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2011 DIGILAW 1305 (RAJ)

Shekhar Sharma v. State of Rajasthan

2011-07-06

MEENA V.GOMBER

body2011
JUDGMENT 1. - By this common order, two criminal miscellaneous petitions (mentioned above), although filed against two separate orders, of even date i.e. 4.10.2010 whereby the petitioners application seeking Supurdgi of his passport and the other seeking permission to leave country for Australia, have been dismissed. 2. The grievance of the petitioner is that he has been living and working in Australia and is also studying retail management and that his passport had been seized after he surrendered himself at immigration at Indira Gandhi International Airport, New Delhi on 16.8.2010 and was arrested by P.S. Mahila Thana South, Jaipur in Cr. Case No. 185/2010 lodged by his wife for offence u/s 498-A, 406, 377, 323 and 120-B, IPC and section 4 of Dowry Prohibition Act. 3. According to him, the learned trial court, by rejecting his application seeking Supurdgi of his passport, has ignored the settled principles of law as held by Apex Court from time to time in this regard. According to him, passport of a person can only be impounded under the Passport Act by a competent authority and that pendency of a criminal case, cannot be a ground for refusal to return the passport. 4. Reliance was placed on the case of Gian Singh v. State of Rajasthan, (1999) 5 SCC 694 , Suresh Nanda v. C.B.I. passed in Criminal Appeal No. 179/2008 arising out of SLP (CRL) 3408/2007 and Chaitali v. State of Punjab, II (2005) DMC 331 , and it was submitted that passport could only be impounded by the Competent Authority under the provisions of Passport Act as provided in section 10(3) of the said act. 5. It was urged that although police has power to seize i.e. to take into possession some documents under section 102(1) Cr.PC. but if the document seized is retained for sometime that tantamounts to impounding and impounding of a passport can only be done under the specific provisions of Passport act by the competent authority. 6. According to the petitioner, the order dismissing request for return of his passport and refusing to permit him to go back to Australia is perverse and the same be set aside. 7. 6. According to the petitioner, the order dismissing request for return of his passport and refusing to permit him to go back to Australia is perverse and the same be set aside. 7. Per contra, the petition was opposed saying that the case law relied by the petitioner cannot be said to be applicable to the facts of the case in hand because it is true that if the trial is going on, the accused can appear through his counsel on the dates of hearings except when his personal presence is required and his personal appearance can be dispensed with by the court. But according to the non-petitioner, the position is different because besides the present case, there are two more cases being FIR 12/11 and 49/11 registered on 12.1.2011 and 8.2.2011, at Mahesh Nagar Police Station, pending investigation and besides these three, a protest petition filed by the non-petitioner in final report submitted by PS. Gandhi Nagar on her FIR No. 413/10 is also pending. 8. Distinguishing the facts of Gian Singhs case (supra), it was submitted that said case does not help the petitioner because in that case, the petitioner was a British Citizen and Hon'ble Apex Court held that if he is not permitted that means he would not be able to go home and would be compelled to live in India which is not his home but here the case is different. The petitioner is an Indian Citizen and his entire family lives here and he has no permanent job or citizenship and has only got hourly job in Cole Departmental Store that too on 28.6.2010, i.e. just a month and a half before he came to India on 16.8.2010 when he was arrested. 9. Further that he has not filed any documentary evidence to show that he is studying in Australia in some institute. According to her, he, by hook or crook wants to leave the country with intention not to come back so as to hinder the investigation and harass the non-petitioner (wife). She submitted that no error has been committed by the learned trial court by rejecting his request at this stage when investigations of three criminal cases are pending against him. 10. The non-petitioner (wife) also filed an additional affidavit along with copies of FIR No. 49/2011 and 12/2011 registered on 8.2.2011 and 12.1.2011 at police station Mahesh Nagar. She submitted that no error has been committed by the learned trial court by rejecting his request at this stage when investigations of three criminal cases are pending against him. 10. The non-petitioner (wife) also filed an additional affidavit along with copies of FIR No. 49/2011 and 12/2011 registered on 8.2.2011 and 12.1.2011 at police station Mahesh Nagar. It was submitted that the learned court has not committed any error in passing the orders on his two applications on 4.10.2010 and that Gian Singhs case (supra) does not help him because in Gian Singhs case the deciding factor was the fact that Gian Singh was a British Citizen and settled there and was facing trial in the court and Apex Court observed that by not permitting him to go or not releasing his passport, he will be compelled to live in India which was not his home but here the petitioner admittedly is an Indian Citizen and has his home in India. 11. I have heard the arguments of both the parties and have gone through the case law relied upon by the petitioner who mainly placed reliance on the Apex Courts judgment in the matter of Gian Singh v. State of Rajasthan, (1999) SCC 694 and Suresh Nanda v. CBI, AIR 2008 SC 1414 . Reliance was also placed on the judgment of Chaitali v. State of Punjab, II (2005) DMC 331 . 12. Considered the arguments advanced by both the parties. 13. Hon'ble Apex Court in Gian Singhs case (supra) was dealing with the case of a British Citizen settled in England, who was facing a criminal prosecution lodged by the father of his erstwhile daughter-in-law who had been divorced by his son in England. The petitioner in that case had prayed for quashing of FIR before this court which was, however, not allowed and the Hon'ble Apex Court without disturbing the order of High Court with regard to quashing of FIR against him dealt with the application for release of passport and observed that if the passport of the petitioner who was a British Citizen is not released, he will be compelled to remain in India which is not his home and he will continue to remain till the final criminal proceedings. The Apex Court also dealt with apprehension of the opposite party that if he was allowed to go back to England, he might not make himself available for trial. The Apex Court felt that the situation was not free from difficulty. On the one side the legal process has to reach its normal culmination and on the other side the agony of the appellant that he cannot go home, is genuine. 14. The Apex Court came out with a solution and the solution was the direction to the ACJM to return the passport on execution of his personal bond and two solvent sureties. Thus in that case, the determining factor was that Gian Chand was a British Citizen and had settled in England and India was not his home and if his passport was not released he would have to live in India, i.e. away from his home. Moreover, in that case the trial was going on and he was allowed to appear through counsel. 15. In the case of Suresh Nanda (supra), the Apex Court dealt with the provisions regarding impounding of passport and it was held that impounding of a passport can only be done by the passport authority under section 10(3) of the Passports Act. 1967. But in the concluding para, the Apex Court made it clear that it was not deciding as to whether a passport can be impounded as condition for grant of bail. 16. Placing reliance on a catena of judgments mentioned hereinabove, the main thrust of the arguments was that irreparable loss will be made to the petitioner. For want of his passport, he cannot travel back to Australia where he was working and studying and that there is nothing on record to show that he had some bad record or he may not come back from abroad. The court can put any condition. 17. On the other hand, the non petitioners sole argument that all the cases relied upon by the petitioner related to the matters where the trials were pending before the court, petitioner was allowed to appear through his counsel. But in the present case the investigation of four cases lodged against him is pending. The court can put any condition. 17. On the other hand, the non petitioners sole argument that all the cases relied upon by the petitioner related to the matters where the trials were pending before the court, petitioner was allowed to appear through his counsel. But in the present case the investigation of four cases lodged against him is pending. This argument of the non-petitioner was controverted by the petitioner saying that the non-petitioner and her family members are lodging reports against him one after the other and that the investigations are being kept pending intentionally on account of non-petitioner making allegations even against the officers. 18. I have carefully gone through the case law and also the facts of the present case. Since the investigations of four cases are pending wherein the petitioner may be personally required to assist the investigation it will be just and proper to dispose of these petitions with liberty to the petitioner to move again after completion of the investigation of the four cases registered against him. 19. The Public Prosecutor appearing for the State is also directed to ensure that the investigations are completed in a reasonable time. 20. Both the petitions as well as stay applications stand disposed accordingly. *******