The present Criminal Miscellaneous Application has been filed by the Applicant under Section 482 read with Section 439 of the Criminal Procedure Code, 1973 for the prayer that the passport of the Applicant may be returned and he may be permitted to leave India and accordingly the condition is imposed in the order passed in Criminal Misc. Application No. 57 of 2012 by the learned Additional Sessions Judge, Bhuj dated 31.01.2012 may be set aside.
Heard learned Advocate Mr. Himansu M. Padhya for the Applicant. He has stated that the Applicant desires to go to Muscat (Oman) as he has got a job of a Project Engineer in Khimji Ramdas Construction LLC at Muscat Oman for which he has also produced the certificate and document.
Learned Advocate Mr. Padhya has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Suresh Nanda v. C.B.I, 2008(3) GLR 2333 and submitted that such a passport cannot be impounded as it would otherwise amount to violation of his fundamental rights. He has also submitted that the charge has not been framed and the trial court is likely to take time which would cause prejudice to the Applicant and therefore the condition may be deleted and the passport may be directed to be released.
Learned APP Mr. H.L.Jani however submitted that as reflected in the impugned order passed by the Sessions Court, it is evident that the Applicant does not desire to go for a limited period, but he desires to go for the service and he may settle there permanently. In that circumstance, his presence may not be secured for the purpose of trial and therefore the present Application may not be entertained.
Learned APP has submitted that such conditions are imposed with a view to secure the presence of the accused that he may not flee away from India when his presence is required for the purpose of trial. Learned APP Mr. Jani emphasized that one of the consideration while granting the bail is that the presence of the accused must be secured and therefore such condition may not be deleted.
In view of the rival submissions, it is required to be mentioned that the Applicant accused is charged for the offence under the Prevention of Corruption Act as well as under the Indian Penal Code and he has been released on bail after his arrest, but subject to the conditions including the surrender of passport. The condition of surrender of passport is imposed with a view to see that he may not flee away from India when the trial has commenced. Therefore such conditions are imposed as an empty formality, but in order to give effect to one of the conditions or the consideration, which are always to be kept in mind while releasing the Applicant accused on bail having regard to the guidelines regarding the bail. The relevant criteria which is required to be considered at the time of grant of bail includes whether the presence of the accused can be secured and whether the accused is likely to flee away. It is for the purpose of this criteria or the guideline, the conditions are imposed to secure the presence of the accused.
Therefore, one of the condition is that the presence of the Applicant accused is required to be secured and for that such condition is imposed and therefore when he is not requiring the passport for limited period or limited purpose and he desires to go abroad for his permanent settlement, such a prayer cannot entertained and therefore the present Application deserves to be dismissed and accordingly stands dismissed.
However, it will be open for the Applicant accused to apply to the concerned court for expediting the trial.
(Rajesh H. Shukla,J) Jayanti* Top