Himachal Pradesh High Court
Ravi Bala vs Hannah Grace Jude on 20 September, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 20th DAY OF SEPTEMBER, 2022
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
1. CRIMINAL MISC. PETITIONS NO.2167 OF 2022 & 2487
OF 2022 IN CRIMINAL MISC. PETITION (MAIN) U/S 482
CRPC NO.273 OF 2014
2. CRIMINAL MISC. PETITIONS NO.2168 OF 2022 & 2488
OF 2022 IN CRIMINAL MISC. PETITION (MAIN) U/S 482
CRPC NO.323 OF 2015
1. CRMPs NO.2167 & 2487 OF 2022 in CRMMO No.273 of
2014
Between
1. RAVI BALA
W/O SHRI KRISHAN BALDEV CHADHA
R/O 4647-A, GURUNANAK WARA KHALSA COLLEGE
PUTLI GHAR,
AMRITSAR (PUNJAB)
2. SMT. MUKESH @ MUKUL
W/O SHRI JAG MOHAN SINGH
R/O H.NO.948, SECTOR 8
HID FLATS RANJEET AVENUE
AMRITSAR PUNJAB
AT PRESENT RESIDING WITH
HER PARENTS AT 4647-A, GURUNANAK WARA
KHALSA COLLEGE, PUTLI GHAR
AMRITSAR (PUNJAB)
(DELETED)
.....PETITIONERS
(BY SH. R.D. SHARMA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY (HOME) TO THE
GOVERNMENT OF HIMACHAL PRADESH
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CRMPs NO.2167 & 2487 of 2022 in CRMMO No.273 of 2014
CRMPs NO.2168 & 2488 of 2022 in CRMMO No.323 of 2015
...2...
2. PALLAVI CHADDA
WIFE OF SHRI GOURISH CHADHA,
R/O VILLAGE & P.O. 53 MILE
.
YOL ROAD RAJHIYANA,
TEHSIL NAGROTA BHAGWAN
DISTRICT KANGRA
HIMACHAL PRADESH
....RESPONDENTS
(BY SH. HEMANT VAID, ADDITIONAL ADVOCATE GENERAL
FOR R-1)
(BY SHRI AMAN SOOD, ADVOCATE, FOR R-2)
2. CRMPs NO.2168 & 2488 OF 2022 in CRMMO No.323 of
2015
Between
GOURISH CHADHA
2/O SHRI KRISHAN BALDEV CHADHA
R/O 4647-A, GURUNANAK WARA KHALSA COLLEGE
PUTLI GHAR,
AMRITSAR (PUNJAB)
...PETITIONER
AND
1. STATE OF H.P.
THROUGH PRINCIPAL SECRETARY (HOME)
TO THE GOVERNMENT OF H.P.
SHIMLA-2
2. MRS. PALLAVI CHADHA
D/O JANAKRAJ KUMAR
R/O 53 MILES, TEHSIL NAGROTA BHAGWAN
DISTRICT KANGRA, H.P.
...RESPONDENTS
Whether approved for reporting? Yes.
These petitions coming on for pronouncement this day, the
Court passed the following:
ORDER
Petitioners Ravi Bala (in CRMMO No.273 of 2014) and Gourish Chadha (in CRMMO No.323 of 2015) have filed ::: Downloaded on - 20/09/2022 20:06:37 :::CIS CRMPs NO.2167 & 2487 of 2022 in CRMMO No.273 of 2014 CRMPs NO.2168 & 2488 of 2022 in CRMMO No.323 of 2015 ...3...
Cr.MP No.2167 of 2022 (by Petitioner Ravi Bala) and Cr.MP No.2168 of 2022 (by Petitioner Gourish Chadha), for release of .
the Passport of Ravi Bala with permission to go to the United States of America (USA) and for release of the passport of Gourish Chadha to process his application to go to USA.
Whereas, Cr.MP No.2487 of 2022 (by Petitioner Ravi Bala) and Cr.MP No.2488 of 2022 (by Petitioner Gourish Chadha) have been filed for amendment of the condition, with prayer to delete the condition directing to deposit the Passports, imposed upon the petitioners at the time of granting them bail by this High Court on 10.3.2015 in Cr.MP(M) No.73 of 2015, filed by petitioner Ravi Bala and Cr.MP(M) No.113 of 2015, filed by petitioner Gourish Chadha.
2. Passports of petitioners have been deposited with the SHO of the concerned Police Station, in compliance of condition imposed upon the petitioners, vide order dated 10.3.2015, passed in Cr.MP(M) No.73 of 2015 and Cr.MP(M) No.113 of 2015.
3. Prayer for modification of condition with respect to Passports has been made, on the basis of judgment of the Supreme Court in Suresh Nanda v. Central Bureau of Investigation, (2008) 3 SCC 674, wherein it has been held as under:
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"18. In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, .
this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a "passport" is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh's Principles of Statutory Interpretation (9th Edn., p.133). This principle is expressed in the maxim generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing."
4. Perusal of copy of order dated 10.3.2015, passed in Cr.MP(M) No.73 of 2015 and Cr.MP(M) No.113 of 2015, placed on record, clearly depicts that Passports of the petitioners have neither been impounded nor have been ordered to be impounded by the Court, but a condition has been imposed, at the time of granting bail, to deposit the Passports with SHO of the Police Station concerned, with another condition that the petitioners shall not leave India without permission of the Court.
5. In present case, Court has not ordered for seizure or impounding of the Passports but has imposed condition of depositing the Passports with the SHO of the Police Station concerned, which amounts to surrendering the Passports and it, at no stretch of imagination, can be said impounding or seizure of the Passports.
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6. In Shyam Sahni v. Arjun Prakash and others, (2020) 16 SCC 788, where a condition, directing to surrender .
Passport, imposed by learned Single Judge and interfered by Division Bench, was subject matter of consideration, the Supreme Court upheld the condition directing to surrender the Passport by observing as under:
"27. Since repeated undertakings were filed and the same were not complied with, learned Single Judge directed respondent No.1 to surrender his passport. The said order was passed to ensure the presence of the first respondent and compliance of the order of the Court. It cannot be said that the learned Single Judge exceeded the jurisdiction or committed an error in ordering surrender of the passport. In order to ensure the presence of the parties in the contempt proceedings, the Court is empowered to pass appropriate orders including the surrender of passport. While dealing with child custody matter, in David Jude vs. Hannah Grace Jude, (2003) 10 SCC 767, the Supreme Court directed Union of India to cancel the passport of contemnor No.1 and to take necessary steps to secure the presence of contemnor No.1 with the child in India and to ensure her appearance before the Court on the date of hearing.
28. It is pointed out that the Division Bench proceeded as if the learned Single Judge has ordered impounding of the passport of respondent No.1; whereas, the learned Single Judge has only directed respondent No.1 to deposit his passport in the Court. As discussed earlier, the purpose of directing respondent No.1 to surrender his passport was only to ensure the presence of respondent No.1 who was filing repeated undertakings before the Court but was not complying with the same. In our view, the Division Bench was not right in setting aside the order of the learned Single Judge in directing respondent No.1 to deposit his passport before the Court and the judgment of the Division Bench cannot be sustained. In order to ensure the presence of respondent No.1 and to ensure further progress of the trial, the order of the learned Single Judge directing respondent No.1 to deposit his passport before the Court stands confirmed.::: Downloaded on - 20/09/2022 20:06:37 :::CIS
CRMPs NO.2167 & 2487 of 2022 in CRMMO No.273 of 2014 CRMPs NO.2168 & 2488 of 2022 in CRMMO No.323 of 2015 ...6...
..... ...... ...... ......
30. The impugned order of the Division Bench dated 01.08.2018 passed by the High Court of Delhi at New .
Delhi in FAO (OS) No.210 of 2017 is set aside and this appeal is allowed. In order to ensure the presence of respondent No.1 and to ensure further progress of the trial, the order of the learned Single Judge directing respondent No.1 to deposit his passport before the Court stands confirmed. The learned Single Judge is requested to take up the civil suit being CS (OS) No.1134 of 2008 and continue with the trial and dispose the same expeditiously preferably within a period of nine months. No costs."
7. In plethora of like cases, reported in Pramod Kumar Saxena v. Union of India and others, (2008) 9 SCC 685;
Jinofer Kawasji Bhujwala v. State of Gujarat, (2020) 6 SCC 298;
P. Chidambaram v. Central Bureau of Investigation, (2020) 13 SCC 337; and M. Ravindran v. Intelligence Oficer, Directorate of Revenue Intelligence, (2021) 2 SCC 485, the Supreme Court has either upheld or has imposed condition of surrendering Passport in order to ensure presence of parties in the proceedings by confirming that Court is empowered to pass appropriate order to ensure presence of a person, including condition of surrender of Passport.
8. There is difference between 'surrender of passport' in the Court or before the Investigating Officer and 'impounding of passport'. Direction to surrender the Passport, on the direction of Court, in the Court or with the Investigating Officer, does not amount to impounding of Passport.
Therefore, condition as to surrender/deposit of the Passport in ::: Downloaded on - 20/09/2022 20:06:37 :::CIS CRMPs NO.2167 & 2487 of 2022 in CRMMO No.273 of 2014 CRMPs NO.2168 & 2488 of 2022 in CRMMO No.323 of 2015 ...7...
the Court or with the police can always be imposed by the Court in appropriate cases as a condition to ensure presence .
of a person in the Court proceedings or during investigation.
9. In view of above discussion, I do not find any merit in the prayer made in Cr.MPs No.2487 of 2022 and 2488 of 2022, for deletion of condition imposed upon the petitioners to deposit their Passports with the SHO of the Police Station concerned.
10. It has been submitted that 70 years old Ravi Bala, petitioner in Cr.MP No.2167 of 2022, is permanent resident of the United States but had come to Amritsar (Punjab) in India for marriage of her son Gourish and her daughter Mukesh @ Mukul and during that time FIR in present case was registered against her whether she was enlarged on bail by this Court, vide order dated 10.3.2015, passed in Cr.MP(M) No.73 of 2015 and since then, because of condition imposed, at the time of granting bail, not to leave India and to deposit the Passport, she is in India for the last about 8 years.
11. It has been further claimed that petitioner Ravi Bala is suffering from Type-III Cirrhosis of liver, which is a disease of serious nature and requires early treatment.
Krishan Baldev Chadha, husband of Ravi Bala, is Green Card holder of United States and he remains in United States most of the time and at present he is 80 years old and, at this ::: Downloaded on - 20/09/2022 20:06:37 :::CIS CRMPs NO.2167 & 2487 of 2022 in CRMMO No.273 of 2014 CRMPs NO.2168 & 2488 of 2022 in CRMMO No.323 of 2015 ...8...
stage, company of husband and wife for each other is important, more particularly when wife is suffering from the .
disease which requires treatment and further that petitioner, being permanent resident of United States, can get benefits of specialized treatment in the said country as well as of Medical Insurance granted to the citizens of that country but the petitioner could not go to United States because of impounding of Passport and for want of permission to leave India. Copy of reports of Ultrasound and FibroScan of liver have also been placed on record.
12. Petitioner Gourish Chadha has filed Cr.MP No.2168 of 2022, with prayer for release of the Passport, on the ground that his sister and brother-in-law are permanent resident of United States and the petitioner is interested to go to said country and his sister, intending to help him, has processed his application for necessary permission and for which Passport of the petitioner is a necessary document to be submitted alongwith other documents, with further submission that in case there is delay in processing the application, the matter will be closed and, thereafter, it will take number of years to process the matter again.
13. In Satish Chandra Verma v. Union of India, (2019) 2 SCT 741, the Supreme Court has observed that freedom to go ::: Downloaded on - 20/09/2022 20:06:37 :::CIS CRMPs NO.2167 & 2487 of 2022 in CRMMO No.273 of 2014 CRMPs NO.2168 & 2488 of 2022 in CRMMO No.323 of 2015 ...9...
abroad has much social value and represents the basic human right of great significance.
.
14. In Parvez Noordin Lokhandwalla v. State of Maharashtra and another, (2020) 10 SCC 77, the Supreme Court permitted a person, who was an Indian Citizen and was holding an Indian Passport and was residing in the United States since 1985 and was holder of Green Card and was likely to face invalidation of Green Card, if was not permitted to travel United States, with following observations:
"18. This Court also discussed the scope of the discretion of the court to impose "any condition"
on the grant of bail and observed (Sumit Mehta v. State of NCT of Delhi, (2013) 15 SCC 570 : (2014) 6 SCC (Cri) 560) "15. The words "any condition" used in the provision should not be regarded as conferring absolute power on a Court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail."
19. In Barun Chandra Thakur v. Ryan Augustine Pinto, 2019 SCC OnLine SC 1899, this Court restored a condition mandating that the respondent seek prior permission from a competent court for travel abroad. The condition, which was originally imposed by the High Court while granting anticipatory bail was subsequently deleted by it. This Court made the following observations with respect to imposing restrictions on the accused's right to travel:
"9. ....There could be no gainsaying to that the right to travel abroad is a valuable one and an integral part of the right to personal liberty. Equally, however, the pre-condition of securing prior permission before travelling abroad is a crucial ingredient which undoubtedly was ::: Downloaded on - 20/09/2022 20:06:37 :::CIS CRMPs NO.2167 & 2487 of 2022 in CRMMO No.273 of 2014 CRMPs NO.2168 & 2488 of 2022 in CRMMO No.323 of 2015 ...10...
engrafted as a condition for the grant of anticipatory-bail in this case. ......At best, the condition for seeking permission before travelling abroad could have been regulated, .
not deleted altogether.
20. This Court has passed multiple orders previously allowing an accused enlarged on bail to travel abroad. In Ganpati Ramnath v State of Bihar, 2017 SCC OnLine SC 1998, this Court allowed an accused-applicant to travel abroad for medical treatment, modifying its earlier bail order, noting that the applicant had travelled abroad on the ground of medical necessity on six occasions with the permission of the court and had returned. In K. Mohammed v The State of Kerala, 2020 SCC OnLine SC 860, this Court allowed the accused- appellant to travel abroad to meet in the r exigencies of a family situation. In Tarun Trikha v State of West Bengal, 2015 SCC OnLine SC 1879, this Court allowed the accused-petitioner to travel to Indonesia in connection with his employment and to return once the work was completed. In Pitam Pradhan v State of AP, 2014 SCC OnLine SC 1795,this Court while granting anticipatory bail, permitted the petitioner to travel abroad noting that his job required him to travel abroad at frequent intervals and may lose his employment if he were not permitted to travel abroad."
15. In B.P. Mohan Rao v. State of Karnataka and others, (2020) 20 SCC 591, the appellant therein, who was an accused under Section 498-A of the Indian Penal Code, was permitted to leave India, for treatment in Australia, for a temporary period, on executing bonds to the satisfaction of the trial Court with direction to come back to India within four months from the date on which he leaves India.
16. Learned Additional Advocate General has opposed the submissions of the learned counsel for the petitioners and ::: Downloaded on - 20/09/2022 20:06:37 :::CIS CRMPs NO.2167 & 2487 of 2022 in CRMMO No.273 of 2014 CRMPs NO.2168 & 2488 of 2022 in CRMMO No.323 of 2015 ...11...
has submitted that treatment of petitioner Ravi Bala is also available in India and further that after having permission to .
visit the United States, petitioner Gourish Chadha may leave India for fleeing from justice. It has further been submitted that, in any case, if permission is to be granted to the petitioners to leave India, then they may be permitted for doing so for specific period with direction to report to the Investigating Officer on their return and deposit the Passports again with the Investigating Officer, as also ordered by the Supreme Court in Parvez Noordin Lokhandwalla's case. He has further submitted that petitioners shall also be directed to deposit substantial amount as security in the trial Court for release of their Passports, as was directed by the Supreme Court in B.P. Mohan Rao's case.
17. Learned counsel for the petitioners has submitted that though petitioner Ravi Bala is Green Card holder of the United States, however, her son Gourish Chadha is resident of India and they are having immoveable property in India and, therefore, they are having permanent roots in India, and that they are also ready to abide by any condition that may be imposed by the Court for release of the Passports and for permission to leave India to petitioner Ravi Bala.
18. Considering the entire facts and the circumstances and pronouncements of the Supreme Court, ::: Downloaded on - 20/09/2022 20:06:37 :::CIS CRMPs NO.2167 & 2487 of 2022 in CRMMO No.273 of 2014 CRMPs NO.2168 & 2488 of 2022 in CRMMO No.323 of 2015 ...12...
referred supra, Passport of petitioner Ravi Bala is ordered to be released on furnishing solvent surety in the sum of .
`2,00,000/- to the satisfaction of the Registrar Judicial of this Court or the Trial Court, as the case may be, wherever the Passport is lying, and she is permitted to leave India to visit USA with direction that the petitioner shall come back to India within six months from the date on which she would leave India and shall deposit her Passport with the authority from where the same shall be released to her within two weeks on her return to India.
19. During her visit to the United States, petitioner Ravi Bala shall ensure her representation, either in person or through counsel, as and if warranted, by the concerned Court for adjudication of the matter in the Trial Court.
20. The Passport of petitioner Gourish Chadha is also ordered to be released to him, on furnishing surety in the sum of `2,00,000/- to the satisfaction of the Registrar (Judicial) of this Court or the Trial Court, as the case may be, wherever the Passport is lying, for the purpose of processing the application for going to United States. After the processing of the application for going to United States is complete, petitioner Gourish Chadha shall immediately deposit back the Passport with the authority from where it shall be released.
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21. CRMP No.2487 of 2022 in CRMMO No.273 of 2014 and CRMP No.2488 of 2022 in CRMMO No.323 of 2015 are .
dismissed; and CRMP No.2167 of 2022 in CRMMO 273 of 2014 and CRMP No.2168 of 2022 in CRMMO No.323 of 2015, are allowed in the aforesaid terms.
The parties are permitted to use/produce copy of this order, downloaded from the High Court Website, before the authorities concerned and the said authorities shall not insist for production of certified copy, but, if required, passing of order may be verified from the website of the High Court.
The applications stand disposed of.
( Vivek Singh Thakur )
September 20, 2022(sd) Judge.
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