P&H High Court calls for liberal approach when considering plea by accused persons to travel abroad

The Punjab and Haryana High Court on Tuesday emphasised that the courts must take a pragmatic and balanced approach while dealing with applications by accused persons seeking permission to travel abroad [Jonty Chhag @ Jonty Vinay Chhag v State of Haryana].

Justice Sumeet Goel observed that the contemporary world, characterised by an accelerating pace of globalization and seamless interconnectedness, has rendered travel a "quotidian necessity rather than a rarefied privilege".

This paradigm shift necessitates that the Courts must not remain in vacuum or be ensconced in an ‘ivory tower', the single-judge said, while asking the judges to deal with these matters in consonance with evolving social realities and adopt a pragmatic approach.

"When seized of an application by an accused entreating for permission to travel abroad, the Court's deliberation must be moored in this modern socio-legal context. The right to travel abroad has, through the efflux of time and the exigencies of modern life, become so profoundly entrenched and inextricably interwoven with the daily affairs of an individual that it is now an indispensable facet and an ineluctable corollary of the fundamental right to life & liberty, as enshrined under Article 21 of the Constitution," the Court said.

The Court noted that the prosecution usually objects to such cases on two grounds – first, the accused persons will escape and never return to India and two, such foreign travel would delay trial.

It explained that the term ‘likely’ by its inherent semantic nature eludes any singular, precise or universally applicable definition.

"This term demands a nuanced and careful interpretation. It is imperative that ‘likely’ be construed as denoting a reasonable probability  or a palpable probability rather than a mere nascent possibility or a speculative probability. This distinction is crucial because assessing the ‘likelihood of fleeing’ necessitates a predictive judgment concerning future conduct—an inherently complex and often indeterminate task upon which no conclusive adjudication can be made with absolute certainty," the single-judge added.

Thus, the Court said that an expansive interpretation of ‘likely’ would effectively amount to having an insurmountable legal impediment to the grant of permission to travel abroad. 

"The adjudicating Court is obliged, to arrive at a considered determination regarding the accused-applicant’s propensity for fleeing, which ought to be premised upon some discernible, tangible and cogent material on record. To adopt a contrary stance, and equating ‘likely’ with that of a ‘mere conceivable probability’, would risk transforming a conditional structure into an unjustified and absolute permission to travel abroad," the Court stressed.

Secondly, the Court also said that the apprehension of delay in investigation or trial can be addressed by appropriate conditions.

It suggested that an accused can be asked to file an affidavit "that trial proceedings (including recording of evidence) may go on in his absence but in presence of his counsel and he shall remain bound by such proceedings including recording of evidence."

However, the Court also acknowledged that the right of an individual to travel abroad is not an unbridled license and it is amenable to curtailment.

"It is for the Court to effectuate a delicate and judicial balancing act. This equilibrium must be maintained between the fundamental right of the undertrial/accused to pursue his legitimate affairs, both personal and professional & the collective interests of the society and the prosecution to ensure the unwavering presence of the accused before the trial Court, thereby preventing a fait accompli where justice is, frustrated," it said.

Hence, such cases must be considered on their individual merits, the Court said.

It suggested that factors like gravity of allegations, the accused person’s antecedents and roots, the bona fides of the purpose and duration of travel and the accused person’s willingness to furnish security to ensure repatriation can be taken into account.

The Court was hearing a plea of an accused challenging the trial court's refusal to allow him to travel abroad. Considering that he was earlier permitted to travel abroad and that the case is pending since 2018, High Court permitted the petitioner to travel abroad.

Advocate Namit Khurana represented the petitioner.

Additional Advocate General Tarun Aggarwal represented the State of Haryana.

Advocate Abhijeet Chaudhary represented the complainant.

[Read Judgment]