(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) Rule.
Mr.Pandya, learned APP waives service of notice of Rule for the respondent State. The presence of the other parties to the proceedings would not be required at this stage.
The present application has been preferred by the applicant - accused for release of his passport and permit him to travel abroad on any terms and conditions that may be deemed fit by this Court.
We have heard Mr.Devnani, learned Counsel for the applicant and Mr.Pandya, learned APP for the State.
As such similar aspect came to be considered by this Court in a case where the passport was deposited with the Sessions Court and after the trial was over and the appeal against the order of acquittal was preferred, which was admitted by this Court, in Criminal Misc. Appeal No.480 of 2012 in Criminal Appeal No.66 of 2011. This Court in the said matter observed, thus, at paragraph 5 as under:-
"5.We find that the appeal is already admitted and, therefore, the movement of the applicant would remain under the control of the Court, but at the same time, since the acquittal has taken place before the trial Court, until he is convicted, free movement may be permitted, but subject to the control of the orders of this Court in the appeal. Therefore, the applicant would be entitled to get the passport released for the purpose of renewal or issuance of fresh passport, but such has to be on condition that he has to redeposit the passport, since at this stage, he has not shown any evidence that he is required to visit foreign country for any reason. At the same time in future if, pending the appeal, the applicant is required to visit foreign country by showing authenticated record, he can move appropriate application for handing over of the passport and at that stage, Court may consider the aspects, including that of imposition of appropriate conditions."
The same view deserves to be taken. As in the present case, the passport is with this Court, the applicant may not be required to move the learned Sessions Judge. Further, the distinguishing circumstance is that the applicant is simultaneously praying to travel abroad on account of the requirement of Visa and getting citizenship.
As such, on account of acquiring citizenship, for securing the the presence of the applicant, his own undertaking would not be sufficient, but his family members have to ensure that the applicant comes back and until the appeal is concluded, his movement is under the control of the Court.
It is submitted by the learned Counsel for the applicant that the family members namely; his wife as well as his son are to remain in India.
Therefore, it appears to us that additional condition is required to be imposed than the normal condition of filing the undertaking by the applicant, apart from depositing a particular amount by way of security.
In view of the aforesaid, the following orders:-
(a) The passport of the applicant shall be released on condition that:-
(i) the applicant deposits a sum of Rs.1,00,000/- (Rupees one lac only) with this Court;
(ii) the applicant files an undertaking to this Court that he shall come back to India within a period of six months from the date of filing the undertaking;
(iii) that the wife of the applicant, Mrs.Ramilaben Kaushikbhai Patel and the son of the applicant, Margil Kaushikbhai Patel, both shall file undertaking before this Court to the effect that the applicant, Kaushikbhai Kaushalbhai Patel shall come back to India within a period of six months from the date of undertaking;
(iv) All the above undertakings shall state that the applicant shall redeposit the passport of the country, whose citizenship may be acquired by the applicant within one month from his entry to India and the applicant shall not leave the limits of India thereafter, without prior express permission of this Court.
The application is disposed of accordingly. Rule made absolute to the aforesaid extent.
(Jayant Patel, J.) (Paresh Upadhyay, J.) vinod Top