Punjab-Haryana High Court
Gaurav Raheja vs State Of Punjab on 5 August, 2022
CRM-M-19373-2022 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(251) CRM-M-19373-2022 (O&M)
Date of Decision:- 05.08.2022
Gaurav Raheja ...Petitioner
VERSUS
State of Punjab and another ...Respondents
CORAM: HON'BLE MR. JUSTICE SUVIR SEHGAL
Present:- Mr. Bipan Ghai, Senior Advocate with
Mr. Deepanshu Mehta, Advocate and
Mr. Nikhil Ghai, Advocate for the petitioner.
Mr. Prabhjot Singh Walia, AAG, Punjab
for State-respondent No.1.
Mr. Nitin Meel, Advocate for
Mr. Kulbhushan Raheja, Advocate
for complainant-respondent No.2.
****
SUVIR SEHGAL, J. (Oral)
CRM-26502-2022
Application is allowed as prayed for.
Affidavit dated 27.07.2022 of the petitioner along with valuation
report, Annexure P-17, are taken on record on record.
Main case
By way of present petition filed under Section 482 of the Code of
Criminal Procedure, 1973 (for short "the Code"), petitioner has approached
this Court seeking setting aside of impugned order dated 02.05.2022,
Annexure P-15, passed by learned Judicial Magistrate First Class, Abohar
in FIR No.0204 dated 20.12.2018, Annexure P-1, registered for offences
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under Sections 498-A and 406 of the Indian Penal Code, 1860, at Police
Station City-I, Abohar, District Fazilka, whereby an application filed by the
petitioner for permission to go to Australia for a period of six months to
take up employment, has been rejected.
Counsel for the petitioner submits that the petitioner is enmeshed
in matrimonial litigation and FIR, Annexure P-1, has been registered by his
wife-complainant-respondent No.2. He submits that the petitioner was
granted anticipatory bail by this Court, which was made absolute vide order
dated 03.03.2020, Annexure P-3. Still further, he submits that the
investigation is complete and final report under Section 173 of the Code has
been presented qua the petitioner and other accused. Counsel asserts that
the petitioner is a permanent resident of Australia and vide order dated
18.03.2021, Annexure P-7, passed by this Court, he was granted
permission, subject to conditions mentioned therein, to travel to Australia
for a period of six months. The time period was extended by this Court
vide order dated 18.11.2021, Annexure P-10, and the petitioner returned to
India on 01.01.2022 before the expiry of the extended period. He urges that
despite being jobless, the petitioner has given an undertaking before this
Court and pursuant thereto, he is making payment of arrears of maintenance
in ten monthly installments of Rs.25,000/- each. Counsel submits that the
petitioner has an offer for an employment from an Australian Company,
which was valid till 01.08.2022 and now has been extended till 08.08.2022.
He submits that the petitioner be permitted to avail the offer and travel to
Australia. By making a reference to affidavit dated 27.07.2022, counsel
submits that the petitioner is ready to deposit property papers of his father's
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house, which has a valuation of more than Rs.47 lacs, as security and he
will abide by any other condition imposed by this Court.
Opposing the petition, learned State counsel as well as counsel
representing the complainant-respondent No.2 have urged that the
impugned order is revisable and the present petition is not maintainable. It
has been asserted that the job offer with the petitioner is not genuine and
once permission is granted to the petitioner, he is not likely to return.
Heard counsel for the parties.
The issue of maintainability of the petitioner, raised by the
counsel for the respondents deserves to be dealt with at the outset. Under
Section 397(2) read with Section 401 of the Code, there is a specific bar to
the exercise of revisional power against an interlocutory order. The
question as to whether a particular order is an 'interlocutory order' has to be
considered in the light of the judgments of the Supreme Court in M/s
Bhaskar Industries Ltd. Versus M/s Bhiwani Denim & Apparels Ltd. and
others (2001) 7 SCC 401 and K.K. Patel and another Versus State of
Gujarat and another (2000)6 SCC 195. Apex Court is of the view that an
'interlocutory order' denotes order of a purely interim or temporary nature,
which does not decide or touch the important rights or liabilities of the
parties. In other words, an interlocutory order is one which does not finally
culminate the criminal proceedings. When tested on this anvil, the
impugned order whereby application for permission to travel abroad has
been declined, would qualify as an interlocutory order and fall within the
ambit of Section 397(2) of the Code. As revision against such an order is
barred, an aggrieved person has no other remedy, but to invoke the inherent
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powers of this Court. Ergo, instant petition is held to be maintainable.
In order to determine the genuineness of the job offer of the
petitioner, this Court vide order dated 06.07.2022 directed him to give the
details and documents of offered employment in a sealed cover to the
Investigating Officer as the petitioner apprehended that in case the
complainant-respondent No.2 comes to know of the details, she will mar his
chances as she had done in the past. After enquiry, an affidavit has been
filed by the Investigating Officer, whereby offer letter of the employment
has been confirmed. On an earlier occasion, the petitioner was permitted to
travel to Australia and he returned to India within the time extended by this
Court. This Court, therefore, has no doubt about the bonafide of the
petitioner.
Hon'ble Apex Court in Satwant Singh Sawhney Versus D.
Ramarathnam, Assistant Passport Officer, New Delhi AIR 1967 SC 1836
and Smt. Maneka Gandhi Veruss Union of India AIR 1978 SC 597 has
held that expression 'personal liberty' in Article 21 of the Constitution of
India is a widest amplitude, which includes the right to go abroad. A person
cannot be deprived of this right except in accordance with procedure
prescribed by law. In a matter arising out of a matrimonial dispute, this
Court in CRM-M-40170-2020 tiled as "Jaspal Kaur Bhinder Versus State
of Punjab", decided on 23.04.2021, has held that an accused has a right to
travel abroad, though conditions can be imposed to ensure his presence
before the Trial Court and in case any condition imposed by the Court is
violated, appropriate coercive action can be taken.
Considering that the petitioner is an Engineer, who had returned
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from Austriala earlier, as also that he has an employment offer in hand,
which stands duly verified, this Court is of view that the order passed by the
Trial Court rejecting his application for permission to travel to Australia is
not sustainable and the impugned order passed by the learned Judicial
Magistrate First Class, Abohar, deserves to be set aside.
In view of the above discussion, impugned order dated
02.05.2022, Annexure P-15, is quashed. Petitioner is granted permission to
travel to Australia for a period of six months subject to the following
conditions:-
(i) Petitioner will deposit with the Area Magistrate/Trial
Court concerned, the original title deeds of residential
property bearing House No.274, Street No.1, Jodhu
Colony, Sri Muktsar Sahib, which is in the name of his
father, Sh. Satish Kumar son of Sh. Bhagwan Dass along
with an affidavit/undertaking from his father that he will
not have any objection in case the property is forfeited in
favour of the complainant-respondent No.2 in the
eventuality of petitioner failing to return to India;
(ii) Petitioner will furnish an undertaking before the Trial
Court as has been directed by this Court vide order dated
04.08.2022 in CRM-M-1096-2021, Gaurav Raheja and
others Versus State of Punjab and another, that he will
not object to the framing of the charge and the
examination/cross-examination of the witnesses in his
absence and that his counsel will keep on appearing
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before the Trial Court on each and every date;
(iii) Petitioner will not dispute the identity of the witnesses
examined in his absence;
(iv) Petitioner will put in appearance before the Trial Court
on his return to India;
(v) While in Australia, petitioner will carry his mobile
phone with an active mobile number, which he will
provide through his counsel to the Trial
Court/Investigating Officer within one week of reaching
Australia and that he will keep the phone activated for
international calls and will also be available on whatsapp
application with an active internet connection.
It is made clear that in case the petitioner does not return to India
within the time granted by this Court, the Trial Court shall be at liberty to
proceed in terms of the undertaking given before it.
Petition is disposed of.
(SUVIR SEHGAL)
JUDGE
05.08.2022
Kamal
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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