abscond or deter appearance in court, then the court has the authority to deny such travel and take action to execute such a decision. Any application for permission to travel abroad before trial Magistrate, may be denied due to the gravity of the offence.28 If the accused is "involved in serious offences having grave bearing on the society at large"29, then lays a possibility that they may try to intervene with the proceedings or possibly laundering illegal assets or money while abroad and cause a disruption to the effective disposal of justice.
Not only so, but the stage of the trial is also a considerable factor. If the trial is at a crucial stage or nearing completion and the presence is necessary for final arguments, then such travel may not be authorized.
However, they cannot be denied permission to travel indefinitely, as per Suresh Nanda.30 Such a refusal would only be valid for a limited period, to allow the court to correctly assess the situation where the trial is at a nascent stage and cannot make material observations regarding the accused's culpability. The court can pass an order to the effect of expediting the process of the trial so that the accused is not inconvenienced for an unreasonable period of time.31 Denial of this liberty is a huge restriction of a fundamental right of an accused and must only be carried out judiciously and if only the circumstances demand. Irrespective of the conditions imposed by the court, this discretion is limited in nature and does not allow them to continue with severe and repressive conditions which impede the accused's fundamental right to travel abroad.32
Measures Taken to Restrict their Travel
In order to effectuate the restriction on the accused's travel abroad, courts have over innumerous occasions moved for the seizure or impoundment of their passport. Despite that such a move may be viewed to be contrary to personal liberty and dignity under Article 21, but if the seizure or impoundment is in line with the safeguards enshrined under Maneka Gandhi33 , it would be constitutional and valid. Under the Criminal Procedure Code, Section 102(1) authorizes a police officer to seize any documents in relation to the commission of an offense, which includes the seizure of the passport of an accused. The police officer must judiciously exercise this power as it is ultimately subject to the scrutiny of the court. Despite that the Police is granted the right to seize a passport temporarily, they cannot impound the same. The authority to impound a passport lies exclusively with the Passport Authority, stripping the Police and any other law enforcement agency the power to do so.34 This power is subject to the discretion of the Passport Officer and, if the case need be, the Chief Passport Officer.
Section 10(3) of the Passports Act, 1967 on providing for the impoundment of passports or any travel document by the Passport Authority reads:
"(e) If proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India;"
In the case that it is brought to the notice of the Passport Authority that a warrant or summons for the appearance or a warrant of arrest has been issued against an accused by a court of competent jurisdiction, under the authority of law, then Section 10(3)(h) provides a supplementary ground of impounding of their passport. The same would apply in the case of an order by a court, latently prohibiting the departure of the accused from India, to the satisfaction of the Passport Authority. In order to effectuate the same, the Passport Authority must provide the reasons in writing for the revocation of the passport.35
However, such measures cannot be viewed in isolation from their corresponding civil consequences. Binapani Dei36declared that an accused person whose right to travel abroad is being challenged, then they are entitled to a reasonable opportunity to be heard before the impoundment.
Footnotes
1. Noorjahan v. T.T. Moideen and Ors, ILR 2000 (3) Ker 433.
2. Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd., AIR 2001 SC 3625
3. Dr. Prakash Amrut Mody v. State of Jharkhand, 2008 (1) BLJ 58.
4. A. Sundara Pandian v. State, 2019 SCC Mad 1612.
5. Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd., AIR 2001 SC 3625.
6. Ibid.
7. Maneka Gandhi v. Union of India, AIR 1978 SC 597. Also see, Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, AIR 1967 SC 1836.
8. Satish Chandra Verma v. Union of India, 2019 (2) SCT 741.
9. Ibid, at 743.
10. Parvez Noordin Lokhandwalla v. State of Maharashtra, (2020) 10 SCC 77.
11. Baba Dhondiba Misal v. State of Maharashtra.
12. Supra, note 10.
13. Barun Chandra Thakur v. Ryan Augustine Pinto and Ors, 2020 (1) RCR (Cri) 121.
14. Jitsingh Kalirai v. Kulbir Singh Ahuja, 1989 (43) ELT 3 (Bom).
15. Enforcement Directorate v. Nemi Chand Jain, 2008 (101) DPJ 2055.
16. Kanwal Nain Bahadur v. State (NCT of Delhi), 112 (2004) DLT 900.
17. Supra, note 14.
18. Ganpati Ramnath v. State of Bihar, 1990 (1) BLJR 462.
19. Manoj Kumar Babulal Punamiya v. State of Jharkhand.
20. Marie Andre Leclerc v. State (Delhi Administration) and Ors, AIR 1983 SC 1092.
21. K. Mohammed v. State of Kerala, (2003) 10 SCC 220.
22. Tarun Trikha v. State of West Bengal, 2015 (2) SCC 1879.
23. Supra, note 14.
24. Suresh Nanda v. CBI, AIR 2008 SC 1414.
25. Supra, note 11.
26. Pitam Pradhan v. State of A.P. and Anr.
27. Supra, note 10.
28. Shawn Anthony Mendonca v. State of Maharashtra.
29. Supra, note 10.
30. Supra, note 24.
31. Assistant Director, Enforcement Directorate v. Ashok Ramchander Chugani, 2020 (2) BLJ 334.
32. Barun Chandra Thakur v. Ryan Augustine Pinto and Ors, 2020 (1) RCR (Cri) 121.
33. Supra, note 7.
34. Supra, note 24.
35. Section 10(5), Passports Act, 1967.
36. State of Orissa v. Binapani Dei, (1967) IILLJ 266 SC.
By
Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
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