The challenge in this petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 [for short, `the Code'] is to the orders passed by learned Sessions Judge dated 30.09.2011 in Criminal Misc. Application No.34 of 2011 whereby order below Exh.58 passed in Criminal Misc. Application No.6318 of 2006 by learned J.M.F.C., Nadiad came to be confirmed. It is further prayed that the petitioner be permitted to travel abroad by returning his passport, which is lying with the respondent No.3
2. It is the case of the petitioner that offences punishable under Section 332, 504, 186 and 114 of the IPC came to be registered at Navsari Town Police Station being I CR No.88 of 2006 and while the petitioner came to be enlarged on bail no condition was imposed by the concerned Court by directing the petitioner to deposit the passport. However, upon a communication dated 06.02.2010 addressed by Police Inspector, Jalalpore Police Station of Police Navsari and copy of which is submitted to the Regional Passport Officer, Surat, Gujarat State to impound passport of the petitioner, after issuing two show cause notices to seek clearance about permission from the concerned court where the above criminal case was pending against the petitioner and ultimately the passport came to be impounded by respondent No.3.
3. In the application preferred before the courts below, a view is taken that there was no condition imposed for depositing the passport while enlarging the petitioner on bail and further one of the accused had gone abroad and not returned to the native country and expiry date of passport of the petitioner is 09.04.2012 and, therefore, it was not advisable to give any clearance or No Objection Certificate, as prayed for to the petitioner.
4. While assailing the above orders passed by the courts below, Mr. Mitul Shelat, learned advocate for the petitioner, would contend that considering the nature of offence and gravity of the crime alleged and more particularly when the petitioner is to travel abroad, action of the respondent No.3 taken at the behest of the respondent No.2 to impound the passport of the petitioner is illegal. At the same time, the reasoning of the courts below in refusing permission or issuing No Objection Certificate in a case like this is also illegal and further the learned Sessions Court while exercising revisional power erred in recording incorrect facts about expiry of the date of passport as 09.04.2012 since the validity of the passport is up to 29.09.2016. It is further submitted that the visa of the petitioner in the Panama State expires on 09.04.2012 and, therefore, when there is no likelihood of commencement of trial or immediate requirement of the presence of the petitioner, the passport impounded by the respondent authority may kindly be released in the interest of justice. Reliance is placed on decisions of this Court; [i] in the case of Dhiren Baxi, C.A. v. Regional Passport Officer, Ahmedabad [2003(1) GLH 1] and [ii] in the case of Vaishaliben Bhailalbhai Patel [Special Civil Application No.446 of 2010 - order dated 30.03.2010] in support of his arguments.
5. Learned counsel appearing for the respondent No.3 as well as learned APP submit that presence of the petitioner during the trial is necessary and considering the conduct of one of the accused, who has not returned to the native country and that the courts below have rejected the application of the petitioner to release passport, this Court will not issue any direction, as prayed for. It is also submitted that upon receiving a look out circular, the passport of the petitioner came to be impounded and no interference is called for by this Court.
6. Having heard learned counsel for the parties and on perusal of the record and more particularly considering the nature of offence registered against the petitioner under Section 332, 504, 186 and 114 of the Indian Penal Code and that presence of the petitioner during the trial can be secured by imposing proper conditions, suitable directions can be issued to the Passport Authority to release the passport of the petitioner.
Considering the overall facts and circumstances of the case and law laid down by this Court in the cases of Dhiren Baxi [supra] and Vaishaliben Bhailalbhai Patel [supra] about the scope of exercising powers under Section 6 of the Passport Act, 1967, the respondent No.3 is hereby directed to release the passport of the petitioner within a week from the receipt of the order of this Court, upon the petitioner filing proper application and undertaking regarding availability of the petitioner during the trial and further that he would supply correct address and whereabouts including the permanent residence and while travelling abroad. However, xerox copy of the passport be kept on record of the trial court.
With the aforesaid, this petition stands disposed of.
[Anant S. Dave, J.] *pvv L> Top