Aditya Murti vs Central Bureau Of Investigation/Anti … on 1 May, 2025

Allahabad High Court

Aditya Murti vs Central Bureau Of Investigation/Anti … on 1 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:25135
 
A.F.R.
 
Court No. - 15
 
Case :- APPLICATION U/S 482 No. - 3726 of 2025
 
Applicant :- Aditya Murti
 
Opposite Party :- Central Bureau Of Investigation/Anti Corruption Bureau Lko.
 
Counsel for Applicant :- Purnendu Chakravarty,Ambrish Singh Yadav,Amit Jaiswal Ojus Law,Pranjal Jain
 
Counsel for Opposite Party :- Anurag Kumar Singh
 

 
Hon'ble Subhash Vidyarthi J.
 

 

1. Heard Sri Purnendu Chakravarty, the learned counsel for the applicant and Sri Anurag Kumar Singh, learned counsel for the C.B.I.

2. By means of the instant application filed under Section 528 of Bhartiya Nagrik Suraksha Sanhita (which will hereinafter be referred to as ‘BNSS’), the applicant has challenged the validity of an order dated 24.04.2025 passed by the Special Judge, CBI-5, Lucknow in Case No. 07/2012, arising out of F.I.R. No. RC0062010A0015, under Section 120-B I.P.C. read with Sections 420, 468, 471 and Section 13(1) (d)/13(2) of the Prevention of Corruption Act, P.S. CBI/ACB, District Lucknow and has sought permission to travel abroad to USA and France from 03.05.2025 to 22.05.2025 to attend the wedding function of son of the applicant’s cousin and to enjoy a family pleasure trip.

3. The applicant had filed an application dated 03.02.2025 before the trial Court seeking permission to go abroad for the aforesaid period stating that he is a Consultant in Sri Ram Murti Smarak Institute of Medical Sciences run by SRMS Trust, which is a public charitable Trust established in the year 1990. Son of the applicant’s cousin (grand-son of sister of the applicant’s father) is an American citizen residing at San Jose, USA, and he has invited the applicant to attend his wedding function at San Diego, California, USA.

4. As per the invitation sent to the applicant through e-mail, the wedding celebrations are scheduled between 03.05.2025 to 13.05.2025 at San Diego, California, USA. After the wedding event, the applicant and his family members have planned a trip to Paris and Nice (France) before returning to India. The travel tickets of the applicant and his wife have already been purchased.

5. The F.I.R. giving rise to the matter was lodged in the year 2010. After investigation, a charge-sheet was submitted for offences under Section 120-B read with Section 420 I.P.C. and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act and the substantive offence under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, on 01.07.2011. The trial Court framed charges against the applicant for the offences under Section 120-B read with Section 420 I.P.C. and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act and no charge has been framed against the applicant for the substantive offence under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act. Statements of 36 prosecution witnesses have already been recorded and after recording of the statements under Section 313 Cr.P.C., the matter is fixed for defence evidence. The trial Court has recorded the submission made on behalf of the applicant that the applicant has travelled abroad on numerous earlier occasions with permission of the trial Court and he has not misused the liberty on any occasion and he has submitted that in his absence he will be represented by his counsel and the trial will not be delayed.

6. The trial Court has also recorded that the present case is one of the oldest matters and it is included amongst the cases regarding which an action plan has been made by the High Court for early disposal. Progress of the case is being monitored by the High Court as well as by the Hon’ble Supreme Court. In these circumstances, in case the applicant is granted permission to travel abroad it might cause unwarranted delay in the disposal of the matter. The trial court rejected the application for permission to travel for the aforesaid reasons.

7. Sri. Purnendu Chakravarty, the learned Counsel for the applicant has submitted that applicant’s father is a trustee of S.R.M. Medical College and the applicant is merely a Consultant in the Medical College run by that Trust. The applicant’s father is not traveling abroad. There is no possibility of the applicant not coming back to face the trial. He further submitted that the trial is continuing for the past about one and half decades and the absence of the applicant for merely 22 days will not make a significant difference.

8. The learned Counsel for the applicant has submitted that the applicant has a Fundamental Right to travel abroad and the denial of this Fundamental Right is unsustainable in law. In support of this submission he has relied upon the judgment of the Hon’ble Supreme Court in the case of Maneka Gandhi Vs. Union of India and another: (1978) 1 SCC 248.

9. Sri. Chakravarty has submitted that the applicant had sought permission to travel abroad on numerous earlier occasions for similar purposes, like family pleasure trips, and the permission was always granted. The applicant has not misused the liberty granted by the trial court on any occasion and he has always appeared to face the trial after coming back to India after his travel abroad. He has relied upon the judgment in the case of Parvez Noordin Lokhandwalla Vs State of Maharashtra and another: (2020) 10 SCC 77, in which the Hon’ble Supreme Court has set aside the High Court’s order refusing permission to the appellant for travelling abroad when he had already travelled abroad on numerous earlier occasions and had not misused the liberty on any occasion.

10. Maneka Gandhi v. Union of India: (1978) 1 SCC 248, was decided by a Constitution Bench of seven Hon’ble Judges of the Hon’ble Supreme Court. Briefly stated, facts of the case were that the petitioner held a passport issued to her on 01.06.1976. On 04.07.1977 she received a letter from the Regional Passport Officer, Delhi intimating her that it had been decided by the Government of India to impound her passport under Section 10(3)(c) of the Passports Act, 1967 in public interest and requiring her to surrender the passport within seven days from the date of receipt of the letter. The petitioner immediately addressed a letter to the Regional Passport Officer requesting him to furnish a copy of the statement of reasons for making the order as provided in Section 10(5) to which a reply was sent by the Government of India, Ministry of External Affairs on 06.07.1977 stating inter alia that the Government had decided “in the interest of the general public” not to furnish her a copy of the statement of reasons for the making of the order. The petitioner thereupon filed a Writ Petition before the Hon’ble Supreme Court challenging the action of the Government in impounding her passport and declining to give reasons for doing so. The principal challenge set out in the petition against the legality of the action of the Government was based mainly on the ground that Section 10(3)(c), insofar as it empowers the Passport Authority to impound a passport “in the interests of the general public” is violative of the equality clause contained in Article 14 of the Constitution, since the condition denoted by these words is vague and undefined and the power conferred by this provision is, therefore, excessive and suffers from the vice of “over-breadth”. The petition also contained a challenge that an order under Section 10(3)(c) impounding a passport could not be made by the Passport Authority without giving an opportunity to the holder of the passport to be heard in defence. On 20.07.1977 an interim order was made directing that the passport of the petitioner should continue to remain deposited with the Registrar of the Court pending the hearing and final disposal of the petition.

Hon’ble P.N. Bhagwati J, speaking for himself and N. L. Untwalia and S. Murtaza Fazal Ali J held that: –

“19….It would thus be seen that even if a right is not specifically named in Article 19(1), it may still be a fundamental right covered by some clause of that article, if it is an integral part of a named fundamental right or partakes of the same basic nature and character as that fundamental right. It is not enough that a right claimed by the petitioner flows or emanates from a named fundamental right or that its existence is necessary in order to make the exercise of the named fundamental right meaningful and effective. Every activity which facilitates the exercise of a named fundamental right is not necessarily comprehended in that fundamental right nor can it be regarded as such merely because it may not be possible otherwise to effectively exercise that fundamental right. The contrary construction would lead to incongruous results and the entire scheme of Article 19(1) which confers different rights and sanctions different restrictions according to different standards depending upon the nature of the right will be upset. What is necessary to be seen is, and that is the test which must be applied, whether the right claimed by the petitioner is an integral part of a named fundamental right or partakes of the same basic nature and character as the named fundamental right so that the exercise of such right is in reality and substance nothing but an instance of the exercise of the named fundamental right. If this be the correct test, as we apprehend it is, the right to go abroad cannot in all circumstances be regarded as included in freedom of speech and expression. Mr Justice Douglas said in Kent v. Dulles that “Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.” And what the learned Judge said in regard to freedom of movement in his country holds good in our country as well. Freedom of movement has been a part of our ancient tradition which always upheld the dignity of man and saw in him the embodiment of the Divine. The Vedic seers knew no limitations either in the locomotion of the human body or in the flight of the soul to higher planes of consciousness. Even in the post-Upanishadic period, followed by the Buddistic era and the early centuries after Christ, the people of this country went to foreign lands in pursuit of trade and business or in search of knowledge or with a view to shedding on others the light of knowledge imparted to them by their ancient sages and seers. India expanded outside her borders : her ships crossed the ocean and the fine superfluity of her wealth brimmed over to the east as well as to the west. Her cultural messengers and envoys spread her arts and epics in South-East Asia and her religions conquered China and Japan and other far Eastern countries and spread westward as far as Palestine and Alexandria. Even at the end of the last and the beginning of the present century, our people sailed across the seas to settle down in the African countries. Freedom of movement at home and abroad is a part of our heritage and, as already pointed out, it is a highly cherished right essential to the growth and development of the human personality and its importance cannot be over-emphasised. But it cannot be said to be part of the right of free speech and expression. It is not of the same basic nature and character as freedom of speech and expression. When a person goes abroad, he may do so for a variety of reasons and it may not necessarily and always be for exercise of freedom of speech and expression. Every travel abroad is not an exercise of right of free speech and expression and it would not be correct to say that whenever there is a restriction on the right to go abroad, ex necessitae it involves violation of freedom of speech and expression. It is no doubt true that going abroad may be necessary in a given case for exercise 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 exercise of 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 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 rights with different permissible restrictions would be frustrated.

* * *

34. The right to go abroad cannot, therefore, be regarded as included in freedom of speech and expression guaranteed under Article 19(1)(a) on the theory of peripheral or concomitant right. This theory has been firmly rejected in the All-India Bank Employees Association case and we cannot countenance any attempt to revive it, as that would completely upset the scheme of Article 19(1) and to quote the words of Rajagopal Ayyanger, J., speaking on behalf of the Court in All-India Bank Employees Association case “by a series of ever-expanding concentric circles in the shape of rights concomitant to concomitant rights and so on, lead to an almost grotesque result”. So also, for the same reasons, the right to go abroad cannot be treated as part of the right to carry on trade, business, profession or calling guaranteed under Article 19(1)(g). The right to go abroad is clearly not a guaranteed right under any clause of Article 19(1) and Section 10(3)(c) which authorises imposition of restrictions on the right to go abroad by impounding of passport cannot be held to be void as offending Article 19(1)(a) or (g), as its direct and inevitable impact is on the right to go abroad and not on the right of free speech and expression or the right to carry on trade, business, profession or calling.”

(Emphasis added)

Hon’ble Y. V. Chandrachud J and V. R. Krishna Iyer J concurred with the aforesaid view expressed by Bhagwati J. Thus, Maneka Gandhi (Supra) does not hold that the right to travel abroad is a Fundamental Right.

11. Interestingly, in Maneka Gandhi (Supra), a statement was made on behalf of the Government that the Government was agreeable to considering any representation that may be made by the petitioner in respect of the impounding of her passport and giving her an opportunity in the matter. The opportunity will be given within two weeks of the receipt of the representation. In the event of the decision of impounding the passport having confirmed, the duration of the impounding will not exceed a period of six months from the date of the decision that may be taken on the petitioner’s representation. Having regard to the aforesaid statement, the Supreme Court held that it was unnecessary to interfere with the impugned order and, accordingly, the Writ Petition was disposed off without passing any formal order, but it was ordered that the passport will remain in the custody of the Registrar of the Supreme Court until further orders.

12. Therefore, Maneka Gandhi (Supra) does not lay down that a person charged with commission of offences of criminal conspiracy for cheating and misconduct by a public servant, and who has been enlarged on bail, has a Fundamental Right to travel abroad for attending the wedding of a relative in one country and to enjoy a pleasure trip in another country.

13. Parvez Noordin Lokhandwalla (Supra) case had its genesis in a private complaint which was filed alleging that the appellant had fabricated a power of attorney by forging the signature of his brother. The Magistrate passed an order directing an investigation under Section 156(3) Cr.P.C. Thereafter a first information report was registered against the appellant for the offences punishable under Sections 420, 467, 468, 469, 470, 471 and 474 read with Section 34 I.P.C. The appellant was an Indian citizen and held an Indian passport. He had been residing in the USA since 1985 and he held a Green Card enabling him to reside in the USA. The appellant arrived in India on 10.01.2020. He was arrested on 21.02.2020 in pursuance of a lookout notice issued on the basis of the FIR. The High Court had granted bail to the appellant subject to certain conditions, including the condition that he would surrender his passport and/or Green Card with the investigating agency and he would not leave jurisdiction of Thane Police Commissionerate without prior permission of the trial court. The applicant sought permission to travel to the USA for revalidation of his Green Card. The High Court rejected the permission. The Hon’ble Supreme Court allowed the appeal by holding that: –

“22. The private complaint which is the genesis of the present proceedings was instituted in January 2014. The gravamen of the allegation is that the appellant has forged and fabricated the power of attorney of 19-12-2011 of his brother Shalin. Mr Jha submits that, as a matter of fact, the power of attorney has not been used at any point; his brother was present in India at the time when conveyance was entered into; and that his brother has never raised any objection. However, we are not inclined to go into these factual aspects at the present stage. It would suffice to note that the co-accused was granted bail by the Sessions Judge, Thane on 16-4-2018. We are called upon to decide only whether the appellant should be permitted to travel to the US for eight weeks. In evaluating this issue, we must have regard to the nature of the allegations, the conduct of the appellant and above all, the need to ensure that he does not pose a risk of evading the prosecution. The details which have been furnished to the Court by the appellant, indicate that he has regularly travelled between the US and India on as many as sixteen occasions between 2015 and 2020. He has maintained a close contact with India. The view of the High Court that he has no contact with India is contrary to the material on record. The lodging of an FIR should not in the facts of the present case be a bar on the travel of the appellant to the US for eight weeks to attend to the business of revalidating his Green Card.”

(Emphasis added)

14. Thus the Hon’ble Supreme Court had granted permission to Parvez Noordin Lokhandwalla after taking into consideration that the F.I.R. against him had been lodged on the basis of a private complaint that he had fabricated a power of attorney by forging the signature of his brother, which power of attorney had not been used at any occasion. The appellant was a green card holder and he had been residing in the USA since the year 1985. He had to travel to USA for revalidation of his Green Card.

15. It is settled law that a precedent has to be understood and applied keeping in view the factual background in which the case was decided and the question involved in the case that was decided. The difference in factual backgrounds of cases may make a world of difference in application of the principles of law. In Parasa Raja Manikyala Rao v. State of A.P., (2003) 12 SCC 306: 2003 SCC OnLine SC 1142, the Hon’ble Supreme Court held that: –

“9. Each case, more particularly a criminal case, depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another.”

16. The present applicant is an accused in an FIR lodged by CBI and the case is not based on any private complaint. The applicant is seeking permission to travel abroad for attending the wedding ceremony of a relative in USA and to enjoy a family pleasure trip in France. This purpose is not an essential purpose like revalidation of a Green Card. Therefore, the facts of the present case are in no manner similar to the facts of Parvez Noordin Lokhandwalla (Supra) and the applicant cannot get any benefit of it.

17. The proceedings against the applicant have been initiated by an FIR lodged by the Central Bureau of Investigation and the trial Court has charged him for commission of offences under Section 120-B read with Section 420 I.P.C. and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act. The trial pending since 2011 has now reached the stage of defence evidence. At this stage, he wants to travel abroad merely to attend the wedding ceremony of a grand-son of his father’s sister, who is not his immediate family member. After attending the wedding at San Diego, California, USA, the applicant wants to have a family pleasure trip to France.

18. An accused person who has been enlarged on bail can be granted permission to travel abroad for some pressing necessity like medical treatment, attending essential official duties and the like. An accused person who has been enlarged on bail cannot seek permission as of right to travel to another country merely for attending the marriage of a relative and having a pleasure trip to another country. Wedding of a relative in a foreign country and pleasure trip to another country are not at all essential purposes for an under-trial accused person’s visit abroad.

19. Merely, because the trial Court had earlier granted permission to the applicant to travel abroad for non-essential objects on numerous, he does not get a right to travel abroad for non-essential objects this time also, when the trial has reached the stage of defence evidence.

20. The learned counsel for the applicant submitted that this reason has not been assigned by the trial Court and the trial Court has merely rejected the application on the ground that since the trial has reached at the stage of defence evidence, the applicant cannot be granted permission for travel abroad.

21. While exercising the inherent powers of this Court recognized by Section 528 BNSS, this Court’s power is not confined to scrutiny of the reasons assigned by the trial court. Besides seeking quashing of the order passed by the trial Court, the applicant has requested this Court to pass an order granting him permission to travel abroad and in these circumstances, this Court can certainly to look into the justification of the prayer made by the applicant so as to assess whether the permission sought can be granted to the applicant.

22. In Jitendra v. State of U.P., 2022 SCC OnLine All 674, this Court has held that a person who has been arrested and released on bail subject to the conditions imposed by the Court, remains subject to the directions issued by the Court and he shall be deemed to be in constructive custody of the Court. Therefore, the applicant does not enjoy the full liberties of a free man and reasonable restrictions can be imposed upon his freedom, including the restriction of his going out of the Country.

23. In view of the foregoing discussion, I am of the considered view that the trial Court has not committed any illegality in rejecting the application seeking permission for the applicant for his travel to the USA for attending the marriage of a relative and to France to enjoy a family pleasure trip, when the trial has reached the stage of defence evidence. The applicant does not have the right to travel to USA for attending the marriage of his relative and to France to enjoy a family pleasure trip when the trial of the case filed by CBI, in which the applicant is an accused, has reached the stage of defence evidence.

24. The application seeking permission for the applicant’s travel abroad as well as the application under Section 528 BNSS lack merits and are, accordingly, rejected.

Order Date: 01.05.2025

Arvind

(Subhash Vidyarthi J.)