Accused Can't Be Denied Right To Pursue Studies Abroad On Mere Apprehension Of Absconding: Punjab & Haryana High Court

The Punjab and Haryana High Court has held that an accused cannot be denied the right to pursue his studies abroad merely on the apprehension that he may flee from justice.

The Court noted that the 21-year-old who was accused under Sections 147, 149, 323, 324, 379, 379-B and 506 of IPC and Sections 3(2) and 3(2)(va) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, had cleared the IELTS test and offered admission for graduation in Germany.

Justice Surya Pratap Singh noted, "It is also relevant to mention here that the petitioner is a 21 years old young boy having a bright future and merely on the ground of apprehension of fleeing from the course of law, if the rights to pursue his study, and build-up career are denied, it will certainly have an adverse impact on his career, and may spoil his future. "

"In fact it will be a travesty, as the reformation is an integral part of our Justice delivery system," the Court remarked.

It opined that, "merely on the basis of apprehension of prosecution the findings returned by the learned trial Court while refusing permission to the petitioner go abroad is not based upon sound legal principles and therefore, there is ample scope for interference and indulgence of extraordinary jurisdiction vested in this Court, in the findings returned by the learned trial Court."

The Court was hearing a plea under Section 528 of the Bharatiya Nagarik Suraksha Sanhita seeking quashing of the order, whereby the Additional Sessions Judge, Hisar dismissed the application of the petitioner-accused in a criminal case, seeking permission to go abroad to pursue higher study.

It was submitted that the petitioner-Anand is on bail and a young boy pursuing his study, and that denial of chance to go abroad for further studies will shatter all his future prospects, amounting to denial of fundamental right to build up his career.

Advocate Nikhil Ghai for the petitioner, submitted that he has clean antecedents and that he is ready to furnish heavy surety as a guarantee for participation in the judicial proceedings.

Opposing the plea, the State counsel submitted that the accused is involved in the commission of an offence of serious nature and that there is every apprehension of his running away from the legal process, if allowed to go abroad.

 After hearing the submissions, reliance was placed on Maneka Gandhi v. Union of India AIR 1978 SC 97 to underscore that personal liberty guaranteed under Article 21 of the Constitution of India is widest amplitude including right to go abroad.

The Court also noted that the Supreme Court in Satish Chandra Verma v. Union of India and others, 2019 observed that the right to travel abroad is an important basic 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.

"The right also extends to private life; marriage, family and friendship are human rights which can be rarely affected through refusal of freedom to go abroad and clearly show that this freedom is a genuine human right," it added.

In the present case, the judge pointed that the denial of permission to go abroad is merely based upon the plea of prosecution that there is an apprehension that, if allowed to go abroad, the petitioner would not be available for trial and he would evade the course of law.

"With regard to above mentioned apprehension, it is relevant to mention that in order to procure presence the petitioner may be asked to furnish heavy surety, as a guarantee for return, and in addition to above, to prevent delay in disposal of trial he may be asked to furnish an undertaking to the effect that his appearance may be exempted and evidence may be recorded in his absence," it added.

The Court found that Trial Court's observation merely on the basis of apprehension of prosecution the findings returned by the trial Court while refusing permission to the petitioner go abroad "is not based upon sound legal principles and therefore, there is ample scope for interference and indulgence of extraordinary jurisdiction vested in this Court."

Stating that the trial Court can impose severe conditions such as heavy surety to ensure participation of the petitioner in the trial, and may also ask for undertaking that the petitioner shall not object if the evidence is recorded in the absence of petitioner, the Court allowed the plea.

Mr. Nikhil Ghai, Advocate for Mr. Nipun Bhardwaj, Advocate for the petitioner.

Ms. Deepali Verma, Asstt. A.G. Haryana.

Mr. Kumesh Dandyan, Advocate for Mr. Pankaj Mehta, Advocate for the complainant.

 Title: ANAND v. STATE OF HARYANA

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