The present Petition has been filed by the Petitioner under Articles 226 / 227 of the Constitution of India read with Article 21 of the Constitution of India for the prayer that appropriate writ, order or direction may issued quashing and setting aside the order dated 5th May, 2012 passed by the Police Inspector, Anand Town Police Station, Anand (at Annexure-A) and further directing the authorities to issue Police Clearance Certificate ("PCC") for the purpose of obtaining his F-4 category visa.
Heard learned Advocate Mr. P.A.Jadeja for the Petitioner. Learned Advocate Mr. Jadeja has stated that it is his fundamental right to visit abroad and at present though he has no plan to visit abroad immediately, but he is required to take necessary steps for the purpose of his F-4 visa with US authorities for migration. Therefore, such PCC is necessary. He has referred to and relied upon the orders passed by this Court in Special Criminal Application No. 655 of 2012 dated 30.03.2012 and Special Criminal Application No.446 of 2010 dated 30.03.2010 in support of his submission that in a similar circumstances, the permission has been granted subject to the conditions. Learned Advocate on instructions has stated that the Petitioner is ready to abide by any condition like deposit of the documents regarding his properties at Kheda in India and / or solvent surety, which he would be giving for his presence for the trial which could be secured in future.
Learned APP Ms. Archana Raval however strongly resisted this on the ground that PCC is like a certificate that no case is pending, whereas a case is pending at the stage of framing of charge. Therefore, it was submitted that the authorities may not grant any such certificate, as in future, if he is charged for the offence, he may have to face the trial, and during such pendency, a permission cannot be granted. It was submitted that if he is allowed such clearance, then it may happen that he may go to USA and his presence may not be secured, which may cause prejudice to the trial and the trial may be delayed. Learned APP Ms. Raval has also stated that the submissions regarding fundamental rights or Article 21 are also misplaced.
In view of this rival submissions, it is required to be considered whether the Petitioner can claim the clearance certificate as a matter of right and whether any of his fundamental right can be said to have been violated including Article 21.
It is required to be mentioned that the observations made by the Hon'ble Apex Court in case of Smt. Maneka Gandhi v. Union of India and Anr., AIR 1978 SC 597 stands on a different facts and different footings, and the Petitioner who is facing or likely to face the trial, cannot claim the PCC and that too for the purpose of migration. It is required to be mentioned that admittedly the Petitioner is seeking F-4 category visa for the purpose of permanent migration, which may cause prejudice to the trial if he is not available for the purpose of trial. The submission made by learned Advocate on the ground of Article 21 or fundamental right is also misconceived as no such absolute right can be claimed when the person is subject to the law of land or the criminal justice system prevalent in the Country like India. In the facts of the present case, the charges against the Petitioner are regarding the negligence, for which the alleged offence under Section 304 A is alleged. It cannot be said that he has been deprived of any of his right by not granting a PCC. The PCC inspite of such pendency would mean that he is authorised not only to travel abroad, but get the F-4 category visa for permanent stay, which could ultimately frustrate the trial and he cannot be booked or tried for the alleged offences. This would run counter to the rule of law and the criminal justice system if such permission were to be easily granted. At the same time, the fact remains that the trial has not yet commenced and when the person like the Petitioner is claiming that his file was moved years back before the authorities, he could have filed appropriate discharge application for discharge in anticipation. No such effort has been made. Therefore, while considering the right of the Petitioner and the right of the prosecution, the balance has to be maintained. The balance could be maintained only by asking the authorities to grant PCC on an undertaking to be filed by the Petitioner specifically stating that he will not claim any right merely because such PCC is granted to travel abroad and he shall furnish solvent surety of Rs.5 lacs and this undertaking shall be filed before this Court before the PCC could be issued. It is again made clear that the Petitioner may send such PCC and the authorities would be entitled to make a note while granting such PCC that it is in view of the undertaking given before the High Court such certificate is granted without prejudice.
Therefore, subject to the aforesaid condition, the Police Clearance Certificate is directed to be issued to the Petitioner in terms of the aforesaid order after the undertaking as stated above is filed by the Petitioner on record of this case.
The matter is adjourned to 6th July, 2012.
(Rajesh H.
Shukla,J) Jayanti* Top