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2009 DIGILAW 420 (JK)

State Of J. &K. v. Aijaz Ahmed Shah

2009-08-27

SUNIL HALI

body2009
1. The respondent has acquired American citizenship and entered into India on a passport issued by the United States of America (USA). He had travelled to America on Indian Passport. After acquiring citizenship of America, the respondent ceased to be a citizen of India. On entering India, the respondent complied with the procedure as laid down under the Registration of Foreigners Rules, 1992 and furnished the details alongwith particulars as set down in Form B under rule-4. He also submitted his registration report in registration office both at Delhi and Srinagar. After staying in India, the respondent wanted to return back to America for which, he was required to obtain permission under Rule-5 of the Foreigners Order, 1948. The said permission was refused to the respondent on the ground that his presence is required in India to answer the criminal charge leveled against him. It prompted the respondent to file civil suit before the trial court in the nature of declaration and injunction. An application for grant of temporary injunction was also filed. The trial court vide its order dated 3-1-2009 allowed the application of respondent and granted interim direction by ordering the respondent to issue exit permission on the passport. It is this order, which is the subject matter of challenge before this court in the present revision petition. 2. The cause for refusing the exit permission to the respondent is that he is facing a criminal charge in this country. It is interesting to note that on his return from America on Americana passport, the respondent was appointed as Man- aging Director, State Forest Corporation. During his tenure as Managing Director, State Forest Corporation, certain allegations of omission and commission were leveled against him, which resulted in filing of FIR No. 19/2008 under section 120 RPC, 5(2) and FIR No. 16/2008 under section 120 RPC 5(2) of Prevention of Corruption Act. FIR No. 68/2007 under section 12 of the Passport Act read with section 420 RPC was also registered against the respondent by the Crime Branch, Kashmir. The allegations in this FIR against the respondent was that he had applied for issuance of Indian Passport and it was detected during verification that the respondent was possessing USA Passport. This information is stated to have been withheld by the respondent. During the course of investigation, the passport was seized. The allegations in this FIR against the respondent was that he had applied for issuance of Indian Passport and it was detected during verification that the respondent was possessing USA Passport. This information is stated to have been withheld by the respondent. During the course of investigation, the passport was seized. In view of the registration of the cases, the respondent was arrested and was granted bail by the Chief Judicial Magistrate, Srinagar. His application for release of the passport was declined by the Chief Judicial Magistrate and consequently the same was allowed by the Principal District and Sessions Judge, Srinagar and it was directed that the passport be released to the respondent. 3. It is stated that petition under section 561-A bearing No. 1/2008 is pending disposal before this court. 4. Respondent filed one more application before the Chief Judicial Magistrate, Srinagar seeking permission to meet his children in America, which was granted by the court on 4-10-08. Petition under section 561-A has been filed against the said order before this court in which the notice has been issued. 5. Another petition under section 561-A was also filed before this court against the order of Principal District and Sessions Judge, Srinagar, who has released the passport of the respondent. Petition under section 561-A stands already dismissed vide order dated 19-9-2008. After having succeeded in obtaining the passport and also permission from the Chief Judicial Magistrate to meet his children in America, the respondent was required to obtain permission from the petitioner-2. 6. The revision petition against the interim order issued by the trial court stands filed in this court. The grounds of challenge in the revision petition are : a) That the trial court without waiting for the objections to be filed by the present petitioners, passed the interim direction. b) That by directing that exit permission be granted in favour of respondent, the suit itself has been decreed. c) That no permission can be granted to the respondent in view of the fact that he has to face criminal charge in this country. 7. Mr. Z.A. Shah, learned counsel for the respondent states that revision petition is not maintainable, as the order is appealable under Order 43. Section 115 clearly bars filing of revision petition. 8. The respondent has already filed his written statement/objections on 31-1-2009. 7. Mr. Z.A. Shah, learned counsel for the respondent states that revision petition is not maintainable, as the order is appealable under Order 43. Section 115 clearly bars filing of revision petition. 8. The respondent has already filed his written statement/objections on 31-1-2009. There is no ground for refusing him permission, as the respondent is not facing any criminal charge in India. 9. I have heard learned counsel for the parties and perused the record. 10. It is important to note that during the pendency of revision petition, this court vide its order dated 2-5-2009 directed the Director General of Police, J&K to disclose this court, as to whether there is any extradition treaty with USA and also to disclose the number of cases registered against the respondent and the stage of the investigation. 11. In pursuant to the aforesaid direction of this court, the Director General of Police has filed his affidavit and stated : a) That there is extradition treaty between Government of India and USA. b) That three cases are registered against the respondent, out of which, investigation in one case under FIR no. 68/07 is complete and has been sent for grant of prosecution sanction to the competent authority. 12. The controversy in this revision petition relates to non-issuance of exit permission to the respondent by the petitioners. The contention of the petitioners is that three FIRs have been registered against the respondent, the details of which are given hereinabove. No permission can be given to respondent to leave India, as he is required to answer the criminal charge in India. It is apprehended that once the petitioner leaves this country, he is not likely to return back. 13. On the other hand, Mr. Z.A. Shah states that registration of FIRs in itself would not be sufficient to refuse the permission to leave the country, unless the report under section 173 Cr PC is produced before the court and he is put to trial. Mere registration of FIRs would not be any bar as contended by Rule -5 Sub Clause (b) of the Foreigners Order 1948. 14. According to him, a plain reading of the provision indicates that permission to depart from India can be refused on the ground that the person is required to answer the criminal charge. Mere registration of FIRs would not be any bar as contended by Rule -5 Sub Clause (b) of the Foreigners Order 1948. 14. According to him, a plain reading of the provision indicates that permission to depart from India can be refused on the ground that the person is required to answer the criminal charge. Reference to criminal charge would relates to a matter where the person is facing trial in the court. Mere registration of FIRs in itself would not be a ground to refuse permission under rule-5. Registration of FIR and conclusion of the investigation is beyond the control of the person facing the charges and if it has to be interpreted that the conclusion of the investigation would also encompass facing the criminal charge is too absurd a proposition to be accepted. It be seen that in the present case FIR has been registered in the year 2007 but till date the same has not been concluded. Undoubtedly as on date petitioner is not facing any criminal charge before any court of competent jurisdiction. He further states that there is no dispute that there can be reasonable apprehension in the mind of the petitioners that the respondent is not likely to return, but it is also true that a person who is foreigner, cannot be allowed to stay back in this country for undefined period. In an eventuality like the one, petitioners will not be powerless to deal with the respondent. There is an extradition treaty between India and USA and the presence of the respondent can be procured by invoking the provision of the treaty. It be noted that respondent™s passport has already been released in his favour. Permission to meet the children in USA has also been given to the respondent by the Chief Judicial Magistrate, Srinagar, subject to the conditions imposed therein. There is an order of the trial court that the respondent be allowed to leave India for four months after furnishing surety bond to the tune of Rs. 4.00 lacs. All these safeguards have been made by the various courts. 15. The contention of the learned counsel for the parties is that the controversy is within a narrow compass. According to them, the controversy is, as to whether the respondent is required to be given exit permission to leave the country in view of registration of FIR against him. All these safeguards have been made by the various courts. 15. The contention of the learned counsel for the parties is that the controversy is within a narrow compass. According to them, the controversy is, as to whether the respondent is required to be given exit permission to leave the country in view of registration of FIR against him. However, looking to the fact that the trial court has passed the order without providing an opportunity to the petitioners to file their objections, I refrain from giving any direction in this petition. The trial court was required to hear the parties, more particularly when time was given to the petitioners to file the objections and without waiting for the same, he has passed the interim order. Undoubtedly, the order impugned has been passed without hearing the parties. 16. Looking to the facts of the case that the respondent is awaiting permission from petitioners for going to America, it will be desirable that the matter is disposed of by the trial court expeditiously. It is important to note that permission to travel outside the country has already been granted to the respondent by the Chief Judicial Magistrate and Principal District Judge, Srinagar. It is, in light of this, a direction is required to be given to the trial court to dispose of the matter by or before 5th October, 2009. In case the petitioners intend to file objections they may do so. 17. For the reasons stated hereinabove, this revision petition is allowed and order of the trial court dated 03-1-2009 is set aside. Parties are directed to appear before the trial court on 4th September, 2009. Any observation made herein shall not influence the trial court in arriving at its own conclusion. 18. It has been noted that orders of Revision Petition No. 16/2009 have been inadvertently recorded in Petition No. 95/2008 u/s 561-A Cr.PC. All the orders recorded in Petition No. 95/2008 shall be deemed to have been recorded in Civil Revision No. 16/2009. Necessary correction in this regard be effected. Petition No. 95/2008 u/s 561-A Cr.PC be detached from Civil Revision Petition No. 16/2009 and be listed separately at its own turn.