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2004 DIGILAW 641 (PNJ)

Chaitali v. State Of Punjab

2004-06-11

V.K.BALI

body2004
Judgment V.K.Bali, J. 1. This order be read in continuation of interim order dated June 9, 2004. 2. No reply has been filed on behalf of the respondent-State. 3. The petitioner herein is facing trial under Sections 406, 498-A, 342, 323 read with Section 34 of the Indian Penal Code, Police Station Sarabha Nagar, Ludhiana. The First Information Report came into being on the statement made by Ritu Vij to Senior Superintendent of Police, Ludhiana. It was stated by her that she was married with Amit Vij on 15.1.2003. The petitioner herein is stated to be the real sister of husband of Ritu Vij. At the time of marriage, it is the case of the complainant that dowry articles, including gold ornaments, were entrusted to the accused and after the marriage they started maltreating her and refused to return dowry articles and, thus, misappropriated the same. It has also been alleged in the First Information Report that husband of the complainant along with his mother and the petitioner pressurised the complainant to get the FDRs encashed for the purchase of car to be given in the marriage of the present petitioner. Learned Additional Sessions Judge, Ludhiana, vide orders dated 6.8.2003, considering the facts and that mother and father of the petitioner have already been arrested and dowry articles have since already been recovered and further that the dowry articles are generally entrusted to the husband or his parents and in such like matters, the unmarried sister of the husband has nothing to do, allowed interim bail to the petitioner. While, however, allowing interim bail, he imposed usual conditions, like that the petitioner would not leave India without the prior permission of the Court concerned. When the marriage of the petitioner got settled with Mr. Brian Armstrong, who is a national of United States of America, she applied for permission to go abroad and it is this prayer, which has since been declined by learned Judicial Magistrate vide order dated 28.5.2004, Annexure P3. Two grounds, that prevailed with the learned Magistrate in declining the permission, were that since the bail was granted to the petitioner by learned Additional Sessions Judge, it is the said Court alone which was competent to grant permission and further that if the petitioner goes abroad she may not come back to face trial. Both these grounds, in considered view of this Court, are absolutely incorrect. Both these grounds, in considered view of this Court, are absolutely incorrect. Grant of anticipatory bail is competent only before the Sessions Judge or High Court. Even though, therefore, the offence may be triable by Magistrate, an application for grant of bail is made before Sessions Judge or High Court. It requires to be mentioned that in a case, if Sessions Judge may refuse to grant bail and even the High Court refuses to grant such bails, the relief may be given by Hon ble Supreme Court. The Court granting interim bail can, thus, either be the Sessions Judge, High Court or Supreme Court. The conditions imposed in the order of interim bail to go abroad with the permission of the Court, thus, can vary from the Court of Sessions Judge upto Supreme Court. If what learned Magistrate has said may be taken as correct, then in that case, an individual may have to ask for permission, in a given case, from the High Court or the Hon ble Supreme Court, as the case may be. In considered view of this Court whereas it may be doubtful as to whether the Court, granting anticipatory bail may have jurisdiction to give permission to go abroad, there cannot be any doubt that it shall always be permissible for the Court, trying the matter, to accord such permission. In no case, it can, however, be said that the Trial Court is not competent to grant such permission. Insofar as the other ground refusing to grant permission, as mentioned by learned Magistrate is concerned, the same, in considered view of this Court, borders on perversity. Learned Magistrate, it appears, has missed the most important cardinal principle of criminal jurisprudence that every person is supposed to be innocent unless proved guilty. In the present case, learned Magistrate has drawn a contrary presumption. Even otherwise, there was nothing on records, like shady antecedents of the petitioner or a bad track record, which might have even remotely shown the intention on the part of the petitioner to go abroad so as never to come back. Every individual is presumed to be behaving normally and abiding by the undertaking that he or she may give. This presumption can, however, be rebutted only on the material that may be placed before the Court. Every individual is presumed to be behaving normally and abiding by the undertaking that he or she may give. This presumption can, however, be rebutted only on the material that may be placed before the Court. Such was not the case in hand inasmuch as nothing at all was stated by the prosecution either before the learned Trial Court or before this Court, that petitioner would not abide by the undertaking given by her to come back as and when required. No doubt, the Court trying the matter against an accused has to ensure his/her presence, but the same can be done by means which are known to all concerned and particularly to the Courts. The object of securing the presence of the petitioner could be ensured by asking her to furnish security that may be good enough in the circumstances, or her to be present as and when required. Instead of adopting the said procedure, which, in considered view of this Court, was required to be adopted, learned Magistrate observed that he would not be able to secure presence of the petitioner in India once she goes abroad. This thought of the learned Magistrate is not based upon any ground whatsoever as there were no bases before him to reach such a conclusion. The inference drawn by the learned Magistrate militates against normal human conduct. I might further mention here that every citizen has a fundamental and civil right to go abroad, which cannot be curtailed during the pendency of a criminal case, unless there be a specific order passed on that behalf, based upon material. This fundamental or civil right of petitioner could not be thwarted in the manner it has been done in the present case. 4. In totality of the facts and circumstances of this case, I allow this petition, quash order, Annexure P3 and permit the petitioner to go abroad. However, before she goes abroad, she will submit an undertaking before learned Magistrate that as and when called for, and I may mention here that she may be called only if she be actually required to be present in the country, then she shall come to India. Learned Magistrate may ask for surety/sureties which may be reasonable in the facts and circumstances of this case, taking into consideration the status of the petitioner and her parents. Learned Magistrate may ask for surety/sureties which may be reasonable in the facts and circumstances of this case, taking into consideration the status of the petitioner and her parents. Immediately on furnishing such an undertaking and surety/sureties, as the learned Magistrate may think proper in the facts and circumstances of this case, the petitioner shall be permitted to go abroad. Disposed of accordingly. Let a copy of this order be given Dasti to learned Counsel for the petitioner under the signatures of the Court Secretary.