Court No. - 42
Case :- APPLICATION U/S 482 No. - 22927 of 2019
Applicant :- Daria Molchan
Opposite Party :- State Of U.P.
Counsel for Applicant :- Samarth Krishna,Sandeep Saxena
Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard Sri Samit Gopal, learned Senior Counsel assisted by Sri Sandeep Saxena and Sri Bablu Singh, learned counsel for the applicant and learned A.G.A. for the State.
This application has been filed praying for setting aside the order dated 27.04.2019 passed by CJM, Gorakhpur in Case Crime No. 93 of 2018 (State of U.P. vs. Daria Molchan) under Sections- 419, 420, 467, 468 IPC and Section 12/14 of the Foreigners Act, 1946, Police Station- Cantt., District- Gorakhpur and for permission to the applicant to visit Ukraine for four weeks after obtaining return air ticket to India.
The brief facts of the case are that the applicant is a Ukraine national aged about 21 years. She was issued a tourist visa by the Indian Government on the basis of application I.D. 1004VD17D417, Passport No. FA716678 and ETA No.
9005DC 47-H, valid from 15.12.2017 to 04.04.2018. She was apprehended on 02.04.2018 at about 2:30 p.m. and FIR was lodged against her on 03.04.2018 at about 3:50 p.m. Her presence in India on 02.04.2018 is stated to be on valid visa which was never cancelled or withdrawn at any point of time but she was implicated for an offence under Section 12/14 of the Foreigners Act, 1946. Applicant had valid visa and passport with her at the time of her arrest and she did not committed any fraud nor prepared any forged document but she has been implicated under Sections 419, 420, 467, 468 IPC. The applicant has great admiration and respect for India and thus she came to this country. The applicant has already been enlarged on bail vide Criminal Misc. Bail Application No. 16253 of 2018 on 02.05.2018 by the court on the following conditions:-
(i) The applicant shall file an undertaking to the effect that she shall not seek an adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of her absence, without sufficient cause, the trial court may proceed against her under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure her presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against her in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the date fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against her in accordance with law.
The applicant claims that she is abiding by the aforesaid conditions and there is no condition imposed by this court which prohibits her from going abroad.
The applicant claims that she has been brought up by her grand- mother in Ukraine since her mother had re-married and her step-father died on 07.05.2019 with whom she grew up. She is in the state of shock after receiving the sad news of demise of her step-father and she wants to visit her family in Ukraine to pay her last respects at the grave of her step-father. Her grand- mother Ms. Pulayka Iyugmyla Viktorivna resident of Sumy Street-G. Konnjratyeya 85, Ukraine is seriously ill and the applicant also wants to meet her grand-mother since she is breathing her last virtually.
The applicant applied to the Embassy of Ukraine in India for granting to her permission to enable her to travel Ukraine and come back to India which was allowed and she was given temporary travel document to travel abroad between 8th, April, 2019 to 8th May, 2019. The applicant purchased air ticket from Ukraine airlines to travel to Ukraine on 7th May, 2019 and to return to India on 21st May, 2019.
She applied for permission to travel abroad vide application dated 26.04.2019 before the CJM, Gorakhpur which was rejected by order dated 27.04.2019. It has been stated in the affidavit in support of application that no chargesheet has been filed by the police as yet and the trial has not commenced against the applicant. Her application for visiting Ukraine was rejected by the CJM, Gorakhpur on the ground that the applicant is a foreign national and in case she does not returns trial against her would be prejudiced. It has also been recorded by the CJM that while granting bail to the applicant this court did not indicated anything in its order regarding foreign travel by applicant.
Learned counsel for the applicant has submitted that the applicant has been falsely implicated in this case when her visa has not expired, it was valid upto 04.04.2018. She was arrested on 02.04.2018 and FIR was lodged against her on 03.04.2018. He has further submitted that the offence alleged under Sections 419, 420, 467 and 468 IPC are not made out against the applicant since the necessary ingredients of the alleged offences are not made out from the FIR lodged against the applicant. More than a year has passed but the police has not been able to file chargesheet against the applicant and therefore the trial has not commenced. Conditions in the bail order dated 02.05.2018 of this Court will not be violated if the applicant is allowed to visit her family for one month. The temporary travel documents have already been provided to the applicant by the Ukraine Embassy in India and fresh travel document will be issued to her to travel abroad if the permission is granted by this Court.
Counsel for the applicant has further stated that fresh permission has already been obtained in this regard by the applicant from the Ukraine Embassy.
Learned A.G.A. on the other hand has vehemently opposed this application on the ground that there is no law which permits a foreign national implicated in India and about to be subjected to trial to travel abroad and in case the applicant is permitted to travel abroad, she may not return bank to this country and in that case the interest of justice would be adversely affected. He has further submitted that while granting bail this Court did not provided for any foreign travel by the applicant to her native country and, therefore, the grant of permission sought by the applicant is not justified. He has supported the order passed by the Court below on the application of the applicant.
After considering the rival submissions and going through the order dated 27.04.2019 passed by C.J.M., Gorakhpur on the application of the applicant the undisputed facts on record are that the applicant sought permission for travelling to Ukraine from 07.05.2018 to 22.05.2018. The Ukraine Embassy granted her permission for temporary travel to Ukraine upto 08.05.2019 and she got the ticket booked for 07.05.2019. The fact that the grandmother of the applicant is seriously ill, was not disputed by the counsel for the State before the Court below, nor it was disputed that the chargesheet has not been filed against the applicant by the Investigating Officer of the police as yet court below has recorded clear finding that from the report of the concerned Clerk, no chargesheet has been filed by the police against the applicant. This Court while granting bail directed the presence of the applicant before the Trial Court on each date fixed, either personally or through counsel before the trial court. Further, direction was to be presented before the Court on the date fixed for:-
(i) opening of the case.
(ii) framing of charges.
(iii) Recording of statement u/s. 313 Cr.P.C.
As yet none of the stages of the trial have come since the trial has not commenced at all. The police has not been able to submit chargesheet against the applicant even after lapse of period of one year.
The apprehension of the learned A.G.A. that in case the applicant is permitted to travel abroad she may not return to this country is not well placed.
This Court and the Apex Court has repeatedly held that an Indian National is entitled to travel abroad subject to conditions during the pendency of criminal case (Ganpati Ramnath Vs.
State of Bihar and Others, 2019 Lawsuit (SC) 895, Shilpa Shetty Vs. Rikhab Raj Bhandari and Others, 2011 (1) SCC (Cri.) 1039) and judgment of this Court (Ravindra Nath Bhargava Vs. State of U.P. and Others, 2019 Lawsuit (All) 155).
The Apex Court in the case of Republic of Italy through Ambassador and Others Vs. Union of India, (2013) 4 SCC 721, has held in paragraph 133 that Articles 14 and 21 of the Constitution of India are applicable to even an alien, when sought to be subjected to legal process of this country. This country has authority to apply and enforce the laws of the country against the persons of other country, when its legitimate interests are affected. Therefore, the applicant would remain subject to the Articles 14 and 21 of the Constitution of India and cannot be discriminated.
The Apex Court in the case of Massimilano Latorre and Others Vs. Union of India and Others, Laws (SC) 2016-5-154, in the case of Italian Marines granted permission to one of the accused to travel to Italy on certain conditions.
In view of the above legal position of this case the applicant is permitted to visit Ukraine for a period of three weeks as per the temporary permission granted or to be granted by the Ukraine Embassy within this month subject to the following condition:-
(a) Applicant, Daria Molchan prior to her departure shall furnish an undertaking by means of an affidavit before the C.J.M, Gorakhpur, duly affirming, accepting and recognising that she remains and will remain, even on departure from India, under the authority of the CJM, Gorakhpur.
(b) The applicant shall surrender her passport to the Ukranian Authorities on her departure from India.
(c) She shall not leave Ukraine and will return to India on or before the period of three weeks expires from date of her departure from India.
(d) The applicant shall report to an identified police station in Ukraine around her place of residence and the identity and details of the applicant shall be communicated to the Ukraine Embassy in India within a week of her reaching Ukraine by the aforesaid police station. The Ukraine Embassy in India shall contact the police station aforesaid and seek the report about the applicant's presence.
(e) Ambassador of Ukraine in India shall file an undertaking on affidavit before the Court of CJM, Gorakhpur prior to departure of applicant stating that she shall be made to return of India within the time granted by this order.
In the event of default committed by the applicant her bail may be cancelled by the court below. The order dated 27.04.2019 passed by the CJM, Gorakhpur is hereby quashed.
With the aforesaid observations this application is allowed. Order Date :- 24.6.2019 Rohit