Under the Indian law, there is a fine line between the rights of the accused and the protection of victims and has been a subject of intense scrutiny. The right to a fair trial and the presumption of innocence are vital principles in Indian jurisprudence. Nevertheless, it is equally essential to ensure that victims have access to justice and protection from potential harm. This article seeks to explore the legal mechanisms and precedents in India that limit the international travel privileges of accused individuals when such travel might compromise the rights and safety of victims. Through this article, we will examine case studies and legal provisions to provide a comprehensive overview of how Indian law addresses this issue. Our goal is to contribute to the ongoing conversation about maintaining a balanced and just legal system in India, where the rights of both accused individuals and victims are respected and protected.
What Does The Law Say?
Section 205 of Cr.P.C.: Magistrate may dispense with personal attendance of accused
- Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.
- But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.
In simple words, when a magistrate sends a summons to someone, he can choose not to require the accused person to appear in person and instead allow him to send his lawyer to represent him if there’s a good reason for it. However, during the course of the legal proceedings, the magistrate can, at his own discretion, decide that the accused person must come in person, and if necessary, he can use the legal procedures available to ensure the accused person shows up in person.
Section 317 Cr.P.C.: Provision for inquiries and trials being held in the absence of the accused in certain cases.
- At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.
- If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.
Section 317 says that, during any stage of a legal inquiry or trial under this law, if the Judge or Magistrate believes that the accused person doesn’t need to be present in court for the sake of justice or if the accused is causing disruptions in court, and the accused has a lawyer representing them, the Judge or Magistrate can decide that the accused doesn’t need to be there and can continue with the legal proceedings without them. However, they can later decide that the accused must be present. If the accused doesn’t have a lawyer, or if the Judge or Magistrate believes that the accused must be in court for some reason, they can either delay the inquiry or trial or decide to separately handle the case of that accused person. They must provide reasons for their decision in writing.
Difference Between Section 205 And Section 317
Applicability: Section 205 is typically used when legal proceedings have already started before a Magistrate, but formal charges are yet to be framed against the accused. It can even be applied at the time of the accused’s first appearance in court.
Exemption Duration: An order issued under Section 205 can exempt the accused from personal attendance, and this exemption continues to be valid even after formal charges have been framed until the conclusion of the trial.
First Appearance: In some cases, the accused can make their initial appearance through their legal counsel, as allowed by the Magistrate.
Authority: The power to apply Section 205 is held only by a Magistrate.
Applicability: Section 317 is generally applied during the trial stage, which means after formal charges have been framed against the accused.
Dispensing with Attendance: It empowers the court to dispense with the personal attendance of the accused during various stages of inquiries and trials, even after charges have been framed.
Authority: The authority to invoke Section 317 can be exercised by both a Session Judge and a Magistrate.
What Does The Court Say?
1.Parvez Noordin Lokhandwalla v. State of Maharashtra, (2020) 10 SCC 77: The court considered the circumstances surrounding an individual, an Indian citizen, and resident of the US since 1985, who had his passport confiscated while facing legal issues in India. The court assessed whether there were valid reasons to deny him permission to travel to the US for a period of eight weeks. Despite the existence of a First Information Report (FIR) against the individual, the court concluded that the FIR alone should not prohibit him from travelling to the US, especially since not permitting his travel could have significant repercussions, including the potential invalidation of his Green Card. The court also took into account the history of litigation between the individual’s family and the complainant. Based on these considerations, the court determined that the High Court had incorrectly rejected the individual’s application for travel modification. Consequently, the court granted permission for the individual to travel to the US for eight weeks. However, this permission came with certain conditions:
1. The individual must provide an undertaking to the court before travelling, committing to return to India after the specified eight-week period.
2. The individual must be present for all scheduled court hearings in India unless specifically exempted from personal appearance.
Furthermore, the court clarified that the individual’s passport would be returned to him to facilitate his travel, but with the condition that he must promptly surrender it to the investigating officer upon his return.
This judgment highlights the court’s commitment to upholding the principles of due process, individual rights, and the importance of judicial review in decisions that may restrict personal liberties, even in the context of ongoing legal proceedings.
2. Praveen Surendiran V. State Of Karnataka & Anr 2022 LiveLaw (Kar) 87: the Karnataka High Court ruled that Section 104 of the Criminal Procedure Code (CrPC) empowers a court to impound various documents placed before it but not passports. The court’s decision came in response to a petition filed by Praveen Surendiran, who was accused in a case involving the alleged embezzlement of crores of rupees from the Manipal Education and Medical Group.
Justice M Nagaprasanna, while allowing Praveen Surendiran’s petition, clarified that the court does not have the authority to impound passports. Instead, passports can only be impounded by the competent authority as per Section 10 of the Passport Act, 1967. The Passport Act is considered a special law and takes precedence over Section 104 of the CrPC. The court criticized the trial court’s decision to withhold the petitioner’s passport until the conclusion of the trial, deeming it unsustainable.
As a result of this judgment, the Karnataka High Court issued a directive to return the passport to Praveen Surendiran within three weeks. However, considering that criminal proceedings are still pending against him and there are concerns that he might try to evade trial, the judge suggested that the authorities, including the Cubbon Park police, could approach the Passport Authority under Section 10 of the Passport Act, 1967, to impound the petitioner’s passport in accordance with the law. This should be done after providing a reasonable opportunity to Praveen Surendiran to present his case. The judge also stated that any travel outside the country by the petitioner would be subject to further orders from the high court, based on the pending writ petition.
3.Maneka Gandhi v Union of India AIR 1978 SC 597: The Maneka Gandhi case indeed had profound implications for the interpretation of Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty. This landmark case expanded the understanding of Article 21 and reaffirmed the fundamental importance of individual rights and due process in the Indian legal system. Maneka Gandhi, a journalist and activist, challenged the Indian government’s decision to confiscate her passport without providing any prior notice or explanation. She argued that this action violated her right to personal liberty, which is protected by Article 21. The Supreme Court’s judgment in this case made several significant points:
a) Right to Travel Abroad: The court ruled that the right to personal liberty under Article 21 encompasses the right to travel freely within the country and abroad. This decision recognized that the government cannot arbitrarily restrict an individual’s freedom to travel beyond national borders.
b) Due Process and Procedural Fairness: The court emphasized that the government cannot impound a passport or take any action that affects an individual’s rights without following due process. This means that individuals must be given a fair opportunity to be heard, and the government must provide reasons for its actions. The principles of natural justice and procedural fairness were upheld as crucial aspects of protecting individual liberties.
c) Rule of Law: The judgment underscored the significance of the rule of law in a democratic society. It emphasized that any action by the state that curtails an individual’s rights must be in accordance with the law and subject to judicial review. This highlighted the importance of legality and accountability in government actions.
d) Expanding the Scope of Article 21: The Maneka Gandhi case expanded the scope of Article 21 to include various aspects of personal liberty, including the right to travel abroad and privacy. It recognized that personal liberty encompasses a broad range of rights and protections.
4.Ganpati Ramnath v State of Bihar 2015 SCC OnLine SC 1878: an accused individual was permitted to travel abroad for medical treatment. This modification of the bail order was granted because the individual had previously travelled abroad multiple times for medical reasons with the court’s permission and had always returned.
5.Pitam Pradhan v. State of A.P., 2014 SCC OnLine SC 1795: the Supreme Court permitted the petitioner therein who was facing a criminal case originating from a matrimonial dispute to travel abroad in connection with his employment.
In conclusion, these cases demonstrate the complex approach taken by Indian courts when deciding whether to allow the accused to leave the country while criminal procedures are still pending. These rulings highlight the Indian judiciary’s dedication to defending constitutional rights and individual liberty in the midst of criminal investigations and travel restrictions.
Why An Accused Shouldn’t Be Allowed To Leave?
If the accused is permitted to leave the nation while the case is still pending, it may be detrimental to the legal system, either directly or indirectly. Indian courts often weigh a number of considerations before deciding whether to allow an accused person to leave the country while criminal proceedings are still pending, in order to address such situations. These considerations can include the nature of the crime, the accused’s ties to the nation, the chance that they will return, and any dangers connected to letting them travel overseas. To reduce some of these dangers, the court may impose requirements like the surrender of passports or sureties. The choice is ultimately determined on a case-by-case basis, with the goal of striking a balance between the rights of the accused and those of justice.
Allowing an accused person to leave the country during the pendency of criminal proceedings can have several disadvantages from an Indian legal perspective:
- Risk of Flight: If an accused person is given permission to leave the nation, there is a greater chance that they won’t return to face their accusations. If found guilty, the accused might therefore avoid punishment and evade the court system as a result.
- Tampering with Evidence: It is more difficult for the authorities to stop an accused person from tampering with evidence or influencing witnesses when they are abroad, particularly if the evidence or witnesses are located in India.
- Proceedings Delay: If somebody accused is permitted to leave the country, it could cause delays in the legal process. The trial process may be prolonged and the administration of justice may be hampered by the requirement for the court to wait for the accused to return.
- Loss of Jurisdiction: If an accused person is allowed to leave the nation, there may be problems with jurisdiction. If the accused commits a crime in India but is permitted to leave, it might be harder to establish jurisdiction over them if they commit other crimes outside of India.
- Public Perception and Fairness: Allowing an accused to leave the nation may be interpreted as special treatment or leniency by the court system, which could erode public trust in the justice system’s fairness.
- International Extradition Challenges: It may be very difficult to extradite an accused person if they leave India for a nation that does not have an extradition agreement with India.
- Precedent Setting: Setting a precedent by allowing one accused to leave the nation could cause other accused people to request similar concessions, potentially swamping the legal system.
- Security Concerns: Allowing an accused person to leave the nation may occasionally raise security issues if they are connected to severe crimes or have access to sensitive data.
- Inequity: Giving an accused individual permission to leave the country could be perceived as unfair treatment because not all accused people may have that option, which could give rise to charges of discrimination.
Cases like Parvez Noordin Lokhandwalla and Praveen Surendiran underline the significance of due process and the law’s nuanced interpretation. Also, the landmark case of Maneka Gandhi expanded the scope of personal liberty, highlighting the right to travel abroad within Article 21 of the Indian Constitution.
In the author’s opinion, this decision is a complex reciprocation between individual rights and societal interests. While protecting the rights of the accused is most important, maintaining confidence in the justice system and ensuring a fair trial are equally vital. Therefore, granting or denying permission for an accused to leave the nation must be meticulously assessed on a case-by-case basis.
In sum, the issue of allowing accused individuals to leave the nation during criminal proceedings encapsulates the judiciary’s crucial role in maintaining a delicate equilibrium between personal liberties and the imperatives of justice within a dynamic legal landscape.
This article is written and submitted by Aditya Kumar Saraswat during his course of internship at B&B Associates LLP. Aditya is a BA.LLB 4th Year student at Aligarh Muslim University.