Gujarat High Court
Sankaet Kale vs State Of Gujarat & on 10 August, 2016
Author: C.L.Soni
Bench: C.L. Soni
R/CR.MA/11232/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
11232 of 2015
In CRIMINAL MISC.APPLICATION NO. 18625 of 2013
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SANKAET KALE....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR DEVANG VYAS, ADVOCATE for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 10/08/2016
ORAL ORDER
1. The respondent No.2 - the original accused was arrested in connection with the offence punishable under section 135 of the Customs Act, 1962. After he was refused the bail by the learned Additional City Sessions Judge, City Civil & Sessions Court, Ahmedabad, he approached this Court by filing Criminal Miscellaneous Application No. 18625 of 2013 seeking bail under section 439 of the Code of Criminal Procedure, 1973 ("the Code") in connection with his arrest for the above said offence. This Court vide order dated 28.11.2013, released the him on certain conditions including the condition that he shall Page 1 of 7 HC-NIC Page 1 of 7 Created On Sat Aug 13 03:05:18 IST 2016 R/CR.MA/11232/2015 ORDER surrender his passport, if any, to the lower court within a week and shall not leave the State of Gujarat without prior permission of the Sessions Judge concerned.
2. He thereafter moved an application being Criminal Misc. Application No. 2011 of 2014 seeking modification of the condition. It was disposed of as not pressed by the respondent No.2 on the ground that the application did not contain necessary averments required for seeking modification of the condition. He, then, moved Criminal Application No. 7770 of 2014 seeking direction for release of his passport for three months and for permission to leave for Dubai on the terms and conditions which this Court may deem fit to be imposed. He sought permission to withdraw the said application for filing fresh application with some more material. The said application was, thus, disposed of as withdrawn vide order dated 16.6.2014.
3. Thereafter, he moved an application being Criminal Miscellaneous Application No. 4551 of 2014 seeking modification of condition (c) and (d) of the order of bail dated 28.11.2013. By condition (c) and (d), the respondent No.2 was required to surrender his passport and not to leave the State of Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat Aug 13 03:05:18 IST 2016 R/CR.MA/11232/2015 ORDER Gujarat without prior permission of the Sessions Court concerned. The said application was considered by this Court and vide order dated 26.3.2014, condition (c)&(d) were suspended and put under abeyance for a period of six weeks from 27.3.2014 so as to permit the respondent No.2 to leave the State of Gujarat and also the Territory of India for the purpose of entering the Territory of United Arab Emirates (Dubai). The Court also directed in the said order that on expiry of the period of six weeks, the respondent No.2 shall return to the territory of India and shall immediately surrender his passport to the concerned authority and shall comply with all other conditions of bail. It appears that after coming to India and after lapse of some time, the respondent No.2 again moved Criminal Misc. Application No.17149 of 2014 seeking modification of condition (c)(d) and (e) contained in para 6 of the order for bail and to permit him to leave the territory of the State of Gujarat and India to go to the United Arab Emirates for a period of six weeks. This application was made on the ground that the validity of his VISA was to expire on 4th November, 2014 and if he was not permitted to leave the territory of India so as to enter the territory of United Arab Emirates, his VISA shall stand terminated.
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R/CR.MA/11232/2015 ORDER
4. The Court having considered the facts stated in the application, partly allowed the application and ordered that the condition (c)(d) and (e) shall stand suspended and remain under abeyance for a period of six weeks from 4.11.2014 so as to permit the respondent No.2 to leave the territory of the State of Gujarat and India and enter the territory of the United Arab Emirates. Certain other conditions were placed by the said order and it was provided in the said order that on expiry of the said period, the respondent No.2 shall immediately return to the territory of India and surrender his passport to opponent NO.2 - Director of Revenue Intelligence. Now, as per this order, the respondent No.2 was to return to India on expiry of six weeks' period from the date of the order. However, he moved the Criminal Miscellaneous Application No.20866 of 2014 seeking extension of suspension of bail conditions for a further period of sixty days and to permit him to extend his stay in the United Arab Emirates for a period of sixty days. At the hearing of the said application, when the Court found that the time granted to the respondent No.2 to return to India and to surrender his passport to the concerned authority had already passed, the Court was not inclined to consider the application and passed the following order on 19.12.2014:
"1. This is an application for extension of time for a period of 60 days granted by this Court vide Page 4 of 7 HC-NIC Page 4 of 7 Created On Sat Aug 13 03:05:18 IST 2016 R/CR.MA/11232/2015 ORDER order dated 3.11.2014. As per the said order, the applicant was required to immediately return to the territory of India and to surrender his passport to respondent No.2 on expiry of the period granted by this Court. It is stated that the time granted by this Court under the said order has already expired. Under these circumstances, it is required for the applicant to first return to the territory of India and only then any of his application, including the present application, could be considered. It is directed that if the applicant does not return to the territory of India within one week from today, Non-bailable warrant should be issued against the applicant.
2. S.O. to 9th January 2015."
5. It appears that after the said order, since no action was taken, the Court asked the office of this Court to inquire about the action taken for issuance of the Non Bailable Warrant ("NBW").
6. The Court passed further order on 8.5.2015 as under:
"1. Learned A.P.P. Mr.K.L. Pandya states that since the applicant-accused is in foreign country i.e. United Arab Emirates (UAE) with which our country has extradition treaty, the office is to follow necessary procedure requesting the concerned Ministry of the Central Government to send request to the concerned Embassy of the said foreign country for the purpose of extraditing the applicant accused to our country so that the Non Bailable Warrant issued by this Court in the present application could be executed.
2. The office may therefore follow necessary procedure . For the said purpose, Stand Over to 10th August, 2015. "
7. The Deputy Director, Directorate of Revenue Intelligence has moved the present application seeking cancellation of the bail of the respondent No.2 on the ground that the respondent No.2 committed breach of conditions imposed by this court in Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Aug 13 03:05:18 IST 2016 R/CR.MA/11232/2015 ORDER the order of bail. The Court in the present application issued notice returnable on 11th September, 2015. No information is made available to the Court as to what action for service of summons was taken.
8. It is pointed out by the concerned branch of the Registry of this Court dealing with the Criminal matters that as per the guidelines issued by the Ministry of Home Affairs IS Division II, Legal Cell, New Delhi dated 11th February, 2009 regarding service of summons/notice in judicial process on the persons residing abroad, the summons in the criminal matters could be sent to the Ministry of Home Affairs for effecting the service to the persons residing abroad.
9. Therefore, in light of such guidelines, notice of Rule issued in the present application is required to be sent to the Ministry of Home Affairs, Government of India, New Delhi for its service upon the respondent No.2 in Dubai where he has gone for validation of his VISA. The Registry of this Court shall therefore issue fresh notice of Rule to the respondent no.2 and shall forward the same to the Ministry of Home Affairs, New Delhi with a request to serve the same upon the respondent no.2 - accused in Dubai with which India is stated to have Page 6 of 7 HC-NIC Page 6 of 7 Created On Sat Aug 13 03:05:18 IST 2016 R/CR.MA/11232/2015 ORDER Treaty for Extradition. The Office shall indicate tentative returnable date in the notice as 20th October, 2016. On receipt of the notice of Rule forwarded by the Registry to the Ministry of Home Affairs, the Ministry of Home Affairs shall take appropriate action for service of notice upon the respondent no.2 accused in Dubai as per the existing procedure for such purpose if possible before the returnable date and intimate the progress of the action taken to this Court. Post the matter for further orders on 20th October, 2016.
(C.L.SONI, J.) anvyas Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Aug 13 03:05:18 IST 2016