Gauhati High Court
Dibyajyoti Dutta vs Central Bureau Of Investigation on 20 December, 2022
Page No.# 1/9
GAHC010215632022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1082/2022
DIBYAJYOTI DUTTA
S/O SRI PRAFULLA CHANDRA DUTTA
R/O NILGIRI LANE,
BAGHARBARI
SATGAON ROAD, PANJABARI GUWAHATI, ASSAM, PIN-781037
VERSUS
CENTRAL BUREAU OF INVESTIGATION
REP. BY ITS SPECIAL PUBLIC PROSECUTOR.
Advocate for the Petitioner : MR S BORTHAKUR
Advocate for the Respondent : SC, CBI
Page No.# 2/9
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
20.12.2022 Heard Mr. S. Borthakur, learned counsel for the petitioner. Also heard Mr. M. Haloi, learned Special Public Prosecutor, CBI.
2. This application is filed by the petitioner, under Section 482 of the Code of Criminal Procedure, for quashing and setting aside the impugned order dated 26.09.2022, passed by the learned Special Judge, CBI, Assam, Guwahati, whereby, the prayer of the petitioner seeking permission to visit United States of America from 07.01.2023 to 05.02.2023 was rejected, and also prayed for quashing and setting aside the decision of the Investigating Officer in Case No. RC01(A)/2019/CBI-GWH denying the permission to the petitioner to travelling to the United States of America from 07.01.2023 to 05.02.2023.
3. It is submitted by the learned counsel for the petitioner that one F.I.R. was lodged by CBI on 10.02.2019 accusing the petitioner and others for commission of offence under Section 120B of the Indian Penal Code read with Sections 7/7A/8/12 of the Prevention of Corruption Act, 2018, and the said F.I.R. was registered as RC01A/2019/CBI-GWH. The petitioner was arrested in connection with the aforesaid case and was, subsequently, released on bail by this Court vide order dated 11.04.2019 in Bail Application No. 737/2019 with some conditions including the condition No. (ii) "that the accused petitioner shall not Page No.# 3/9 leave the jurisdiction of the learned Special Judge, CBI, Assam, Guwahati, without prior permission of the Investigating Officer," and the condition No. (v) "that the accused petitioner and his bailor shall produce the voter identity card or passport in original and shall remain in the custody of the learned Court below till completion of the investigation."
4. The investigation of the above mentioned case is still pending and till date, the Investigating Agency has not submitted any Charge-Sheet. The petitioner is co-operating with the investigation of the case and also appeared before the Investigating Officer whenever he was called for.
5. The son of the petitioner, namely, Dr. Abhigyan Datta, was accepted into the Neurology Programme at the University of Minnesota Medical School and the official date of starting of the training experience is on 17.06.2022 and the scheduled end date is 30.06.2023 and therefore, the son of the petitioner is presently in United States of America.
6. Under the said circumstances, the petitioner intends to visit to his son in United States of America during the period of 07.01.2023 to 05.02.2023 and it is a rare opportunity for the petitioner to visit the USA while his son is present there. So, to get the permission from the Court as well as from the Investigating Officer, as per order and direction of this Court, the petitioner had filed an application before the learned Special Judge, CBI, Assam, Guwahati, which was registered as Misc(CBI) Case No. 09/2022, praying for permission to visit United States of America from 07.01.2023 to 05.02.2023 subject to issuance of VISA by the concerned agency. The CBI was served with a copy of the aforesaid petition Page No.# 4/9 and reply was also filed on behalf of the CBI, wherein, they objected the prayer of the petitioner mainly on the ground that there is strong possibility of the petitioner fleeing from the justice and not returning to India. Further, the learned Special Judge, CBI, Assam, Guwahati, referred to the conditions imposed by this Court, whereby, the petitioner was directed not to leave the jurisdiction of the learned Special Judge, CBI, Assam, Guwahati, without prior permission of the Investigating Officer. Hence, the learned Special Judge, CBI, Assam, Guwahati, held that allowing the prayer of the petitioner to travel abroad, despite the objection raised by the CBI, would amount to violation of bail conditions imposed by this Court. And, accordingly, vide order dated 26.09.2022, the prayer for permission to travel abroad by the petitioner was rejected by the learned Special Judge, CBI, Assam, Guwahati.
7. It is further submitted by the learned counsel for the petitioner that the petitioner prayed for permission to travel to United States of America only for a short period from 07.01.2023 to 05.02.2023. The right to travel abroad is a fundamental right guaranteed under Articles 19(1)(a) and 21 of the Constitution of India. Such a fundamental right can only be taken away by a procedure established by law. The right to travel abroad is regulated by the Passport Act, 1967, and Section 6 (1) of the said Act prescribes the ground on which the passport authority can refuse to make endorsement for visiting foreign country. The apprehension of the investigating agency is not reasonable and there is no materials to show existence of any such apprehension of fleeing by the present petitioner. But, in the present case, the I.O. has arbitrarily and whimsically stated that there is strong possibility of the petitioner fleeing from justice and not returning to India. The petitioner is a permanent government employee of Page No.# 5/9 Indian Oil Corporation and is holding a very senior position, i.e. the General Manager, and his employment is the only source of his income and the entire family also depends on his income. The petitioner was last required for interrogation only on 08.03.2021 and since then, the petitioner did not appear before the investigating agency as he was not called for.
8. The petitioner prayed for permission to travel United States of America for a very limited period only getting the opportunity as his son is presently studying in United States of America that too for a limited period. Moreso, the petitioner on multiple occasion, after his release on bail, travel to different parts of the country for the purpose of his work with due permission from the investigating agency. And, in every occasion, he has returned to the jurisdiction of learned Special Judge, CBI, Assam, Guwahati, as per the commitment made to the investigating agency.
9. Further, the learned counsel for the petitioner relied on the decisions of Hon'ble Bombay High Court passed in Satyarth Pramodkumar Priyadarshi Vs. State of Maharashtra, reported in 2019 SCC OnLine Bom 8058; Rajendra D. Swamy Vs. State of Maharashtra & Anr., reported in 2019 SCC OnLine Bom 7573; and Deepak @ Baba Dhondiba Misal Vs. State of Maharashtra, reported in 2015 SCC OnLine Bom 8119. The learned counsel also relied on a decision of Hon'ble Apex Court passed in Central Bureau of Investigation Vs. Karti P. Chidambaram & Ors., reported in 2017 SCC OnLine SC 1473, wherein, the Hon'ble Apex Court granted the permission to go abroad for the purpose of admission of his daughter at Selwyn College, Cambridge, United Kingdom.
Page No.# 6/9
10. On the other hand, the learned Special Public Prosecutor, CBI, has submitted that the voice sample of the present petitioner has not yet been recorded, which is required for the purpose of investigation and no urgency is shown by the petitioner to go abroad and hence the learned Court below rightly passed the order rejecting the prayer for permission to go abroad by the present petitioner. The learned Special Public Prosecutor, CBI, further submitted that if the petitioner is allowed permission to visit abroad, there is every likelihood of delaying the investigation of the case and he will also evade from facing the trial by extending his stay in abroad on one or the other pretext or he may flee from abroad to another foreign country with which our country has no extradition treaty and specially flee away from justice and accordingly, prayed to reject the petition of the present petitioner for the interest of justice and for fair and speedy disposal of the case.
11. In this context, the learned counsel for the petitioner has submitted that the prayer for recording of voice sample is rejected by the learned Court below on the objection raised by the present petitioner, but that cannot be a ground to debar the present petitioner to go abroad only for a limited period for his son. The petitioner also visited various places of India with permission of CBI and within a time, he returned and reported before the CBI. He is still ready to co- operate the Investigating Officer in the further investigation of this case, though since long he has not been called for by the investigating agency for the investigation of this case.
12. After hearing the submissions of learned counsels for both sides, I have carefully perused the case record and the order passed by the learned Special Page No.# 7/9 Judge, CBI, as well as the Case Diary produced by the learned Special Public Prosecutor, CBI.
13. It is the admitted fact that there were some terms and conditions while the petitioner was granted with bail along with other conditions. One condition put by this Court that the accused shall not leave the jurisdiction of the learned Special Judge, CBI, Assam, Guwahati, without prior permission of the Investigating Officer and the learned Court below, considering the conditions imposed by this Court and also considering the submissions and objection raised by the learned counsel appearing for the CBI, it is opined that if the permission is granted to the petitioner to visit abroad, it will be in violation of bail conditions imposed by this Court, which is not at all permissible. With that observation, the learned Special Judge, CBI, Assam, Guwahati, has rejected the prayer of the petitioner for permission to travel abroad. Though, it is observed by the learned Special Judge, CBI, Assam, Guwahati, that right to go abroad by citizens is constitutionally well recognized, however the prayer for the petitioner was rejected on the above mentioned ground.
14. In the instant case, the petitioner gave the detail of period of visit to United States of America and the reasons brought by the petitioner is only to meet his son, who is pursuing his study in United States of America. From the detail of period, it is seen that the petitioner wants permission to go abroad for very short and limited period, i.e. from 07.01.2023 to 05.02.2023. Further, there is no mention in the reply filed by the CBI that the petitioner has violated the terms and conditions of the bail and/or he failed to appear before the Investigating Agency within the limited time whenever he visited any parts of Page No.# 8/9 the country for his official work. Further, the petitioner has the right to object the petition filed by the CBI before the Court seeking permission for taking voice sample and considering his objection, the learned Special Judge, CBI, Assam, Guwahati, rejected the prayer for recording of voice sample and the same cannot be a cause or ground to dismiss or reject the prayer for permission to go abroad.
15. The petitioner also could bring a reasonable and justified ground to go abroad only for a short and limited period and hence, considering the above circumstances of the case and also considering the nature of the offence and in the view of the Hon'ble Supreme Court as well as the other High Courts, I find it justified to permit the petitioner to travel to United States of America for the period from 07.01.2023 to 05.02.2023.
16. Accordingly, the petitioner shall give the details of his itinerary, his address, phone number and contact details to the concerned Court as well as the Investigating Officer and will immediately report to the Investigating Officer on his return from United States of America. Further, the petitioner shall execute a personal bond of Rs. 40,000/- (Rupees fourty thousand) only before the learned Special Judge, CBI, Assam, Guwahati. Further, the bail conditions imposed vide order dated 11.04.2022 is relaxed and the learned Special Judge, CBI, Assam, Guwahati, is hereby asked to handover the passport to the applicant. On his return from United States of America, the petitioner shall deposit his passport before the learned Special Judge, CBI, Assam, Guwahati. Further, the petitioner is allowed to visit abroad/United States of America only for the period, as stated above, and immediately on 05.02.2023 he will report Page No.# 9/9 before the Investigating Agency, i.e. the CBI.
17. With the above observation and direction, the criminal petition stands disposed of.
18. The Case Diary be returned.
JUDGE Comparing Assistant