Andhra HC (Pre-Telangana)
Abdul Gaffur Khan vs The State Of Telangana on 2 September, 2014
Author: B.Siva Sankara Rao
Bench: B.Siva Sankara Rao
THE HONBLE Dr.JUSTICE B.SIVA SANKARA RAO
CRIMINAL PETITION No.10852 of 2014
02-09-2014
Abdul Gaffur Khan... Petitioner
The State of Telangana Respondents
Counsel for Petitioner: N.Naveen Kumar
Counsel for Respondent: The Public Prosecutor
<GIST:
>HEAD NOTE:
? Cases referred:
1) Siddharam Satlingappa Mhetre v. State of Maharastra
[AIR 2011 SC 312]
2) Sure Nanda v. Central Bureau of Investigation
[(2008) 3 SCC 674]
3) Gian Singh v. State of Rajasthan
[(1999) 5 SCC 694]
THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO
CRIMINAL PETITION No.10852 of 2014
ORDER:
This Criminal Petition filed though mentioned Section 439 (1) (b) Cr.P.C. to relax condition imposed in the bail for return of the passport, the prayer in the application is further to permit the petitioner to leave the Country and for that to return the passport lying in deposit as one of the conditions of the bail order passed earlier and pass such other orders in saying earlier this Court (another Bench) twice permitted the petitioner to leave the Country on his business purposes.
The averments in the application which clearly speak not confined to the scope under Section 439 (1) (b) Cr.P.C. but covering Section 482 Cr.P.C. from the prayer supra are that he is accused of the crime No.308 of 2009 of Police Station Osmania University for the offence punishable under Sections 403 and 406 IPC along with two other individuals and thereby he is A.1 being the Managing Partner of M/s.Ham Associates, a Partnership Entity, in the business of dairy products, carrier and freights and he entered into C & F agreement with Tamilnadu Co-operative Milk Federation Limited of that State Enterprise and earlier he was Managing Partner of M/s.Ham Marketing Services and entered into C&F agreement with the then Andhra Pradesh State Dairy Development Co-operative Federation for Sector-V of Hyderabad region and the allegation is for the bulk supply of milk the amount not paid having lured to supply cheated and misappropriated the A.P. Dairy Development Co-operative Federation for the huge amounts due.
Learned III Additional Metropolitan Sessions Judge, Hyderabad, granted anticipatory bail in Crl.P.No.1580 of 2010 in favour of the petitioner subject to personal bond of Rs.50,000/- with two sureties and to deposit his passport with investigating officer and not to leave the Country without previous permission of the Court. He was enlarged on bail pursuant to the said order submitting himself to judicial custody before the learned IV Additional Chief Metropolitan Magistrate, Hyderabad. He submits that earlier A.2 filed quash petition under Section 482 Cr.P.C. to which the petitioner and A.3 not parties vide Crl.P.No.6676 of 2011 and obtained interim orders of stay of further proceedings in C.C.No.387 of 2011 pending on the file of IV Additional Chief Metropolitan Magistrates Court, Hyderabad. Petitioner earlier filed application to permit to leave the Country for thirty days to go to the Country Rwanda and it appears this Court vide orders dated 05.02.2014 so permitted which is between 26.12.2014 to 12.03.2014 by taking back the passport in deposit in Court made by the investigating officer which was deposited before the Court on 15.03.2014 in relation to the said milk business and other businesses in Mining to establish an Entity in Rwanda and also filed another application for permitting to travel to Rwanda in Crl.P.No.4602 of 2014 that was stated allowed on 22.04.2014 and he travelled to Rwanda on 09.06.2014 and re- deposited the passport in Court on 01.08.2014 and now he seeks requirement of tour to Rwanda for a period of four months for his business purpose supra to return by last week of December, 2014, including the other countries viz., Uganda Democratic Republican Congo, Burundi besides Rwanda. Hence, seeking to relax the condition by permitting to take back the passport for such travelling to re-deposit after return back to India with permission to travel abroad supra.
Perused the material on record. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor who opposed giving blanket orders and saying it is contrary to the provisions of the Act, earlier not brought to the notice of the Court particularly the Circulars issued by the Ministry of External Affairs way back in 1993 under section 22 of the Indian Passport Act, 1967, and from the bar under Section 6 of the said Act and the guidelines in the Apex Courts expression in Siddharam Satlingappa Mhetre v. State of Maharastra of Court can impose the condition which include prohibition to travel beyond India and deposit of the passport besides bank account etc. so that the accused must be available to face the trial which involves embezzlement of the funds of the Government Entity.
Now the points for consideration :
1) what is the order the petitioner is entitled and can be permitted to, to what extent if at all for return of the passport to travel abroad within the power of the Court under Section 482 Cr.P.C.?
2) To what result?
As per the Apex Courts guidelines in Mhetres case (referred supra) as part of the conditions of the bail besides property title deeds required to be deposited including bank accounts and deposit of even the passport of accused before the learned Magistrate though there are expressions in Sure Nanda v. Central Bureau of Investigation and in Gian Singh v. State of Rajasthan saying that the investigating officials have no right of their own to impound the passport, but for the passport officials under the provisions of the Indian Passport Act, 1967. Here, the impounding the passport by investigating officers is entirely different from seeking to deposit the passport by the Court as one of the conditions of the bail to see that the accused shall not jump the bail or form the clutches of the Justice by using or misusing the passport even there is a bar under Section 6 (2) (f) of the Indian Passport Act, 1967 of any person who is accused of crime in India, passport cannot be obtained and travel beyond the country without prior permission and there is a circular of the Central Government in GSR 570E, dated 25.08.1993 as per Section 22 of the Passport Act issued by the Ministry of External Affairs in the public interest that by said notification exempting the citizens of India against whom criminal proceedings are pending in India without facing any hardship for their requirement to travel abroad, a permission of the concerned Magistrate, where the case is pending for travel abroad.
No doubt in the earlier orders these aspects were not considered. Having regard to the above, there is nothing to modify the condition imposed in the bail order passed by the learned Sessions Judge for return of passport but for a direction to the learned IV Additional Chief Metropolitan Magistrate, Hyderabad, before whom the passport is in deposit, in the event of the petitioners application as contemplated by the Circular instructions of the Union of India in GSR 570E dated 25.08.1993 relaxing and modifying to some extent, the bar under Section 6 (2) (f) of the Indian Passport Act within its power under Section 22 of the Indian Passport Act to permit to have travel document pursuant to passport from the authorities concerned for integram period till end of December, 2014, and in such event, when the passport is required for such travel permit to return the passport subject to undertaking to re-deposit and subject to execution of a bond for Rs.2,00,000/- (Rupees Two Lakhs only) with affidavit undertaking of re-deposit the passport and return back to India and on failure to forfeit the said bond amount as one of the modes of penalty contemplated by section 53 (5) of Indian Penal Code.
Accordingly, the Criminal Petition is disposed of.
______________________________ Dr. B.SIVA SANKARA RAO J, 2nd September, 2014