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2014 DIGILAW 24 (SIK)

Sunil Kumar Marwaha v. State of Sikkim

2014-05-22

N.K.JAIN

body2014
JUDGMENT Jain, CJ (Oral). Heard learned counsel for the parties. 2. The petitioner has preferred this Crl. Misc. Petition, with a prayer that respondents, particularly, the Investigating Officer of FIR No. 48(9) 12 dated 03.09.2012, Police Station Namchi, be directed to release the petitioner’s Passport. 3. It is stated in the petition that on 02.09.2012, a written complaint was lodged by one Sunil Kumar Jaiswal, before Namchi Police Station and on that basis, FIR No. 48(9) 12 was registered on 03.09.2012 under Sections 420, 409, 471 and 120 B IPC. The petitioner, being apprehended with the arrest, approached this Court for grant of anticipatory bail under Section 438 Cr. P.C. This Court was pleased to allow the bail application No. 07 of 2012 of the petitioner vide order dated 31.10.2012 on certain conditions. One of the conditions was that he shall deposit his Passport with the Investigating Officer and shall not be released without the leave of this Court. 4. It is further stated in the petition that the main accused namely, Mr. Sanjeev Nagar approached this Court for quashment of above FIR by filing Crl. M.C. No. 01 of 2013 under Section 482 Cr. P.C., which was allowed by this Court vide order dated 26.02.2013 and FIR No. 48 (9) 12 dated 03.09.2012 was quashed. However, the State Government as well as complainant Sunil Kumar Jaiswal, both preferred Special Leave Petition before the Hon’ble Apex Court, challenging the order of this Court dated 26.02.2013. Both the SLPs were registered as SLP (Crl.) No. 4751/2013 and 4865/2013. Hon’ble the Apex Court granted leave to appeal and also stayed the effect and operation of the order of this Court, vide order dated 05.07.2013 passed in SLP (Crl.) No. 4751/2013, a copy of which is placed on record as Annexure P-8 at page 37 of the paper-book. It is also stated that soon after quashment of FIR by this Court, the Passport of the petitioner was returned to him, but after grant of stay by Hon’ble Apex Court, the Passport was again deposited by the petitioner before the Investigating Officer. It is also stated that the FIR was lodged way back on 03.09.2012. The stay was also passed by the Hon’ble Apex Court way back on 05.07.2013, but till date investigation has not been concluded. 5. It is also stated that the FIR was lodged way back on 03.09.2012. The stay was also passed by the Hon’ble Apex Court way back on 05.07.2013, but till date investigation has not been concluded. 5. It is further stated that the petitioner’s eldest daughter Smt. Archana Kapur, who is married to Shri Maharth Kapur, is settled in New York, USA and his second daughter Smt. Divya Samani is married to Shri Sunil Samani and they are settled in London, U.K. The petitioner along with his wife, Smt. Geeta Marwaha take a family trip abroad every year to meet their daughters and their families. But this time they could not plan their travelling as Passport of petitioner is lying in deposit with the Investigating Officer. Since investigation has been delayed by two years, therefore, it will be appropriate to direct the Investigating Officer to return the Passport of the petitioner to him so he may plan his travelling to meet his daughters. A copy of the order of Hon’ble Apex Court as well as orders of this Court have also been placed on record. 6. A notice to show cause was issued to respondents. After service of notice, the matter was listed on 12.05.2014. The Investigating Officer was present in person along with case diary of the case. Today also, Ms. Gegee Norbu Bhutia, D.S.P./Investigating Officer is present along with case diary. On 12.05.2014, it was stated by learned Public Prosecutor that the matter relates to embezzlement, which has also been taken place in Hong Kong and Singapore. Therefore, in case the petitioner does not travel to Hong Kong and Singapore, then they have no objection in returning the Passport with a condition that he will return the Passport soon after his arrival in India. On 12.05.2014, the Public Prosecutor was directed to file progress report of the case. The petitioner was also directed to file an affidavit that he will not travel both the countries, i.e. Hong Kong and Singapore and will deposit his Passport with Investigating Officer, soon after his return to India. Order dated 12.05.2014 is reproduced as under: - “Mr. J.B. Pradhan, learned Public Prosecutor submitted that as per direction of this Court, the Investigating Officer is present along with case diary of the case. He further submitted that delay in investigation occurred because of not granting permission by Central Government. Order dated 12.05.2014 is reproduced as under: - “Mr. J.B. Pradhan, learned Public Prosecutor submitted that as per direction of this Court, the Investigating Officer is present along with case diary of the case. He further submitted that delay in investigation occurred because of not granting permission by Central Government. He further submitted that now the required permission has been granted. He also submitted that Investigating Officer has no objection in returning the Passport, provided the petitioner does not travel to Hongkong and Singapore and returns his Passport soon after arrival in India. Learned Public Prosecutor is directed to file a progress report of the case and other facts, which he has submitted in the form of submissions. Learned counsel for the petitioner may also file an affidavit that he will not travel both the countries, i.e. Hongkong and Singapore and will return his Passport soon after return to India. List on 22.05.2014.” 7. In compliance of order of this Court, the petitioner has filed his affidavit dated 19.05.2014 and in paragraph 4 thereof he specifically mentioned that he agrees and undertakes that he will not travel to “Singapore” and “Hong Kong” and will return the Passport within a week from the date he returns to Kolkata/India. Paragraph 4 of the affidavit is reproduced as under: - “4. That in the event my prayers as granted, I agree and undertake that I will not travel to Singapore and Hongkong and that within one week of my return to Kolkata, India from Kaula Lumper I will surrender my Passport with the I.O. (Respondent) of the case.” 8. The petitioner has also mentioned the places where he wants to visit. During the course of arguments learned counsel for the petitioner, on instructions, submitted that petitioner will not go to Singapore, Hong Kong and any other countries, except mentioned in his affidavit. Since the required affidavit as suggested by respondents, has been filed by petitioner, therefore, in my view, the ends of justice will meet in case respondents are directed to return the Passport of the petitioner to him. 9. In view of the above discussions, the petition is allowed. The respondent/Investigating Officer of FIR No. 48(9) 12 dated 03.09.2012, Police Station Namchi, who is present in person in Court, is directed to return the Passport of the petitioner to him within three days, after taking proper receipt in writing. 9. In view of the above discussions, the petition is allowed. The respondent/Investigating Officer of FIR No. 48(9) 12 dated 03.09.2012, Police Station Namchi, who is present in person in Court, is directed to return the Passport of the petitioner to him within three days, after taking proper receipt in writing. The petitioner is directed not to visit any other country except mentioned in his Application/Affidavit filed in this Court. The petitioner is specifically directed, not to visit Singapore and Hong Kong and will return his Passport within a week from the date of his arrival in India or within two months from today, whichever is earlier.