Right of an accused to carry on his occupation or profession cannot be curtailed while ensuring the culmination of the legal process

In the matter of Arun Baby vs. State of Kerala and ors. [ CRL.MC NO. 2695 of 2021] decided by Kerala High Court on 11th June 2021.

Facts

The Petitioner (Arun Baby) is an accused in the case registered as Crime 1274/2020 of Elavumthitta Police Station. The offences against him are punishable under Section 498A and 506(i) of the Indian Penal Code. He was released on bail by the Magistrate’s Court.
The petitioner is employed as General Electrical Engineer in the U.A.E. and his visa would expire on 15.07.2021. Hence, it is necessary for him to return to UAE.
Therefore, in the present petition, the Petitioner prayed that he must be granted permission to go to UAE and rejoin his duty.

Issue

Whether an accused who is out on bail be allowed to go abroad for his employment?

Held

The Kerala High Court observed that granting permission to an accused to go abroad for employment involves the resolution of conflicting interests. On one hand, the court has to reach its normal culmination. And on the other hand the right of an accused to carry on his occupation or profession cannot be curtailed.
The court while referring to Bhaskar Industries Limited v. Bhiwani Denim and Apparels Limited [AIR 2001 SC 3625] observed that the normal rule is that the evidence in a case shall be taken in the presence of the accused. However, in the absence of the accused the evidence can be taken but his counsel must be present in the court, provided the accused has been granted exemption from attending the court. The court must ensure that the said benefit is to be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case and he has no objection in taking evidence in his absence.
It is further observed that if the court is satisfied that, the personal attendance of an accused is not necessary, in the interest of justice, then the court has the power to dispense with his attendance. If a court feels that insisting on the personal attendance of an accused in a case would be too harsh, the court can grant appropriate relief.
Consequently, the court allowed the Petition and exempted the Petitioner from personal appearance on the following conditions:
• He shall file an undertaking in the form of affidavit that he would appear before the Magistrate Court as and when required by that court.
• He shall engage a counsel to appear before the trial court on all hearings.
• The affidavit shall also contain an undertaking that the counsel engaged by the Petitioner would appear before the trial court on his behalf on each and every date of hearing
• The Petitioner shall not object to the recording of the evidence in his absence.
• And lastly, that no adjournment shall be asked for on his behalf.