1) By this application, the applicant has challenged the order dated 20.4.2012 passed by the learned Special Judge, C.B.I, Court-II, Ahmedabad in C.B.I Criminal Revision Application No.4 of 2012 as well as order dated 22.3.2012 passed by the learned Additional Chief Judicial Magistrate, Special C.B.I. Court No.2, Ahmedabad (Rural) Mirzapur in Criminal Miscellaneous Application No.1 of 2012 and further seeks a direction to the respondent No.2 to handover the passport for a period of three months, that is, up to 31.7.2012 in order to enable the petitioner to travel to U.K. and U.S.A. for medical checkup and treatment.
2) The applicant herein filed an application being Criminal Miscellaneous Application No.1 of 2012 before the learned Additional Chief Judicial Magistrate, Special C.B.I. Court No.2, Ahmedabad (Rural) seeking return of the applicant's passport as well as permission to visit U.K., U.S.A and United Arab Emirates for a period of six months from 1.3.2012 to 31.8.2012 for the purpose of medical treatment. By an order dated 22.3.2012, the learned Additional Chief Judicial Magistrate disallowed the application mainly on the ground that the charge has not yet been framed and as per the directions of this Court, the trial is to be completed within a specified period. Being aggrieved, the applicant filed a revision application before the learned Special Judge (C.B.I.) at Ahmedabad City under section 397 of the Code of Criminal Procedure, 1973, who by the impugned order dated 20.4.2012, rejected the application mainly on the ground that the High Court has directed to expedite the matter and, as such, there should not be any order of the subordinate court which may cause delay in the execution of the direction of the High Court.
3) Mr. Saurin A. Shah, learned advocate for the applicant invited the attention of the Court to the facts of the case to submit that the applicant herein was initially suffering from Prolapsed Intervertebral Disc, for which he was initially given conservative treatment in the year 2002 but since the treatment was not sufficient, he came to be operated for Laminectomy Disectomy-L5-S1. During the course of treatment, Cholecystitis was diagnosed whereby Laproscopic Cholecystectomy operation came to be performed. Since the treatment over the years did not show any improvement in his health, the applicant made an application before the concerned court in May 2010 for return of passport, pursuant to which the passport came to be handed over to him with permission to travel to U.S.A. and U.K. for treatment but unfortunately at the relevant time, the applicant could not procure a U.S.A. visa. Subsequently, the applicant has been diagnosed to be suffering from Moderately Differentiated Adenocarcinoma of Splenic flexure of Colon with involvement of surrounding fat and mesenteric nodes whereby on 6.6.2011 he had to undergo a surgery, that is, Exploratory Laporotomy with subtotal colectomy with ileo-descending anastomosis at Bhatia Hospital. He was again admitted to Breach Candy Hospital in July 2011 on account of non-healing of wound over abdomen. In September 2011, the applicant came to be diagnosed to be suffering from Colon Cancer and was given Chemotherapy treatment on several occasions. Apart from the ongoing treatment, by way of further course of action as regards the treatment to be given to the applicant, it was essential for him to be examined by the experts based at U.S.A. and U.K. Hence, the above referred application came to be filed, seeking permission to travel to U.S.A. and U.K. The learned advocate for the applicant submitted that the main ground for rejecting the application is that this Court has directed that the trial be expedited and be completed within a fixed time schedule. It was submitted that in the present case, two of the co-accused have been discharged by the trial court, in respect of which, revision applications are pending before the Sessions Court and moreover two discharge applications are pending before learned Chief Judicial Magistrate, C.B.I. Court No.2, Ahmedabad (Rural). Unless the same are decided, the question of framing charge and proceeding further with the trial would not arise. It was submitted that under the circumstances, the refusal to grant permission on the ground that the trial had been expedited by this Court is unwarranted. It was, accordingly, urged that considering the nature of illness which the applicant is suffering from, it is necessary for him to obtain treatment at U.S.A. Under the circumstances, the applicant be permitted to go abroad till 31.7.2012.
4) On the other hand, Mr. Y.N. Ravani, learned Counsel for the C.B.I. opposed the application submitting that in the light of the direction issued by this Court to conclude the trial as expeditiously as possible, the matter is likely to get prolonged if the applicant is not present at the time when the charge is to be framed. It was further submitted that there is nothing on record to show that necessary medical treatment is not available in India. Under the circumstances, no case has been made out for grant of the relief prayed for.
5) A perusal of the record of the case indicates that in two other offences registered against the applicant, the concerned courts have granted him permission to travel abroad for his medical treatment at U.K., U.S.A and U.A.E. till 31st August 2012. Insofar as the present case is concerned, on an earlier occasion, the applicant had been granted permission to leave India. However, at the relevant time, he could not travel abroad as he could not obtain a visa. Under the circumstances, it is apparent that there is no other objection to the applicant traveling abroad except that this Court has expedited the trial.
6) From the submissions advanced by the learned advocates for the respective parties, it is an admitted position that two co-accused have been discharged, pursuant to which, the respondent No.2 has filed revision applications before the sessions court which are still pending for hearing. Two other co- accused have filed applications seeking discharge, which are still to be decided by the concerned court. Under the circumstances, it appears that it is most unlikely that the charge would be framed or that the trial would proceed further in the immediate future. Under the circumstances, this Court is of the view that both the courts below were not justified in rejecting the application on the ground that the trial has been ordered to be expedited. The impugned orders, therefore, cannot be sustained.
7) For the foregoing reasons, the application succeeds and is, accordingly, allowed to the following extent;
i) The impugned order dated 20.4.2012 passed by the learned Special Judge, C.B.I. Court-II, Ahmedabad in C.B.I. Criminal Revision Application No.4 of 2012 as well as the order dated 22.3.2012 passed by the learned Additional Chief Judicial Magistrate, Special C.B.I. Court No.2, Ahmedabad (Rural) Mirzapur in Criminal Miscellaneous Application No.1 of 2012, are hereby quashed and set aside.
8) Criminal Miscellaneous Application No.1 of 2012, is hereby allowed to the following extent;
i) The respondent No.2 is directed to handover the passport to the applicant from the date of receipt of a copy of this order till 31.7.2012. The applicant is permitted to travel to U.K. and U.S.A. via U.A.E for medical checkup and treatment till 20th July 2012, subject to the following conditions;
a) The applicant shall produce his residential address of U.K. and U.S.A before the C.B.I. and before this Court.
b) The applicant/accused shall also produce his contact telephone numbers and mobile numbers before C.B.I.
c) The applicant shall deposit an amount of Rs.10 Lacs as cash security amount, which shall be returned to the applicant after he returns back from his journey and deposits his passport with the respondent No.2. In case, any amount deposited earlier is still lying with the Court, it shall not be necessary for the applicant to deposit an amount to that extent.
d) The applicant/accused or any other on his behalf shall not tamper with the evidence or investigation.
e) The applicant/accused shall produce the Xerox copy of his passport before the Court.
f) The applicant/accused shall file his undertaking that he will not transfer his immovable property which is situated at Bombay.
g) The applicant/accused shall remain present before the Court at the time of framing of the charge.
h) The applicant/accused may intimate to C.B.I or before this Court after returning from U.S.A./U.K.
9) Rule is made absolute to the above referred extent. Direct service is permitted.
(HARSHA DEVANI,J.) Vahid