Nemi Chand Jain @ Chandraswami vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 2122 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This Writ Petition has been filed by the petitioner under Article 226 of the Constitution of India praying that this Court should issue directions to the respondent not to prevent petitioner from going abroad and also for directing the respondent No. 2 to release the passport of the petitioner and not to obstruct/restrain the petitioner from exercising his fundamental rights to move freely and to go abroad.

2. The petitioner is involved in several cases under FERA and is on bail in these cases. While granting bail to the petitioner under FERA, conditions were put and one of the condition was that the petitioner shall not leave the country without prior permission of the Court and if he even desires to go out of Delhi he shall give prior intimation to the Enforcement Department about his programme and intimate the addresses and places where he could be contacted. In one of the cases where the bail was granted by Hon'ble Supreme Court, the Hon'ble Supreme Court also put a condition that the petitioner would leave the country only with the permission of the Court and on such condition as the Court may impose in that event.

3. Since it was a condition of bail granted to the petitioner that he could not leave the country without permission of the Court, the petitioner had been applying to the Court from time to time for going abroad. Sometimes permission was granted to the petitioner and sometimes declined depending upon the merits of the reasons put forward by the petitioner. The petitioner's last application was disposed of by ACMM vide order dated 13th December, 2004 declining the permission to travel abroad. This application was a joint application made by the petitioner in all pending complaint cases of FERA. When the application was entertained by the ACMM, CBI intervened into the matter and also made its submissions opposing the application of the petitioner for going abroad. The order of the ACMM dated 13th December, 2004 gives details of the arguments addressed by CBI and one of the reasons for rejecting the application of the petitioner was the apprehension expressed by Enforcement Department and CBI that the accused may flee from the country and may not return back to face the trial in enforcement cases and investigation in the aspect of conspiracy in Rajiv Gandhi Assassination case. Learned ACMM observed that the allegations against the petitioner were serious in nature and possibility that he may not return back to India cannot be ruled out. The learned ACMM also observed that the petitioner failed to adduce any material to authenticate or substantiate need to go abroad.

4. The present petition of the petitioner is opposed by the respondents and the learned Additional Solicitor General informed the Court that investigation against the petitioner in Rajiv Gandhi Assassination case was going on and this should be sufficient ground to deny the petitioner permission to visit abroad. The other ground for opposing the petition is that the petitioner has come to this Court against the order of learned ACMM by way of Writ Petition. Writ Petition is not maintainable against the judicial order of ACMM. The petitioner has other remedy available to him.

5. Right to go abroad has been held as a part of personal liberty under Article 21 of the Constitution of India in case of Maneka Gandhi v. Union of India 1975 (1) SCC 248 wherein Supreme Court observed that personal liberty makes worth of human/person and travel makes liberty worthwhile. However, the personal liberty and the fundamental rights granted to the citizens by Constitution are not absolute and reasonable restrictions, as envisaged under Constitution of India as well as warranted by the Security of State and circumstances, can be imposed by the State. In the present case the petitioner's right to travel abroad was curtailed as a condition for bail. The petitioner was conditionally released on bail in the complaint cases of FERA. The trial of accused under FERA cases is still going on. Since the petitioner is enjoying conditional bail in the complaint cases so long as the condition is not waived of by the Court, the restrictions on the petitioner's personal liberty of traveling abroad shall continue to be there and petitioner will have to seek permission for leaving this country everytime he intends to go abroad and everytime the Court will have to consider the reasonableness of the grounds. Counsel for the petitioner vehemently argued that CBI had no business to intervene nor the pendency of the investigation should have been considered as a ground to refuse the permission.

6. Assassination of ex Prime Minister of India, Sh. Rajiv Gandhi had taken place on 21st May, 1991. The death of 18 persons including of Rajiv Gandhi was investigated by a Special Task Force and the persons responsible for the explosion and causing death of so many persons were booked and put to trial and some of them were convicted and some were acquitted. The Special Task Force had investigated the conspiracy angle as well. Simultaneously, a one man Judicial Commission was also appointed under Commission of Inquiry Act 1952 on 23rd August, 1991 by Government of India. This Commission of Inquiry took about 7 years in giving its report and the report was accepted by Government of India. Government of India constituted a Multi Disciplinary Montiory Agency on 2nd December, 1998 under CBI to further probe into the conspiracy angle. One of the suspects of the conspiracy, as per the report, is the petitioner. About 9 years have passed since the Constitution of MDMA and the CBI is yet to file an additional chargesheet or collect some cogent evidences against the petitioner showing his involvement in the conspiracy. The learned Additional Solicitor General stated that the conspiracy was spread over different countries and it involved an investigation all over the world. Letter rogatories were issued by Government of India. Some of the letter rogatories have been answered while some are yet to be answered. It is stated that answer to 18 of 23 letters are yet to be received. It is also submitted that petitioner was a very influential person and he would be in a position to influence the Governments of various countries wherefrom the replies to the letters rogatory yet to be received, if he is allowed to go abroad. Court should therefore refuse permission to go abroad. It is also submitted that further investigation into the conspiracy was being done under Section 173(8) Cr.P.C. after seeking appropriate order from the TADA Court at Shriparambadur near Chennai.

7. I consider that if any investigating agency investigating a crime considers that presence of any suspect was necessary within India and he should not be allowed to leave the country, the investigating agency should request the State/Central Government for passing an appropriate order under the Appropriate provisions of law, for putting restrictions on the movement of the person. If investigation of a case continues for years together, without an iota of evidences having been collected, the personal liberty of a person cannot be jeopardized only on the ground of investigation being continued. Had there been any additional evidence collected by MDMA or CBI in last 9 years, CBI would have filed additional chargesheet before the Court concerned.

8. This Court need not go into the merits of the Jain Commission Report and the manner in which the petitioner was sought to be made a suspect, though the counsel for the petitioner vehemently attacked the report. Suffice it to say that from 1991 till 2007 now 16 years are over and in 16 years, Special Task Force first constituted to investigate the case and thereafter CBI entrusted with the investigation of conspiracy angle have not been able to collect evidence against the petitioner for filing an additional chargesheet before the TADA Court. Even during arguments of this petition no time frame has specified by CBI to complete the investigation. Out of 23 letters rogatory only 5 replies have been received in the span of 9 years. Replies, to all the letters rogatory as received would not be an end of the investigation. It may take any number of more years, i.e., 16, 20 or 30 years in completing the investigation by CBI and nobody knows what would be the ultimate result. I consider that in the name of pending investigation against an alleged suspect, person's liberty cannot be curtailed. ACMM who considered the application of the petitioner for permission to go abroad should not have taken into account the arguments of the CBI. If CBI had been serious enough in the investigation and would have had any material, it would have requested Union of India to pass an order on executive side, curbing the travel of the petitioner abroad. This would have given petitioner an opportunity to know as to what was evidence against him. Today petitioner does not know what was evidence against him. CBI has not filed any chargesheet. Under these circumstances the liberty of the petitioner on the ground of pending investigation cannot be curtailed.

9. This Court cannot waive of the conditions of bail. The conditions of bail were put by Hon'ble Supreme Court. Petitioner will have to approach the Supreme Court for waiving of the condition. However, it is directed that the Court of ACMM while considering the application of the petitioner for going abroad, should not give a hearing to CBI for opposing the application on the ground of pendency of investigation in Rajiv Gandhi murder case, and the application of the petitioner must be considered on merits only taking into account the pending complaints. The petitioner would be at liberty to move a fresh application to the Court concerned and the Court concerned would decide the application without taking into account the objections of the CBI.

10. With these directions, the petition is disposed of.