Madras HC remains wary of circulars against Seychelles citizens and allows his travel

Justice N Seshasayee observed that the extension of Article 21 of the Constitution to non-citizens would also include the dignified existence of a foreigner facing criminal charges in India.

“If the wording of Article 21 applies to non-citizens, the right to privacy of a foreigner who is prosecuted in India must also be recognized as part of his right to a dignified existence. Everything personal is part of privacy and, unless permitted by law, it cannot be interfered with, even if the accused person is a foreigner“, the court stated.

The court also held that the purpose of the criminal justice system was simply to ensure the defendant’s presence at trial and that this should not be construed as a license to interfere in the defendant’s private life. The court found that the criminal justice system is best administered when the inconvenience to the defendant’s personal life is least.

“The aim of ensuring the presence of a defendant for his participation in the proceedings and to bear any criminal consequences in the event that the court confirms the charge should not be construed as permission to allow any interference in the private life of a defendant. Criminal law is best applied when the inconvenience it causes to the private lives of the accused is least, so that this country’s confidence in the constitutional principles arising from the judicial interpretation of Article 21 is not reduced to a farce. There can never be an insult to the Constitution and its statements“, said the court.

The court added that it is necessary to transform the right to life from a constitutional theory into a concrete action. The court noted that the question should not be why the petitioner should be allowed to leave the country, but rather why the court should deny him permission to travel abroad. The court also held that the right to travel abroad is an integral part of the fundamental right and it would be a constitutional violation to absolutely prohibit a defendant from traveling abroad to attend to his private affairs simply because he is a is a foreign national facing criminal charges in India.

The court was hearing the petition of Karthik Parthiban, a citizen of Seychelles who was stuck in India on a LOC issued by the CBI. Parthiban had moved the court to quash the LOC. The case against Parthiban was that his company was involved in a large-scale financial fraud and that, as a director of the company, he had played a key role in diverting the funds.

Parthiban had submitted that his father had recently been attacked, kidnapped and robbed, which had deteriorated his mental and physical health. Therefore, he wanted to travel to Malaysia to visit his family who lived there. Citing the Manke Gandhi case, he pointed out that the dividing line between Articles 19 and 21 had been abolished and that although he was a foreign citizen, he was entitled to a decent life and permission to travel abroad.

However, the CBI rejected the plea and contended that Article 21 cannot be extended to cases like that of the petitioner where LOC was issued due to a huge economic fraud. The CBI expressed apprehension that if Parthiban was allowed to leave the country, he would not return to complete the formalities of the investigation, resulting in a loss of Rs 600 crore to the public.

The court emphasized that the criminal justice system should only be concerned with ensuring that the defendant submits to the jurisdiction and attends the trial, and should not be concerned with how the defendant conducts his life and conducts business. The court noted that the criminal justice system considers the right to a dignified life of even a defendant to be paramount.

The court was therefore inclined to suspend the LOC and conditionally permit Parthiban’s travel to ensure his safe return to India to attend the criminal trial. The court, therefore, directed him to submit a schedule of his travel itinerary to both the trial court and the CBI and granted him permission to travel strictly as per the schedule.

The court also ordered Parthiban to only stay at the address he provided during his vacation and not to leave Malaysia. The court directed Parthiban to hand over his passport to the Indian High Commission in Malaysia and retrieve it only before returning to India. The court also asked that confirmation of handing over the passport to the High Commission be sent to the CBI.

Plaintiff’s lawyer: Mr. Vijayan Subramanian

Attorney for the defendant: Mr. K. Srinivasan, Special Public Prosecutor (CBI), Mr. VTBalaji, Senior Panel Counsel

Citation: 2024 LiveLaw (Mad) 370

Case Title: Karthik Parthiban v. Superintendent of Police and Others

Case No.: WPNo.24906 of 2024