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2010 DIGILAW 2071 (PNJ)

Surinder Kaur v. State Of Punjab

2010-07-21

RAJAN GUPTA

body2010
Judgment Rajan Gupta, J. 1. This petition has been filed under Section 482 Cr.P.C. wherein petitioner has sought permission to go abroad (USA) during the pendency of trial before Sub Divisional Judicial Magistrate, Jagraon. 2. It appears that an FIR was registered against the petitioner and co-accused under Sections 506, 341, 323, 148, 149, 120-B IPC at Police Station Jagraon on 16th November, 2003. The allegation in the FIR was that petitioner alongwith co-accused demolished a wall constructed by the complainant when civil litigation regarding the property was pending between the parties. The petitioner had surrendered before the trial court on 21st November, 2003 and was enlarged on regular bail. 3. Learned counsel for the petitioner has argued that the trial court has wrongly dismissed her application to go abroad. He submits that charge in the case was framed on 18th April, 2004 and thereafter the petitioner had been regularly appearing before the trial court. According to him, there is, thus, no apprehension of the petitioner fleeing from justice. He has relied upon judgment of this court reported as Chaitali v. State of Punjab, 2004(3) RCR (Criminal) 521 in support of his contention that petitioner has a right to travel abroad during the pendency of trial. 4. Learned State counsel has, however, opposed the prayer on the ground that daughter of the petitioner is already living in USA and there is every possibility that petitioner will not come back to face trial. He has relied upon a judgment of Delhi High court reported as Alok Kumar v. State, 2010(1) R.C.R. (Criminal) 269 to contend that in case of apprehension of prosecution that the petitioner would not return from abroad to face trial, the application would be liable to be dismissed. He further submits that out of total 13 prosecution witnesses, two have already been examined and in the eventuality of the petitioner leaving the country, the trial would be unnecessarily delayed. 5. I have heard learned counsel for the parties and given careful thought to the facts of the case. 6. It is evident that petitioner is facing trial in a case in which she is one of the accused. The trial is at the stage of recording of prosecution evidence and two witnesses have already been examined. 5. I have heard learned counsel for the parties and given careful thought to the facts of the case. 6. It is evident that petitioner is facing trial in a case in which she is one of the accused. The trial is at the stage of recording of prosecution evidence and two witnesses have already been examined. The application has been moved by the petitioner at this stage on the ground that her visa has been sanctioned by the American Embassy from 22nd January, 2010 to 21st July, 2010, thus, it is important for her to go to America and stay there for three months so as to enable her to renew the visa. This is the only ground agitated for permission to go abroad. The petitioner has not stated any compulsive reason to go abroad. The only ground agitated to go abroad is extension of visa already granted by the American Embassy. I am of the considered view that such a ground to go abroad is untenable. 7-8 Admittedly, the case is at the stage of recording of prosecution evidence. Even for extension of visa, the petitioner would necessarily have to stay in USA for minimum three months. This would unnecessarily delay the trial. Since no emergent or compulsive reasons have been given to visit abroad, the present application is devoid of merit. In the judgment relied on by learned counsel for the petitioner in Chaitalis case (supra), complainant had lodged FIR against her husband and other family members under Sections 406, 498-A, 342, 323 read with Section 34 IPC. Since marriage of sister of husband of complainant was fixed in USA, she applied for permission to go abroad. This prayer was declined by the Judicial Magistrate. Against the said order, the petitioner had approached this court wherein this court quashed the order and permitted the petitioner to go abroad subject to certain conditions. However, no such compulsive need has been urged by the petitioner in the instant case. 9. On the other hand, a reply has been filed on behalf of State by way of affidavit of Joginder Singh, Deputy Superintendent of Police, Jagaron, wherein apprehension has been expressed that petitioner, if permitted to go abroad, will not come back to face trial as her daughter is already settled there. Judgment in Alok Kumars case (supra) has been referred to in support of the contention. Judgment in Alok Kumars case (supra) has been referred to in support of the contention. However, without going into apprehension of the prosecution, it may be relevant to refer to judgment of apex court in case reported as Maneka Gandhi v. Union of India, AIR 1978 SC 597. It was held therein that right to go abroad is neither part of Article 19(1)(a) nor Article 19(1)(g) of the Constitution of India. In the said case Section 10(3)(c) of the Passports Act, 1967, was challenged on the ground that same was violative of the right to freedom of speech and expression. This plea was not accepted by the apex court and it was held as follows :- "The right to abroad cannot be said to be part of the right of free speech and expression as it is not of the same basic nature and character as freedom of speech and expression. It is true that going abroad may be necessary in a given case for exercise of the right of freedom of speech and expression but that does not make it an integral part of the right of free speech and expression. Every activity that may be necessary for the exercise of the freedom of speech and expression or that may facilitate such exercise or make it meaningful and effective cannot be elevated to the status of a fundamental right as if it were a part of the fundamental right of free speech and expression. Otherwise, practically every activity would become part of some fundamental right or the other and the object of making certain rights only as fundamental with different permissible restrictions would be frustrated. Therefore, the theory that a peripheral or concomitant right which facilitates the exercise of a named fundamental right or gives it meaning and substance or makes its exercise effective, is itself a guaranteed right included within the named fundamental right, cannot be accepted. The right to go abroad cannot, therefore, be regarded as included in free speech and expression guaranteed under Art. 19(1)(a) on the theory of peripheral or concomitant right." In a later case, reported as Chandraswami and another v. Central Bureau of Investigation, (1998)9 SCC 380, the apex court declined the permission to go abroad, as petitioner was not able to make out any compulsive need. It held as follows :- "3. It held as follows :- "3. Mention has already been made about the two reasons given by the petitioners to go abroad instantly. We are not satisfied with the reasons urged. It is no compulsive need for the petitioners to go abroad and propagate the Hindu religion. There is no material to suggest that the ailments the petitioners claim to have been suffering from, are not treatable in India, satisfactorily. 4. This petition is, thus, allowed in part, so as to modify the condition, as said before. The prayer for permission to go abroad is declined." 10. I am, thus, of the considered view that petitioner in the instant petition has not been able to make out any case for permission to go abroad. There is no medical or other serious ground urged for going abroad at a stage when prosecution evidence is being recorded. Only ground stated in the petition is that petitioners daughter is residing in America and in order to get her visa extended, it is necessary for her to visit that country and stay there for three months. This, in my view, is not a sufficient ground for seeking permission to go abroad. The petition is devoid of merit and is, thus, dismissed. 11. However, keeping in view the fact that FIR in the case was registered in the year 2003 and trial has been pending for quite some time, I deem it fit to direct the trial court to complete the trial as expeditiously as possible, preferably, within a period of three months.