Gujarat High Court
Manish K. Rao vs The State Of Gujarat on 1 April, 2024
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/SCR.A/13483/2023 JUDGMENT DATED: 01/04/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 13483 of
2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
===============================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
MANISH K. RAO
Versus
THE STATE OF GUJARAT & ORS.
================================================================
Appearance:
MR PARTHIV B SHAH(2678) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 3
KSHITIJ M AMIN(7572) for the Respondent(s) No. 4
MR RC KODEKAR(1395) for the Respondent(s) No. 2
MS. MONALI BHATT, APP, for the Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 01/04/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE) Page 1 of 10 Downloaded on : Fri Apr 19 21:02:38 IST 2024 NEUTRAL CITATION R/SCR.A/13483/2023 JUDGMENT DATED: 01/04/2024 undefined
1. Rule. Learned Additional Public Prosecutor waives service of rule on behalf of respondent No.1-State. Learned advocate Mr.R.C.Kodekar waives service of rule on behalf of respondent No.2. Learned standing counsel Mr. Kshitij Amin waives service of rule on behalf of respondent No.4.
2. This petition under Article 226 of the Constitution of India is filed for issuance of writ of habeas corpus for releasing the petitioner, who according to the petitioner is in custody. The petitioner also prays for relief to take an appropriate action and grant compensation of Rs.5,00,000/- for illegal detention to be recovered from the responsible officer. The case has arisen on account of intercepting of the petitioner at the Airport who was to travel abroad, but was not permitted to travel on account of a lookout circular(LOC) by CBI and later on released, but by the time the flight had already departed.
3. The very day the matter was moved urgently before the Court and therefore, on 10.10.2023 when the matter was taken up, a statement was made by learned advocate for the petitioner that the petitioner has been released and therefore, the prayer clause-A would not survive. However, the petitioner wanted to pursue the petition insofar as the prayer clause-B claiming compensation of Rs.5,00,000/- is concerned.
4. Learned advocate for the petitioner submitted that though the petitioner was an accused in offense being investigated by the CBI, Gandhinagar, the petitioner was enlarged on regular bail by the Court on several conditions and thereafter, as the petitioner was desirous to travel out of Page 2 of 10 Downloaded on : Fri Apr 19 21:02:38 IST 2024 NEUTRAL CITATION R/SCR.A/13483/2023 JUDGMENT DATED: 01/04/2024 undefined India, he had sought such permission from the Court concerned and therefore, under the order of the Court, the petitioner was travelled out of India and therefore, he reached the Airport to board the flight which was scheduled on 10.10.2023 in the early morning.
4.1 It is submitted that despite there being order of the Court and the petitioner having shown the aforesaid order to the authorities, still the petitioner was not permitted to board the flight and was in fact kept in the Airport Police Station.
4.2 Learned advocate submitted that when the order was passed permitting the petitioner to travel out of India, CBI was represented by the counsel and therefore, it was not required for the petitioner to serve the copy of the order upon the CBI or any authority before travelling. It is submitted that though the petitioner had intimated CBI office, when he was intercepted on the basis of lookout circular, it was necessary that the CBI officer should have arrived immediately and pointed out to the immigration authority about the order passed by the Court, but the concerned CBI officer instead of coming immediately came to the Airport Police Station by 09:00-09:30, by that time, the flight had left and the petitioner was unable to board such flight and therefore, causing difficulties for the petitioner for which he is claiming compensation.
4.3 In this regard, the petitioner has relied upon an unreported judgment of Delhi High Court in case of Pankaj Kumar Sharma v/s. Govt.of NCT of Delhi and others, for claiming the compensation for illegally detaining the petitioner.
Page 3 of 10 Downloaded on : Fri Apr 19 21:02:38 IST 2024NEUTRAL CITATION R/SCR.A/13483/2023 JUDGMENT DATED: 01/04/2024 undefined 4.4 Learned advocate has therefore, argued that the CBI was well aware of the order of the Court permitting travelling, still did not give clearance to the petitioner and hence, immigration authority intercepted the petitioner. Even airport authority was made aware of the order but still did not permit the petitioner to board the flight. The CBI officer once informed was expected to act quickly so that the petitioner could board the flight, but the CBI officer was lethargic. Hence, claim is justified.
5. As against this, learned advocate appearing for respondent No.2 has filed an affidavit in reply, wherein it is indicated that the order passed by the Court was not served upon the CBI and it was served only on 10 th of October 2023 i.e. the date on which the petitioner was scheduled to travel. It is submitted that as at the relevant time, the petitioner having absconded for a very long time, lookout circular(LOC) was issued which was in operation and therefore, a formality was required to be undertaken so that the lookout circular could be put under suspension however, as there was no effective service of the order of the Court granting permission to travel, the aforesaid procedure could not be undertaken. However, the CBI officer concerned immediately upon receiving the telephonic intimation had gone to the Airport and given a written communication on the basis of which the petitioner was permitted to leave.
5.1 It is therefore, submitted that the action either of the airport authority or CBI was not intentional, at best it can be treated as a communication gap and that too at the behest of Page 4 of 10 Downloaded on : Fri Apr 19 21:02:38 IST 2024 NEUTRAL CITATION R/SCR.A/13483/2023 JUDGMENT DATED: 01/04/2024 undefined the petitioner himself.
5.2 It is submitted that though the petitioner is claiming compensation of Rs.5,00,000/-, but the petitioner has not quantified in any manner to arrive at the figure of Rs.5,00,000/- and therefore, the petition deserves to be dismissed.
5.3 It is lastly submitted that the CBI cannot be attributed for any deliberate inaction, but in fact the moment CBI was informed on the phone about the situation at the Airport, the officer immediately addressed a letter to the Airport Police Station and petitioner was allowed to go. Therefore, the CBI has in fact taken corrective measure.
6. The Court has heard learned advocates for the parties and perused the documents placed on record. The case bearing RC No. 20(A)/1999 dated 11.10.1999 was registered by CBI, ACB, Gandhinagar against the present petitioner and others for the offence punishable U/s 120-B r/w 409 & 420 of IPC & Sec. 13(2) r/w 13(1)(d) of The P.C. Act. 1988 on the basis of written complaint of Shri S. Pandey, CVO, New India Assurance Co. Ltd., Mumbai. The investigation revealed that Shri Ashwin Sheth, Administrative Officer; N. C. Parmar, Asst. Administrative Officer; D.S. Patel, Development Officer; M. N. Derasari, P.L. Gosalia & J.R. Mantyar, all Sr. Assistants in conspiracy with the private insurance surveyors viz. Shri Nilesh Joshi, Manish K. Rao, N.P. Gosalia, Ketan Shah, K.L. Rao, Mihir R. Patel, Deepak K. Thakkar & Jayesh Modi caused wrongful loss to the tune of Rs. 19.67 Lakhs approximately to New India Assurance Co. Ltd. and corresponding gain to the private persons and themselves during the period 1997 to Page 5 of 10 Downloaded on : Fri Apr 19 21:02:38 IST 2024 NEUTRAL CITATION R/SCR.A/13483/2023 JUDGMENT DATED: 01/04/2024 undefined 1999 by settlement of false House Holder's Insurance Policy claims. That after completion of investigation, charge sheet was filed against the present petitioner person and others vide Special Case No. 33/2000 U/sec 120-B r/w 420 of IPC and U/sec 13(2) r/w 13(1)(d) of the PC. Act, 1988.
7. The Special CBI Judge, Court No. 04, Ahmedabad was pleased to issue Proclamation under the provisions of Section 82 of Cr.P.C. on 19.12.2006 vide Outward No. 685/2006 since the present petitioner was avoiding arrest since long and Non Bailable Arrest Warrant was remained unexecuted. Further, the petitioner was absconding and concealing himself to avoid the service of the warrant. The Special CBI Judge for CBI Cases at District Court, Ahmedabad (Rural), Bhadra, Ahmedabad was pleased to issue Non Bailable Warrant dated 13.06.2012 vide Outward No. 734/2012 against the present petitioner, resident of U-22, Satellite Complex, Premchandnagar' Road, Satellite, Ahmedabad-380015, which remained un-executed as the present petitioner was concealing himself to avoid the service of the said warrant. Further, the said Warrant was reissued various times but the petitioner had been hiding himself to avoid the service of the said warrant. That accordingly Look Out Circular (LOC) dated 12.01.2021 was originated by the SP, CBI, ACB. Gandhinagar against the petitioner. That in pursuance of the Look Out Circular (LOC), the Immigration Officer, Bureau of Immigration, SVPI Airport, Ahmedabad has acted on such LOC and corresponded letter dated 29.01.2022 to the Station Incharge, Airport Police Station, SVPI Airport, Ahmedabad of the LOC. and informed originator.
Page 6 of 10 Downloaded on : Fri Apr 19 21:02:38 IST 2024NEUTRAL CITATION R/SCR.A/13483/2023 JUDGMENT DATED: 01/04/2024 undefined
8. The present petitioner was arrested on 29.01.2022 at 0800 Hrs at the Airport Police Station, SVPI Airport, Ahmedabad, duly observing all legal formalities. The petitioner was produced before the CBI Court No. 03. Bhadra, Ahmedabad after arrest on 29.01.2022 and the Court was pleased to order the judicial custody of the petitioner till 11.02.2022, vide Warrant of Remand Outward No. 93 /2022 dated 29.01.2022. The petitioner approached the this Court vide Cr.M.A. No. 3190 of 2022, in which this Court granted bail vide order dated 18.02.2022 by imposing certain conditions. That in compliance of the directions issued by the Court, the petitioner has deposited his passport before the trial Court vide safe custody No.35 of 2022 dated 19.2.2022. Thereafter, in the year 2022, LOC of the present petitioner was modified two times by complying the Court's orders. He was allowed to visit USA for the period of 15 days from 26.09.2022 to 17.10.2022 and was allowed to visit Republic of Philippines from 10.12.2022 to 25.12.2022. That the LOC against the present petitioner was modified due to the fact that the present petitioner had deliberately absconded to USA after registration of the case. He has been evading the trial of the instant case for more than 22 years and his conduct is anarchic. He can only be apprehended after LOC was issued against him. The present petitioner has again filed a Criminal Misc. Application No. 199 of 2023 for release of his passport for visit U.S.A. for the period of six month before the Trial Court and Trial Court vide order dated 30.09.2023, had permitted the petitioner to visit USA for the period of two months ie. 10.10.2023 to 09.12.2023.
Page 7 of 10 Downloaded on : Fri Apr 19 21:02:38 IST 2024NEUTRAL CITATION R/SCR.A/13483/2023 JUDGMENT DATED: 01/04/2024 undefined
9. On 10.10.2023, the petitioner was intercepted at SVPI Airport, Ahmedabad by the Immigration Authorities as the petitioner was found to be on LOC subject and handed over to SVPIA Police Station for further necessary action. On 10.10.2023, at about 09:00 hours, CBI got released the petitioner from the custody of SVPIA Police Station.
10. Reportedly, the petitioner after filing of this petition has in fact travelled to USA and has returned as per the permission granted by the Court for subsequent occasion. The petitioner for the instance in question was permitted under order dated 30.09.2023 in CBI in Criminal Misc. Application No.199 of 2023 by the City Civil and Sessions Court, Ahmedabad. The order is dated 30.09.2023 and petitioner has made travel plans to travel on 10.10.2023.
11. It is submission by learned advocate for the petitioner that as CBI Counsel was present in hearing, the CBI ought to have taken necessary steps so that the order of the Sessions Court could be complied. However, it would be pertinent to note that the order dated 30.09.2023 had stipulated certain conditions which are reproduced as under:-
"The applicant is directed to fulfill the following conditions:-
i. The amount of Rs.5,00,000/- deposited by the applicant with the Nazir of this Court shall be treated as security deposit for handing over of the Passport bearing No.649065618 on proper verification and under intimation of this Court.
ii The applicant will submit on Affidavit detailed addresses and telephone numbers where he is to reside during his stay in USA prior to his leaving;
iii The applicant to submit before this Court copies of the return tickets and Visa prior to his leaving the country;Page 8 of 10 Downloaded on : Fri Apr 19 21:02:38 IST 2024
NEUTRAL CITATION R/SCR.A/13483/2023 JUDGMENT DATED: 01/04/2024 undefined iv. The applicant will present himself before this Court on any day within a week after his return from his visit and he Shall also submit his Passport with the Nazir of this Court;
v. The applicant shall also file an undertaking before this Court that Learned Advocate for the applicant shall remain present on the date when the matter is listed on board during the period of his visit to USA and neither the applicant nor his Learned Advocate shall raise any Objection with regard to the same at any point of time;
vi. Yadi of this order be sent to the CBI"
12. Therefore, before Yadi could be sent to CBI, it was pertinent to comply with the aforesaid condition. There is no pleadings regarding when such conditions were complied. Even when question in this regard was posed to learned advocate for the petitioner, he is unable to place on record any convincing submission or document regarding compliance of these conditions.
13. On the other hand, documents produced on record by the CBI, the Register of inward indicating the Yadi of Court order bearing inwarded only on 10.10.2023 (see page 65) is the hand written communication addressed by Police Inspector of CBI to the S.H.O, S.V.P.I. Airport Police Station on the basis of which the petitioner was allowed to leave.
14. In the opinion of the Court, in view of the LOC in operation, the immigration authority was within its jurisdiction to intercept the petitioner to travel out of India and hence, such interception cannot be treated as illegal detention, but an act on the part of the immigration authority in consonance with the LOC.
Page 9 of 10 Downloaded on : Fri Apr 19 21:02:38 IST 2024NEUTRAL CITATION R/SCR.A/13483/2023 JUDGMENT DATED: 01/04/2024 undefined
15. The Court having concluded that the petitioner at no stage was under illegal detention the facts of the case Pankaj Kumar Sharma (supra) is at factual variance. Hence, may not apply to the present case.
16. For the forgoing reasons, the Court is of the view that the petition for issuance of writ of habeas corpus and compensation is thoroughly misconceived and therefore, requires to be rejected. Hence, the petition is hereby dismissed. Rule is discharged.
(A.Y. KOGJE, J) (SAMIR J. DAVE,J) SIDDHARTH Page 10 of 10 Downloaded on : Fri Apr 19 21:02:38 IST 2024