Madras High Court
K.Zahir Hussain vs The Inspector Of Police on 13 August, 2014
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.08.2014 CORAM: THE HON'BLE MR.JUSTICE M.VENUGOPAL Crl. R.C.No.700 of 2014 K.Zahir Hussain ... Petitioner Versus The Inspector of Police, CBI, ACB, Chennai. ... Respondent PRAYER: This Criminal Revision Petition filed under Section 397 and 401 of Code of Criminal Procedure, against the order dated 13.06.2014 made in CMP No.385 of 2014 in C.C.No.1 of 2014 on the file of the learned II Additional District Judge / Special Judge for CBI Cases, Coimbatore. For Petitioner : Mr.N.Manokaran For Respondent : Mr.N.Chandrasekaran Spl. P.P. For CBI cases, ORDER
The Petitioner/A5, has focused the instant Criminal Revision Petition, against the order dated 13.06.2014, in CMP No.385 of 2014 in C.C.No.1 of 2014 on the file of the learned II Additional District Judge / Special Judge (CBI Cases), Coimbatore.
2. The learned II Additional District Judge / Special Judge (CBI Cases), Coimbatore, while passing the impugned order in CMP No.385 of 2014 (filed by the Petitioner/A5) had among other things observed that the Petitioner/Accused viz., K.Zahir Hussain has not filed any materials to show that he is doing Garment Business at Dubai and also not produced any documents to show that he has to visit Dubai necessarily....'', and resultantly, dismissed the petition.
3. Assailing the correctness of the order dated 13.06.2014 in CMA No.385 of 2014 in C.C.No.1 of 2014 passed by the trial Court, the learned counsel for the Revision Petitioner/A5 contends that the Petitioner/A5, has a strong root in the society and denial of his right to go abroad by the trial Court would amount to depriving his right to lead a comfortable life, which is a fundamental one as enshrined under Article 21 of the Constitution of India.
4. The learned counsel for the petitioner projects an argument that no one could be deprived of his right to travel abroad in terms of Article 21 of the Constitution of India, except according to procedure established by law.
5. The learned counsel for the Petitioner cites a decision of the Hon'ble Supreme Court in Suresh Nanda Vs. Central Bureau of Investigation, reported in 2008 (3) SCC 674, at Special Page 677, whereby and whereunder in Paragraph Nos.4 and 5, it is observed as follows:
4. Learned senior counsel for the appellant also placed reliance on the decision of 5- Judge Bench of this Court in Satwant Singh Sawhney Vs. D. Ramarathnam, Asstt. Passport Officer AIR 1967 SC 1836 : (1967) 3 SCR 525 wherein in para 32, it was held as under:
For the reasons mentioned above, we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that under Article 21 of the Constitution no person can be deprived of his right to travel except according to procedure established by law. It is not disputed that no law was made by the State regulating or depriving persons of such a right.
5. A similar view is reiterated in the decision rendered by 7-Judge Bench of this Court in Maneka Gandhi Vs. Union of India and another (1978) 1 SCC 248 wherein at page 280-81, para 5 it was held as under:
....Now, it has been held by this Court in Satwant Singh's case (supra) that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh's case (supra) was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means 'enacted law' or 'State law' (Vide A.K. Gopalan's case). Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure.....
6. Also in the aforesaid decision, the learned counsel for the Petitioner/A5 refers to Special Page 678 and 679 whereby and whereunder in Paragraph Nos.10 to 12 and 14 to 19, it is observed and held as under.
10. Thus, the Act is a special Act relating to a matter of passport, whereas Section 104 of the Cr.P.C. Authorizes the Court to impound document or thing produced before it. Where there is a special Act dealing with specific subject, resort should be had to that Act instead of general Act providing for the matter connected with the specific Act. As the Passports Act is a special act, the rule that general provision should yield to the specific provision is to be applied. See : Damji Valaji Shah & another Vs. L.I.C. of India & others [AIR 1966 SC 135]; Gobind Sugar Mills Ltd. Vs. State of Bihar & others [1999(7) SCC 76]; and Belsund Sugar Co. Ltd. Vs. State of Bihar and others [AIR 1999 SC 3125].
11. The Act being a specific Act whereas Section 104 of Cr.P.C. is a general provision for impounding any document or thing, it shall prevail over that Section in the Cr.P.C. as regards the passport. Thus, by necessary implication, the power of Court to impound any document or thing produced before it would exclude passport.
12. In the present case, no steps have been taken under Section 10 of the Act which provides for variation, impounding and revocation of the passports and travel documents. Section 10A of the Act which provides for an order to suspend with immediate effect any passport or travel document; such other appropriate order which may have the effect of rendering any passport or travel document invalid, for a period not exceeding four weeks, if the Central Government or any designated officer on its satisfaction holds that it is necessary in public interest to do without prejudice to the generality of the provisions contained in Section 10 by approaching the Central Government or any designated officer. Therefore, it appears that the passport of the appellant cannot be impounded except by the Passport Authority in accordance with law. The retention of the passport by the respondent (CBI) has not been done in conformity with the provisions of law as there is no order of the passport authorities under Section 10(3)(e) or by the Central Government or any designated officer under Section 10A of the Act to impound the passport by the respondent exercising the powers vested under the Act.
14. In our opinion, while the police may have the power to seize a passport under Section 102(1) Cr.P.C, it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 1967.
15. It may be mentioned that there is a difference between seizing of a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document the said property or document is retained for some period of time, then such retention amounts to impounding of the property/or document. In the Law Lexicon by P. Ramanatha Aiyar (2nd Edition), the word 'impound' has been defined to mean to take possession of a document or thing for being held in custody in accordance with law.
Thus, the word impounding really means retention of possession of a good or a document which has been seized.
16. Hence, while the police may have power to seize a passport under Section 102 Cr.P.C. if it is permissible within the authority given under Section 102 of Cr.P.C., it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Cr.P.C.), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that any order which has civil consequences must be passed after giving opportunity of hearing to a party vide State of Orissa Vs. Binapani Dei [Air 1967 SC 1269].
17. In the present case, neither the passport authority passed any order of impounding nor was any opportunity of hearing given to the appellant by the passport authority for impounding the document. It was only the CBI authority which has retained possession of the passport (which in substance amounts to impounding it) from October, 2006. In our opinion, this was clearly illegal. Under Section 10A of the Act retention by the Central Government can only be for four weeks. Thereafter it can only be retained by an order of the Passport authority under Section 10(3).
18. In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. States that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a passport is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh's Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim Generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing.
19. For the aforesaid reasons, we set aside the impugned order of the High Court and direct the respondent to hand over the passport to the appellant within a week from today. However, it shall be open to the respondent to approach the Passport Authorities under Section 10 or the authorities under Section 10A of the Act for impounding the passport of the appellant in accordance with law.
7. Learned counsel for the Petitioner also seeks in aid of decision of the Hon'ble Supreme Court in Satwant Singh Sawhney V. D.Ramarathnam, Assistant Passport Officer, New Delhi and Others, reported in AIR 1967 SC 1836, at Special Page 1843, wherein and whereunder in Paragraph No.23, it is observed as follows:
23. In India, the Supreme Court had made some observations on the scope of personal liberty in Art. 21 in some decisions which throw light on the content of personal liberty. In Gopalan case(1950 SCR 88 : AIR 1950 SC 27) the petitioner who was detained under the Preventive Detention Act, applied under Art. 32 of the Constitution for a writ of habeas corpus and for his release from detention on The ground that the said Act contravened the provisions of Arts. 13, 19, 21 and 22 of the Constitution and in consequence it was ultra vires and that his detention was, therefore, illegal. This Court, by majority, held that Art. 19 of the Constitution has no application to a law which relates directly to the preventive detention even though as a result of an order of detention the rights referred to in Art. 19 are restricted or abridged. This Court was not directly concerned with the question whether the expression 'personal liberty' in Art. 21 takes in the right to travel abroad. Some of the observations made in regard to the limits of the right to move throughout the territory of India in Art. 19 (1) (d) of the Constitution are not of much relevance as the limits of the movement are circumscribed by the said clause itself. But we are concerned in this case with the question whether the right to travel abroad falls within the scope of personal liberty in Art. 21. At page 138, Fazal Ali J., says "There can therefore be no doubt that freedom of movement is in the last analysis the essence of personal liberty, and just as a man's wealth is generally measured in this country in terms of rupees, annas and pies, one's personal liberty depends upon the extent of his freedom of movement. But it is contended on behalf of the State that freedom of movement to which reference has been made in article 1 9 ( 1 ) (d) is not the freedom of movement to which Blackstone and other authors have referred, but is a different _species of freedom which is qualified by the words 'throughout the territory of India'. How the use of the expression 'throughout the territory of India' can qualify the meaning of the rest of the words used in the article is a matter beyond my comprehension. In my opinion, the words "throughout the territory of India" were used to stretch the ambit of the' freedom of movement to the utmost extent to which it could be guaranteed by our Constitution."
8. Furthermore, the learned counsel in the aforesaid decision refers to Special Page 1844 to 1846, in Paragraph Nos.28 to 33, whereby and whereunder, it is observed as follows:
28. In Kharak Singh v. The State of U.P. ([1964] 1 S.C.R. 332, 345, 347) the question was whether the State by placing the petitioner under surveillance infringed his fundamental right under Art. 21 of the Constitution. This Court, adverting to the expression "personal liberty", accepted the meaning put upon the expression 'liberty' in the 5th and 14th Amendments to the U.S. Constitution by Field, J., in Munn v. Illinois( [1877] 94U.S. 113) but pointed out that the ingredients of the said expression were placed in two articles, viz., Arts. 21 and 19, of the Indian Constitution. This Court expressed thus "It is true that in Art. 21 as contrasted with the 4th and 14th Amendments in the U.S., the word 'Liberty' is qualified by the word 'personal' and therefore its content is narrower. But the qualifying adjective has been employed in order to avoid overlapping between those element or incidents of "liberty" like freedom of speech or freedom of movement etc., already dealt within Art. 19(1) and the "liberty" guaranteed by Art. 21 The same idea is elaborated thus :
"We............ consider that "personal liberty" is used in the Article as a compendious term to include within itself all the varieties of rights which go to make up the "personal liberties" of man other than those dealt with in the several clauses of Art. 19(1). In other words, while Art. 19(1) deals with particular species on attributes of that freedom, "Personal liberty" in Art. 21 takes in and comprises the residue."
This decision is a clear authority for the position that "liberty" in our Constitution bears the same comprehensive meaning as is given to the expression "liberty" by the 5th and 14th Amendments to the U.S. Constitution and the expression "personal liberty" in Art. 21 only excludes the ingredients of "liberty" enshrined in Art. 19 of the Constitution. In other words, the expression "personal liberty" in Art. 21 takes in the, right of loco-motion and to travel abroad, but the right to move throughout the territories of India is not covered by it inasmuch as it is specially provided in. Art. 19. There are conflicting decisions of High Courts oil this question. A division Bench of the Madras High Court, consisting of Rajamannar, C.J., and Venkatarama Ayyar. J. in V. G. Row, v. State of Madras([1954] S.C.R. 399,) considered this question in the context of the application filed for the issue of a writ-it of mandamus directing the state of Madras to endorse passport of the petitioner as valid for travel to U.S.S.R. and other countries in Europe. The petitioner there complained that the refusal of an endorsement of the passport to any country was a violation of the fundamental right granted to him under Art. 19 (1) (d) of the Constitution and Art. 14 thereof. The learned Judges considered the scope of a passport and its place in the foreign travel and came to the conclusion that, is the law then stood, the State could not prevent the petitioner from leaving for U.S.S.R. merely on the -round that he did not hold a passport endorsed to that country and that there was no provision of law under which a citizen like the petitioner could be prevented from reentering India after travel to foreign countries except with a passport. On the basis of that finding the Court held on. the assumption that Art. 19(1) (d) would apply to foreign travel, that there was no restriction on that right. It may also be noticed that no argument was advanced before the Bench oil the basis of Art. 21 of the Constitution. This decision does not help the respondents.
29. A full Bench of the Kerala High Court in Francis Manjooran v. Government of India, Ministry of External Affairs, New Delhi(I.L.R. [1965] 2 Kerala 663, 664.) held that the expression "personal liberty" took in the right to travel. M. S. Menon, C.J., observed:
"The right to travel, except to the extent provided in Article 19(1) (d), is within the ambit of the expression "personal liberty" as used in Art. 21.......... Raman Nayar, J., held that the right of free movement whether within the country or across its frontiers, either in going out or in coming in, was a personal liberty within the meaning of Art. 21. Gopalan Nambiyar, J., observed that the right to travel beyond India, or at least to cross its frontiers was within the purview of Art.21 and that personal liberty in Art. 21 was, not intended to bear the narrow interpretation of freedom from physical restraint.
30. Tarkunde, J., of the Bombay High Court in Choithram Verhomal Jethawani v. A.G. Kazi (AIR 1966 Bom. 54) held that the compendious expression "personal liberty" used in Art. 21 included in its ambit the right to go abroad and a person could not be deprived of that right except according to procedure established by law as laid down' in Art. 21. On Letters Patent Appeal a division Bench of the same High Court in A. G. Kazi v. C. V. Jethwani, 68 Bom LR 529 : (AIR 1967 Bom 235) came to the same conclusion. Tambe, C.J., after elaborately considering the relevant case law on the subject, came to the conclusion that the expression "personal liberty" occurring in Art. 21 included the right to travel abroad and to return to India.
31. A division Bench of the Mysore High Court in Dr. S. S. Sadashiva Rao v. Union of India (1965-2 Mys LJ 605) came to same conclusion. Hegde, J., as he then was, expressed his conclusion thus "For the reasons mentioned above, we are of the opinion :-(i) the petitioners have a fundamental right under Art. 21 to go abroad-. (ii) they also have a fundamental right to come back to this country. . . ."
But a full Bench of the High Court of Delhi in Rabindernath Malik v. The Regional Passport Office)-, New, Delhi and others (C.W.No.857-D of 1966, D/- 23.12.66 (Unreported) : (since reported in AIR 1967 Delhi 1) (FB), came to a contrary conclusion. Dua, Acting C.J., -, speaking for the Court, was unable to agree, on a consideration of the language of the Constitution and its scheme. He held that ,'personal liberty" guaranteed by Art. 21 was not intended to extend to the liberty of going out of India and coming back. He was mainly influenced by the fact that Art. 21 applied to non-citizens also and that the Constitution not having given a limited right to move throughout the territories to non- citizens under Art. 19 (i) (d) could not have given a higher right to them under Art. 21.
32. For the reasons mentioned above we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that tinder Art. 21 of the Constitution no person can be deprived of his right to travel except according to procedure established by law. It is not disputed that no law was made by the State regulating ,or depriving persons of such a right.
33. The next question is whether the act of the respondents in refusing to issue the passport infringes the petitioner's fundamental right under Art. 14 of the Constitution. Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This doctrine of equality before the law is a necessary corollary to the high concept of the rule of law accepted by our Constitution. One of the aspects of rule of law is that every executive action, if it is to operate to L the prejudice of any person, must be supported by some legislative authority : see The State of Madhya Pradesh v. Thakur Bharat Singh(C.A.No.1066 of 1965, D/-23.1.1967: (AIR 1967 SC 1170). Secondly, such a law would be void, if it discriminates or enables an authority to discriminate between persons without just classification. What a legislature could not do, the executive could not obviously do. But in the present case the executive claims a right to issue a passport at its discretion; that is to say, it can at its discretion prevent a person from leaving India on foreign travel. Whether the right to travel is part of personal liberty or not within the meaning of Art. 21 of the Constitution, such an arbitrary prevention of a person from travelling abroad will certainly affect him prejudicially. A person may like to go abroad for many reasons. He may like to see the world, to study abroad, to undergo medical treatment that is not available in our country, to collaborate in scientific research, to develop his mental horizon in different fields and such others. An executive arbitrariness can prevent one from doing so and permit another to travel merely for pleasure. While in the case of enacted law one knows where he stands, in the case of unchannelled arbitrary discretion, discrimination is writ large on the face of it. Such a discretion. patently violates the doctrine of equality, for the difference in the treatment of persons rests solely on the arbitrary selection of the executive. The argument that the said discretionary power of the State is a political or a diplomatic one does not make it anytheless an executive power. We, therefore, hold that the order refusing to issue the passport to the petitioner offends Art.14 of the Constitution.
9. Apart from the above, the learned counsel for the petitioner seeks in aid of the following decisions
(a) in the decision of Hon'ble Supreme Court in Smt.Menaka Gandhi V. Union of India and another, reported in AIR 1978 SC 597, in paragraph Nos.40 (Spl.pg.613), 53 (Spl.pg.619), 57 (Spl.pg.624), 73 (Spl.pg.638), 111 (Spl.pg.657), 115 (Spl.pg.658), 117 (Spl.pg.658), 120 (Spl.pg.659) and 145 (Spl.pg.665), whereby and whereunder, it is observed and held as follows:
40. In Satwant Singh Sawhney's case [1967 (3) SCR 525] this Court ruled, by majority, that the expression personal liberty which occurs in Art. 21 of the Constitution includes the right to travel abroad and that no person can be deprived of that right except according to procedure established by law. The mere prescription of some kind of procedure cannot even meet the mandate of Article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary. The question whether the procedure prescribed by law which curtails or takes away the personal liberty guaranteed by Art. 21 is reasonable or not has to be considered not in the abstract or on hypothetical considerations like the provision for a full-dressed hearing as in a court room trial but in the contest, primarily, of the purpose which the Act is intended to achieve and of urgent situations which those who are charged with the duty of administering the Act may be called upon to deal with. Secondly, even the fullest compliance with the requirements of Art. 21 is not the journey's end because a law which prescribes fair and reasonable procedure for curtailing or taking away the personal liberty granted by Art. 21 has still to meet a possible challenge under the other provi- sions of the Constitution. In the Bank Nationalisation case the majority held that the assumption in A. K. Gopalan's case that certain Articles of the Constitution exclusively deal with specific matters cannot be accepted as correct. Though the Bank Nationalisation case was concerned with the inter-relationship of Arts. 31 and 19 and not of Arts. 21 and 19, the basic approach adopted therein as regards the construction of fundamental rights guaranteed in the different provisions of the Constitution categorically discarded the major premise of the majority judgment in Gopalan's case. The test of directness of the impugned law as contrasted with its consequence was thought in A. K. Gopalan and Ram Singh's case to be the true approach for determining whether a fundamental right was infringed. A significant application of that test may be perceived in Naresh S. Mirajkar's case where an order passed by the Bombay High Court prohibiting the publication of a witness's evidence in a defamation case was upheld by this Court on the ground that it was passed with the object of affording protection to the witness in order to obtain true evidence and its impact on the right of free speech and expression guaranteed by Art. 19 (1) (a) was incidental. N. H. Bhagwati J. in Express Newspapers Case struck a modified note by evolving the test of proximate effect and operation of the Statute. That test saw its fruition in Sakal Paper's case where the Court giving precedence to the direct and immediate effect of the order over the form and object, struck down the Daily Newspapers (Price and Page) Order, 1960, on the ground that it violated Article 19(1)(a) of the Constitution. The culmination of this thought process was reached in the Bank Nationalisation case where it was held by the majority, speaking through Shah J, that the extent of protection against the impairment of a fundamental right is determined by the direct operation of an action upon the individual's rights and not by the object of the Legislature or by the form of the action. In Bennett Coleman's case the Court reiterated the same position. It struck down the newsprint policy restricting the number of pages of newspapers without the option to reduce the circulation as offending against the provisions of Art. 19(1)(a). Article 19(1)(a) guarantees to Indian Citizens the right to freedom of speech and expression. It does not delimit the grant of that right in any manner and there is no reason arising either out of interpretational dogmas or pragmatic considerations why courts should strain the language of the Article to cut down amplitude of that right. The plain meaning of the clause guaranteeing free speech and expression is that Indian citizens are entitled to exercise that right wherever they choose regardless of geographical considerations. The Constitution does not confer any power on the executive to prevent the exercise by an Indian citizen of the right of free speech and expression on foreign soil. The Constitution guarantees certain fundamental freedoms except where their exercise is limited by territorial considerations. Those freedoms may be exercised wheresoever one chooses subject to the exceptions or qualifications mentioned in Art. 19 itself. The right to go out of India is not an integral part of the right of free speech and expression. The analogy of the freedom of press being included in the right of free speech and expression is wholly misplaced because the right of free expression incontrovertibly includes the right of freedom of press. The right to go abroad on one hand and the right of free speech and expression on the other are made up basically of constituents so different that one cannot be comprehended in the other. The presence of the due process clause in the 5th and 14th amendments of the American Constitution makes significant difference to the approach of American Judges to the definition and evaluation of constitutional guarantees. This Court rejected the contention that the freedom to form associations or unions contained in Article 19(1)(c) carried with it the right that a workers union could do all that was necessary to make that right effective in order to achieve the purpose for which the union was formed. The fundamental rights in Part III of the Constitution represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. But these freedoms are not and cannot be absolute, for absolute and unrestricted freedom of one may be destructive of the freedom of another. In a well ordered civilised society, freedom can only be regulated freedom. It is obvious that Article 21 though couched in negative language confers fundamental right to life and personal liberty. The question that arises for consideration on the language of Art. 21 is as to what is the meaning and content of the words .personal liberty' as used in this Article. In A. K. Gopalan's case a narrow interpretation was placed on the words 'personal liberty.' But there was no definite pronouncement made on this point since the question before the court was not so much the interpretation of the words 'personal liberty' as the interrelation between Arts. 19 and 21. A.K. Gopalan v. State of Madras [1950] SCR 88 and Kharak Singh v. State of U. P. & Ors. [1964] 1 SCR 332 referred to. In Kharak Singh's case the majority of this Court held that 'personal liberty' is used in the Article as a compendious term to include within itself all varieties of Tights which go to make up the personal liberties of man other than those dealt with in several clauses of Article 19(1). The minority however took the view that the expression personal liberty is a comprehensive one and the right to move freely is an attribute of personal liberty. The minority observed that it was not right to exclude any attribute of personal liberty from the scope and ambit of Art. 21 on the ground that it was covered by Art. 19(1) It was pointed out by the, minority that both Articles 19(1)and 21 are independent fundamental rights though there is a certain amount of overlapping; and there is no question of one being carved out of another. The minority view was upheld as correct and it was pointed out that it would not be tight to read the expression 'personal liberty' in Art. 21 in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in Art.19(1). The attempt of the Court should be to expand, the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wavelength for comprehending the scope and ambit of the fundamental rights has been set by the Court in R. C. Cooper's case and the approach of the Court in, the interpretation of the fundamental rights must now be in tune with this wave length. The expression 'personal liberty' in Art. 21 is of the widest amplitude and covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental, rights and given additional protection under Art. 19(1). Thus Articles 19(1) and 21 are not mutually exclusive. R. C. Cooper v. Union of India [1973] 3 SCR 530 relied on. Shambhu Nath Sarkar v. The State of West Bengal & Ors. Applied. Haradhan Saha v. The State of West Bengal & Ors. followed. This Court held in case of Satwant Singh that personal liberty within the meaning of Art. 21 includes with its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Obviously, the procedure cannot be arbitary, unfair or unreasonable. The observations in A. K. Gopalan's case support this view and apart from these observations, even on principle, the concept of reasonable- ness must be projected in the procedure contemplated by Art. 21, having regard to the impact of Art. 14 on Art.21. The decision of the majority in A. K. Gopalan's case proceeded on the assumption that certain Articles in the Constitution exclusively deal with specific matters and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that Article, no recourse can be had to a fundamental right conferred by another article. This doctrine of exclusivity was overruled by a majority of the Court in R. C. Cooper's case. The ratio of the majority judgment in R. C. Cooper's case was explained in clear and categorical terms in Shambhu Nath Sarkar's case and followed in Haradhan Saha's case and Khudi Ram Das's case. Shambhu Nath Sarkar v. State of West Bengal [1973] 1 SCR 856 referred to. Haradhan Saha v. State of West Bengal & Ors. [1975] 1 SCR 778 and Khudiram Das v. The State of West Bengal & Ors. [1975] 2 SCR 832 relied on.
The law must therefore be now taken to be well-settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing procedure for depriving a person of personal liberty and there is consequently no infringe- ment of the fundamental right conferred by Art. 21, such law ill so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that Article.
53. The first contention urged on behalf of the petitioner in support of the petition was that the right to go abroad is part of 'personal liberty within the meaning of that expression as used in Article 21 and no one can. be deprived of this right except according to the procedure prescribed by law. There is no procedure prescribed by the Passport Act, 1967 for impounding or revoking a passport and thereby preventing the holder of the passport from going abroad and in any event, even if some procedure can be traced in the relevant provisions of the Act, it is unreasonable and arbitrary, inasmuch as it does not provide for giving an opportunity to the holder of the passport to be heard against the making of the order and hence the action of the central Government in impounding the passport of the petitioner is in violation of Article 21. This contention of the petitioner raises a question as to the true interpretation of Article 21, what is the nature and extent of the protection afforded by this article ? What is the meaning of 'personal liberty' : does it include the right to go abroad so that this right cannot be abridged or taken away except in accordance with the procedure prescribed by law ? What is the inter-relation between Art. 14 and Article 21 ? Does Article 21 merely require that there Must be some semblance of procedure, howsoever arbitrary or fanciful, prescribed by law before a person can be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must be fair and reasonable ? Article 21 occurs in Part III of the Constitution which confers certain fundamental rights. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in 'The Indian Constitution-Cornerstone of a Nation', "they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India". They were indelibly written in the sub-conscious memory of the race which fought for well-nigh thirty years for securing freedom from British rule and they found expression in the form of fundamental rights when the Constitution was enacted. These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a "pattern of guarantees on the basic-structure of human rights" and impose negative obligations on the State not to encroach on individual liberty in its various dimensions. It is apparent from the enunciation of these rights that the, respect for the individual and his capacity for individual volition which finds expression there is not a self fulfilling prophecy. Its purpose is to help the individual to find his own liability, to give expression to his creativity and to prevent governmental and other forces from 'alienating' the individual from his creative impulses. These rights are wide ranging and comprehensive and they fall under seven heads, namely, right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies. Articles 14 to 18 occur under the heading 'Right to, Equality', and of them, by far the most important is Article 14 which confers a fundamental right by injuncting the State not to "deny to any person equality before the law or the equal protection of the laws within the territory of India". Articles 19 to 22, which find place under the heading "Right to freedom provide for different aspects of freedom. Clause (1) of Article 19 enshrines what may be described as the seven lamps of freedom. It provides that all citizens shall have the right-(a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property and (g) to practise any profession or to carry on any occupation, trade or business,. But these freedoms are not and cannot be absolute, for absolute and unrestricted freedom of one may be destructive of the freedom of another and in a well-ordered, civilised society, freedom can only be regulated freedom. Therefore, clauses (2) to (6) of Art. 19 permit reasonable restrictions to be imposed on the exercise of the fundamental rights guaranteed under clause'(1) of that article. Article 20 need not detain us as, that is not material for the determination of the controversy between the parties. Then comes Article 21 which provides :
"21. No person shall be deprived of his life or personal liberty except according to procedure established by law."
Article 22 confers protection against arrest and detention in certain cases and provides inter alia safeguards in case of preventive detention. The other fundamental rights are not relevant to, the present discussion and we, need not refer to them.
57. Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated in this article ? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach._ No attempt should be made to truncate its all embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned Within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E. P. Royappa v. State of Tamil Nadu & Another namely, that "from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14". Article 14 strikes, at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the best of reasonableness in order to be in conformity with Article 14. It must be "'right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. How far natural justice is air essential element of procedure established by law. The question immediately arises : does the procedure prescribed by the Passports Act, 1967 for impounding a passport meet the, test of this requirement ? Is it 'right or fair or just' ? The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principle of audi alteram partem. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21. Now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question. If the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J., in Cooper v. Wandsworth Board of Works. "A long course of decision---, beginning with Dr. Bentley's case and ending with some very recent cases, establish that, although there are no positive words in the statute requiring that the party shall be heard, yet-the justice of the common law will supply the omission of the legislature". The principle of audi alteram partem, which mandates that no one shall be condemned unheard, part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are manifested, namely, Nemo Judex in Sua Causa and audi alteram partem. We are not concerned here with the former, since there is no case of bias urged here. The question is only in regard to the right of hearing which involves the audi alteram partem rule. Can it be imported in the procedure for impounding a passport ?
73. There is also another consideration which leads to the same conclusion. The right to go abroad is, as held in Satwant Singh Sawhney's case, included in personal liberty' within the meaning of Article 21 and is thus a fundamental right protected by that Article. When the State issues a passport and grants endorsement for one country, but refuses for another, the person concerned can certainly go out of India but he is prevented from going to the country for which the endorsement is refused and his right to go to that country is taken away. This cannot be done by the State under Article 21 unless there is a law authorising the State to do so and the action is taken in accordance with the procedure prescribed by such law. The right to, go abroad, and in particular to a specified country, is clearly right to personal liberty exercisable outside India and yet it has been held in Satwant Singh Sawhney's case to be a fundamental right protected by Article 21. This clearly shows that there is no underlying principle in the Constitution which limits the fundamental rights in their operation to the territory of India. If a fundamental right under Article 21 can be exercisable outside India, why can freedom of speech and expression conferred under Article 19(1) (a) be not so exercisable ?
111. To sum up, personal liberty makes for the worth of the human person. Travel makes liberty worthwhile. Life is a terrestrial opportunity for unfolding personality, rising to higher states, moving to fresh woods and reaching out to reality which makes our earthly journey a true fulfilment- not a tale told by an idiot full of 'sound and fury signi- fying nothing, but a fine frenzy rolling between heaven and earth. The spirit of Man is at the root of Art. 21. Absent liberty, other freedoms are frozen.
115. If Article 21 includes the freedom of foreign travel, can its exercise be fettered or forbidden by procedure established by law ? Yes, indeed. So, what is 'procedure' ? What do we mean by 'established' ? And What is law ? Anything, formal, legislatively processed, albeit absurd or arbitrary ? Reverence for life and liberty must over power this reduction an absurdem' Legal interpretation, in the last analysis, is value judgment. The high seriousness of the subject matter-life and liberty-desiderates the need for law, not fiat. law is law when it is legitimated by the conscience and consent of the community generally. Not any capricious but reasonable: mode ordinarily regarded by the cream of society as dharma or law, approximating broadly to other standard measures regulating criminal or like, procedure in the country. Often, it is a legislative act, but it must be functional, not fatuous.
117. So I am convinced that to frustrate Art. 21 by relying on any formal adjectival statute, however, filmsy or fantastic its provisions be, is to rob what the constitution treasures. Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within, Art. 21 has to be fair, riot foolish, carefully designed to, effectuate. not to subvert, the substantive right itself. Thus understood, 'procedure' must rule out anything arbitrary freakish or bizarre. A valuable constitutional right can be canalised only by civilised processes. You cannot claim that it is a legal procedure if the passport is granted or refused by taking loss, ordeal of fire or by other strange or mystical methods. Nor is it tenable if life is taken by a crude or summary process of enquiry. What is fundamental is life and liberty. What is procedural is the manner of its exercise,. This quality of fairness in the process is emphasised by the strong word ,established which means 'settled firmly not wantonly whimsically. If it is rooted in the legal consciousness of the community it becomes ' established' procedure. And 'Law' leaves little doubt that it is normally, regarded as just since law is the means and justice is the end.
120. To sum up, 'procedure' in Art. 21 means fair, not formal procedure. 'Law' is reasonable law, not any enacted piece. As Art. 22 ,specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detentions should conform to Art. 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Art. 21 are available. Otherwise, as the procedural safeguards contained in Art. 22 will be available only in cases of preventive and punitive detention, the right to life, more fundamental than any other forming part of personal liberty and paramount to the happiness, dignity and worth of the individual, will not be entitled to any procedural safeguard save such as a legislature's mood chooses. In, Kochunni (AIR 1960 SC 1080, 1093) the Court, doubting the correctness of the Gopalan decision on this aspect, said :
"Had the question been res integra, some of us would have been inclined to agree with the dissenting view expressed by Fazal Ali, J."
145. Supposing a lawyer or doctor, expert or exporter, missionary or guru, has to visit a foreign country profession-ally or on a speaking assignment. He is effectively disabled from discharging his pursuit if passport is refused. There the direct effect, the necessary consequence, the immediate impact of the embargo on grant of passport (or its subsequent impounding or revocation) is the infringement of the right to expression or profession'. Such infraction is unconstitutional unless the relevant part of Art. 19 (2) to (6) is complied With. In dealing with fundamental freedom substantial justification alone will bring the law under the exceptions. National security, sovereignty, public order and public interest must be of such a high degree as to offer a great threat. These concepts should not be devalued to suit the hyper-sensitivity of the executive or minimal threats to the State. Our, nation is not so pusillanimous or precarious as to fall or founder. if some miscreants pelt stones at its fair face from foreign countries. The dogs may bark, but the caravan will pass. And the danger to a party in power is not the same as rocking the security or sovereignty of the, State. Sometimes, a petulant government which forces silence may act unconstitutionally to forbid criticism from far, even if necessary for the good of the State. The perspective of free criticism with its limits for free people everywhere, all true patriots will concur, is eloquently spelt out by Sir Winston Churchill on the historic censure motion in the Commons as Britain was reeling under defeat at the hands of Hitlerite hordes : "This long debate has now reached its final stage. What a remarkable example it, has been of the unbridled freedom of our Parliamentary institutions in time of war Everything that could be thought of or raked up has been used to weaken confidence in the Government, has been used to prove that Ministers are incompetent and to weaken their confidence in themselves, to make the Army distrust the backing it is getting from the civil power, to make workmen lose confidence in the weapons they are striving so hard to, make, to present the Government as a set of non-entities over whom the Prime Minister towers, and then to undermine him in his own heart, and, if possible, before the eyes of the nation. All this poured out by cable and radio to all parts of the world, to the distress of all our friends and to the delight of all our foes I am in favour of this freedom, which no other country would use, or dare to use, in times of mortal peril such as those through which we are passing."
I wholly agree that spies, traitors, smugglers, saboteurs of the health, wealth and survival or sovereignty of the nation shall not be passported into hostile soil to work their vicious plan fruitfully. But when applying the Passports Act, over-breadth hyper-anxiety, regimentation complex, and political mistrust shall not sub-consciously exaggerate, into morbid or neurotic refusal or unlimited impounding or- final revocation of passport, facts which, objectively assessed, may prove tremendous trifles. That is why the provisions have to be read down into constitutionality, tailored to fit the reasonableness test and humanised by natural justice. The Act will survive but the order shall perish for reasons so fully set out by Shri Justice Bhagwati. And, on this construction, the conscience of the Constitution triumphs over vagarious governmental orders. And, indeed, the learned Attorney General (and the Additional Solicitor General who appeared with him), with characteristic and commendable grace and perceptive and progressive realism, agreed to the happy resolution of the present dispute in the manner set out in my learned brother's judgment.
(b) In the decision in 2004 Crl.L.J. 1281 between Abhijit Sen Vs. Superintendent (Administration) Regional Passport Officer, Kolkata and Others, at Special Page 1285 and 1286 in paragraph Nos. 11 and 12, it is observed as follows:
11. In order to decide the said question we may look into Section 190 Cr.P.C., which prescribes the condition required for initiation of proceedings. Thus, proceedings before a Magistrate is initiated when the cognizance is taken by the Magistrate. A cognizance by a Magistrate is taken when a complaint is received by the Magistrate or upon police report of such facts or upon information received from any person other than police officer or upon his own knowledge that such offence has been committed. But when cognizance is taken upon receiving a complaint under Clause (a) of Sub-section (1) of Section 190, the Court does not do anything except directing investigation under Section 156(3) by the police officer. Therefore, we cannot accept this direction to the police officer or investigation to be a proceeding taken by the Court. It may be a cognizance of the complaint but not a cognizance of the offence. Inasmuch as this is a stage for investigation as to whether the complaint lodged disclose a case to be proceeded with and for report. Therefore, Clause (a) of Section 190 Cr.P.C. does not initiate the proceeding within the meaning of Section 10(2)(e) of the Passport Act. But as soon as a Police report within Section 190(1)(b) is taken cognizance of the proceeding is initiated before a Criminal Court. Since the next steps are the steps for taking evidence on oath and it makes it a judicial proceedings within the meaning of Section 2(i) Cr.P.C. The proceeding referred to in Section 10(2)(e) imposes a restriction on a person on hife movement out of India. Article 19(1)(g) may not be affected if a passport is impounded, since the impounding does not prevent the citizen from moving inside India. He ceases to have any right to leave India. But this right of movement to leave India cannot be restricted except by an authority of law. A restriction on such right when the citizen wants to leave India in connection with his business definitely infringes his right to carry on business, if not wholly but partially. This fundamental right, which is being interfered with must have sanction of law. A sanction of law cannot be lightly construed. Therefore, when construing the implication of Section 10(2)(e), it has to be construed in a manner so as not to incorporate or encompass each and every case and thereby interfere with the right of person to move freely outside India in connection with his business.
12. The proceeding that has been referred to in Section 10(2)(e) is a proceeding in respect of an offence pending before a Criminal Court. A proceedings is pending before a Criminal Court as soon as the cognizance is taken. In case there is no delay in filing the chargesheet, the cognizance could have been taken as a matter of course and the question would have been different. But in a case where the cognizance is dependent on consideration of delay, until the delay is condoned the Court is not empowered to take cognizance. A criminal case is initiated only when the cognizance taken. The presentation of the charge-sheet before a Criminal Court may not entitle the Court to take the cognizance of the offence beyond time on the face of it. A distinction is to be drawn in the two kinds of cases: (i) where cognizance can be taken where there is no delay and (ii) where cognizance can be taken only after condoning the delay. In the latter case, in which the delay is condoned and cognizance taken, it is a proceeding is pending before a Criminal Court.
(c) In the decision in Balram Singh Parihar Vs. Union of India and another, reported in AIR 2005 Uthranjal 59, at Special Page 60 in Paragraph No.3, it is observed as follows:
3. Having considered the materials placed on record and the submissions made by the learned Counsel for the parties, we are of the view that Annexure 11 is liable to be quashed and the first respondent is liable to be directed to reconsider the petitioner's appeal and to pass fresh orders in accordance with law. Section 10(3)(e) of the Passport Act 1967 authorises the Passport authority to impound or cause to be impounded or revoke a passport or travel document 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. To invoke the power under Section 10(3)(e) it is not necessary that the proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document should have been pending at the time of issuing the passport, or travel document. In other words, the said power can be invoked even if the criminal proceedings were initiated after the issue of the passport or travel document. For invoking the power under Section 10(3)(e) it is also not necessary that there should be an order by the Court prohibiting the holder of the passport from travelling abroad or directing to impound the passport or travel document. In other words, even In the absence of an order prohibiting the holder of the passport or travel document from travelling abroad or directing to impound the passport or travel document, if the passport authority is satisfied that, it is necessary to impound or revoke the passport or travel document, he is entitled to do so after recording such a satisfaction. Annexure 5 Order dated 2-4-2003 was admittedly issued by the second respondent under Section 10(3)(e). But there is no specific statement in the order that he was satisfied that the passport should be impounded in view of the pendency of the criminal cases against the petitioner. In Annexure 11 Order passed by the appellate authority, there is no indication that the appellate authority is satisfied that the petitioner's passport should be impounded in view of the pendency of the criminal cases against him. On the other hand, the order indicates that the appellate authority has no objection to the petitioner travelling abroad during the pendency of the criminal cases against him. At the same time, in Annexure 11 Order the first respondent has stated that: for restoring the passport, facilities to the petitioner, the Court should not have any objection to the petitioner travelling abroad while the case is pending against him. In our view, Annexure 11 Order is arbitrary, unjust and illegal in the circumstances of the case. The petitioner had categorically stated that there is no order passed by any Court prohibiting him from travelling abroad or directing to impound his passport. The respondents also do not have any case that any order has been passed by any Court prohibiting the petitioner from travelling abroad or directing to impound his passport. In such circumstances, the petitioner cannot be asked to produce any order from the Court stating that the Court has no objection to the petitioner travelling abroad. When the passport authority has ample powers under Section 10(3)(e) of the Passport Act 1967 to impound the passport even in the absence of any order of prohibition by the Court, it is unnecessary and illogical to direct the petitioner to produce an order from the Court stating that the Court has no objection to the petitioner travelling abroad while the criminal cases are pending against him. In the absence of any order of prohibition by any Court of law, it was for the first respondent to consider and decide whether it is necessary to impound the passport of the petitioner on the ground that the criminal cases are pending against him. The satisfaction of the authority under Section 10(3)(e) of the Passport Act is not dependent on any order of the Court conveying no-objection to the foreign travel of the holder of the passport/ travel document. If the appellate authority was not satisfied that it was necessary to impound the petitioner's passport, he should have allowed the appeal of the petitioner and directed the second respondent to return the passport to the petitioner without imposing any such condition as stated in Annexure 11 Order.
(d) In the decision in Jose Peter Vs. C.K.Vijaya Kumar, reported in AIR 2009 Kerala 184, it is held that an order for impounding or revoking passport of a holder without affording him an opportunity to show cause, is an infringement of his personal liberty.
10. In effect, the submission of the learned counsel for the Petitioner/A5 is that the right to leave India and travel outside India and return to India is a part of personal liberty enshrined under Article 21 of the Constitution of India. Furthermore, there is no law placing any restrictions on the citizens of a country to travel abroad.
11. Lastly it is the contention of the learned counsel for the petitioner that the petitioner's passport has not been impounded in view of the pendency of the criminal case and in fact his passport was handed over to him in pursuance to the order passed by the trial Court and as such the trial Court should not have any objection to the petitioner travelling abroad while, the main case is pending against him.
12. Per contra, it is the contention of Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI Cases, appearing for the respondent/complaint that the brief allegation of the prosecution case is that on 17.09.2011, Punjab National Bank (PNB), Sankari West Branch, Sankari West, Salem, received Fixed Deposit for Rs.25 Crores from Karnataka Industrial Areas Development Board (KIADB), Bangalore. The said amount was split into Rs.12 Crores and 13 Crores and deposited in Fixed Deposit Account Nos.LR-9 and LR-28 in favour of KIADB, Bangalore for 12 months @ 9.75% p.a. and issued Spectrum Fixed Deposit Receipts dated 17.09.2011. Moreover on 03.10.2011, Spectrum FDR of FD A/c.No.LR019 for Rs.12 Crores was presented at PNB Sankari West, Branch office with a letter dated 01.10.2011, purportedly said to have been issued by KIADB and signed by one Shri H.B.Mosalagi, Finance Controller. As per the letter, the FDR for Rs.12 Crores was pre-closed and the proceeds Rs.12,03,04,300/- was transferred to Account No.31936400563 maintained at State Bank of India, St. Xavier College Branch, Palayamkottai, Tirunelveli District through RTGS by Sh.R.S.Rajakrishnan (A-1), the then Branch Manager of the Bank on 03.10.2011.
13. Added further, it transpires that on 14.09.2012, Shri R.S.Rajakrishnan received a letter dated 07.09.2012 of KIADB, Bangalore along with 2 Spectrum FDRs of FD A/c Nos. LR-19 and LR 28 for Rs.12 Crores and Rs.13 Crores, requesting for payment of the FD on its maturity. Shri. R.S.Rajakrishnan found the two FDRs were coloured Xerox copy and were not the original one issued by the branch. Shri R.S.Rajakrishanan arranged for presentation of original Spectrum FDR of FD A/c No.LR28 for Rs.13 crores issued by the branch on 17.09.2011 through his known friend. The maturity value of the FDR of Rs.13 Crores, Rs.14,17,08,129/- was credited to the account of KIADB, Bangalore. The account No.31936400563 to which Rs.12,03,04,300/- was transferred on 03.10.11 is the account of one M/s.Supreme Tech Solutions maintained by its proprietor Shri B.Prabhu R/o No.4-G/12, Nila Apartments, Viswanathapuram, Ganapathy, Coimbatore and the entire amount was withdrawn by transferring it to other Bank Accounts.
14. The learned Special Public Prosecutor for CBI Cases, appearing for the respondent contends that after completion of investigation, a final report under Section 173 Cr.P.C., was submitted before the learned II Additional District & Sessions Judge and Special Judge for CBI Cases, Coimbatore on 20.02.2014 against Shri.R.S.Rajakrishnan (A-1), Shri B.Rajendran @ Vijay Akash (A-2), Shri V.Sudalai Muthu @ Muthu (A-3), Shri B.Prabhu (A-4), Shri K.Zakir Hussain (A-5, the petitioner), Micro Sales Corporation (A-6) represented by Shri RajuRam @ Sunil Kumar (A-7), Shri S.S.Thirumoorthy @ Moorthy (A-8), Shri P.Sakthivel (A-9), Shri Sundarapandia Kailasam @ Kailasam (A-10), Shri M.Venkatachalam @ Venkatesh (A-11), Shri Sahur Hameed (A-12) and Shri Lazer Jayaprakash (A-13) for the offences punishable U/s 120-B r/w 420, 409, 465, 467. 468 r/w 471 of IPC and substantive offences thereof and U/s 13 (2) r/w 13(1) (c) & (d) of PC Act, 1988. The trial Court has taken the final report on file vide C.C.No.1 of 2014 and issued process for commencement of trial of the case.
15. The primordial submission of the learned Special Public Prosecutor (CBI Cases) for the respondent is that a prima facie case is made out against the petitioner/A5 and his role in defrauding Rs.12 Crores of KIADB, Bangalore, a Government body, FD amount and further that the presence of the petitioner is very much essential for the progress and completion of the trial of the case on due date.
16. Advancing his arguments, the learned Special Public Prosecutor (CBI Cases) for the respondent, proceeds to submit that there are reasons to believe that the Petitioner/A5, would flee from the course of justice, if CMP No.385 of 2014 in C.C.No.1 of 2014, is allowed.
17. It is not in dispute that the Petitioner/A5 was arrested on 25.06.2013, by the respondent/complainant. Admittedly, the petitioner was granted bail on 16.07.2013 by the trial Court.
18. It is to be pointed out that ordinarily conditions will be laid down by a Court of Law in order to secure the presence of Accused before the investigation officer or before Court, to prevent him from fleeing the course of justice, to prevent him from intimidating or inducing the witness or to prevent him from tampering the evidence or to maintain law and order and for placing restrictions, on the movement of accused in a certain area.
19. It is of vital importance to ensure that an accused is not able to flee the country to escape trial and this consideration will linger in the mind of Court based on the gravity of offence alleged against the Petitioner/Accused and also cemented upon the facts and circumstances of a given case. As a matter of fact, 'Business Considerations', cannot be given primacy over the gravity of the offence alleged against the Petitioner/Accused. To put it differently, the 'Business' cannot be put in the forefront at the time of seeking permission from the Court of Law to travel abroad, in as much as the Business/ Official Considerations/Works of the Petitioner cannot override the seriousness of the offence with which, he is involved under various Sections of Indian Penal Code along with the Prevention of Corruption Act.
20. It is to be remembered that the words 'Interlocutory Order' are used in a restricted manner. In fact, it is an order of transitory or temporary nature. But it is not always converse of the words 'Final Order'. The purpose of Section 397 of the Cr.P.C., is to keep an 'Interlocutory Order' outside the ambit of power of revision so as to enable the trial Court to proceed with an enquiry or trial without any hindrance or delay whatsoever. An 'Interlocutory Order', may be conclusive with reference to the stage at which it is made and may also be conclusive as to an individual, who is not a party to the enquiry or trial against whom it is directed as per the decision of the Hon'ble Supreme Court in Parameshwari Devi Vs. The State, reported in AIR 1977 SC 403.
21. There is no two second opinion of the fact that the right to go abroad is the personal liberty of the individual. It is true that as on date there is no order for impounding the passport of the petitioner. But as far as the Petitioner/A5, is concerned, he is involved in C.C.No.1 of 2014 and a final report was filed before the trial Court. Although, the Petitioner/A5, has assigned reasons in C.M.P.No.385 of 2014 on the file of the trial Court that he has business of Real Estate and Transport and Travels business in and around Tamilnadu and other places and also having garment export business, iron scrap import business at Dubai and due to his business work, he has to go to Dubai Office for his internal audit and other official works and therefore, his petition for seeking permission to visit Dubai may be allowed, etc., this Court is of the considered view that in the main case there are 13 accused and A12 is absconding and in view of the seriousness and gravity of the present case, in which the Petitioner/A5, is involved along with other accused, the petition filed by the Petitioner/A5 before the trial Court in CMP No.385 of 2014 in C.C.No.1 of 2014, cannot be allowed by this Court and also that the Petitioner/A5 has not subjectively satisfied this Court in allowing the CMP No.385 of 2014.
22. It is to be noted that although, 'Right To Travel Abroad' is a fundamental right and the same cannot be deprived except by an established 'Due Process of Law', yet this Court is of the considered view that the 'Right To Travel Abroad' is not an absolute one. As a matter of fact, a Court of law is to look into the entire gamut of the facts and circumstances of the case, which the Petitioner/A5 is involved, gravity of the crime, etc. As such the 'Right To Travel Abroad' is not an absolute right in the considered opinion of this Court and the same is subject to certain limitations. When the Petitioner/A5, is involved in a serious crime in Cr.Nos.RCMA1/2012 and RC 0047(A)/2012 on the file of the respondent and also especially in C.C.No.1 of 2014 on the file of the trial Court, this Court is not in a position to accede to the request of the petitioner to travel abroad for the purpose of attending his business work at Dubai office for his internal audit and other official works.
23. Looking at from any point of view and especially taking note of the role played by the Petitioner/A5, as stated by the prosecution in its M. VENUGOPAL,J., ars final report, this Court at this stage, is not inclined to allow the present revision petition. Consequently, the Revision Petition fails.
24. In the result, the Revision Petition is dismissed, for the reasons assigned by this Court in this Revision.
13.08.2014 Index: Yes Internet: Yes ars To The Public Prosecutor, High Court, Madras.
Crl.R.C.No.700 of 2014