Gujarat High Court
Rudrapratapsinh Hemantkumar Patel ... vs State Of Gujarat on 16 January, 2024
NEUTRAL CITATION
R/SCR.A/10357/2023 ORDER DATED: 16/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 10357 of 2023
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RUDRAPRATAPSINH HEMANTKUMAR PATEL THROUGH POA
HEMANTKUMAR NARSINHBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR NILAY H PATEL(7856) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 16/01/2024
ORAL ORDER
Though served, respondent No.4 has chosen not to appear before this Court.
[1.0] Heard learned advocate for the petitioner, learned APP for the respondent - State.
[2.0] By way of this petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, the petitioner through his power of attorney has prayed for the following reliefs:
"(B) Your Lordships be pleased to direct the Respondent No.2 to issue the Police Clearance Certificate to the petitioner herein;
(C) Your Lordships be pleased to further direct the respondent No.2 to issue the Police Clearance Certificate to the petitioner at the earliest and not later than 7 days from the date of the order of this Hon'ble Court on account of the Page 1 of 7 Downloaded on : Thu Jan 18 20:41:07 IST 2024 NEUTRAL CITATION R/SCR.A/10357/2023 ORDER DATED: 16/01/2024 undefined specific urgency of the petitioner;
(D) Your Lordships be pleased to further direct the respondent No.4 - Regional Passport Authority, Ahmedabad to immediately process with the PCC application of the petitioner after receiving the clearance certificate from the Police Authority;
(E) Your Lordships be pleased to further direct the respondent No.5 - Consular General of India, Toronto to immediately process with the PCC and issue the same to the petitioner after receiving the clearance certificate from the respective Authority;"
[3.0] The brief facts leading to filing of present petition are that on 26.11.2021, offence being C.R. No.11191008211713 of 2021 was registered with Chandkheda Police Station, Ahmedabad City for the offence punishable under Sections 498(A), 323, 294(b) and 114 of the Indian Penal Code, 1860 and sections 3 and 7 of the Dowry Prohibition Act and finally the investigating agency has filed the charge-sheet which culminated into Criminal Case No.2497 of 2022 and present petitioner is shown as absconding accused in column No.2 of the charge-sheet.
[4.0] The petitioner through his power of attorney holder has applied for Immigration VISA of Canada for which police clearance certificate is required as criminal case is pending against the petitioner. In the aforesaid facts, the petitioner prays for issuance of necessary direction directing the respondents to issue police clearance certificate.
[5.0] Learned advocate appearing for the petitioner submitted that it is not in dispute that there is a criminal prosecution pending against his client since 2021. He requested before the Page 2 of 7 Downloaded on : Thu Jan 18 20:41:07 IST 2024 NEUTRAL CITATION R/SCR.A/10357/2023 ORDER DATED: 16/01/2024 undefined concerned Police Station to issue a certificate in that regard. However, for the reasons best known to the concerned Police Station, the same was not issued. Without going into the merit or demerit of the case, I may only say that the petitioner shall once again apply for the Police Clearance Certificate before the concerned Police Station, and the concerned Police Station shall issue a certificate as regards the pendency of the prosecution against the petitioner. Learned advocate for the petitioner has relied on (i) oral dated 09.09.2022 passed by the Punjab & Haryana High Court in the case of Kuldeep Singh vs. Union of India and Others rendered in CWP No.19331 of 2022; (ii) decision dated 29.10.2021 of the coordinate Bench of this Court in the case of Patel Ankurbhai Shapurji vs. State of Gujarat & 2 Others rendered in Special Criminal Application No.9799/2021; (iii) order dated 01.10.2015 passed by the Punjab & Haryana High Court in the case of Daler Singh vs. Union of India and Others rendered in CWP No.12143 of 2015 and (iv) order dated 03.02.2023 passed by Kerala High Court in the case of Akshay Kiran @ Arjun vs. State of Kerala rendered in Crl. M. C. No.662 of 2023 and requested to allow the present petition.
[6.0] Learned APP has vehemently opposed the present petition and stated that the present petition is not personally filed by the petitioner but through his power of attorney holder. Petitioner is facing charge the charge-sheet wherein petitioner is shown as absconding accused in column No.2 and hence, present petition deserves to be dismissed on the count that the petitioner wants to avoid his presence and do not join the investigation and indirectly he wants to stay away from attending the trial. Further, the authorities relied upon on behalf of the petitioner are not Page 3 of 7 Downloaded on : Thu Jan 18 20:41:07 IST 2024 NEUTRAL CITATION R/SCR.A/10357/2023 ORDER DATED: 16/01/2024 undefined applicable to the present case in view of the peculiar facts of the present case. Present is not a case wherein right of petitioner is jeopardized. Petitioner is already residing abroad and thus, his liberty is not curtailed or his right to travel is also not denied and thus, there is no breach of fundamental right of the petitioner. Hence, she has requested to dismiss the present petition.
[7.0] Having heard learned advocates appearing for the respective parties, it appears that against the present petitioner offence being C.R. No.11191008211713 of 2021 was registered with Chandkheda Police Station, Ahmedabad City for the offence punishable under Sections 498(A), 323, 294(b) and 114 of the Indian Penal Code, 1860 and sections 3 and 7 of the Dowry Prohibition Act. The name of accused persons are mentioned and name of present accused is also mentioned and the address of the petitioner mentioned in the FIR is TORONTO, Canada. After investigation, charge-sheet is filed on 24.03.2022 wherein present petitioner is shown as absconding in column No.2. Present petitioner has preferred online application to respondent No.3 - Passport Authority for police clearance certificate. Respondent No.4 has sent an email to the petitioner informing the petitioner about forwarding PCC application but to pendency of criminal offence, PCC is not issued and hence, the Passport Authority informed that police verification report is not clear and application of the petitioner is under review at Indian Embassy. Hence, the petitioner has requested to direct the respondent Authority to issue the PCC as the complainant and his wife is trying to restrain the petitioner from getting immigration and work VISA to be issued by the Government of Canada and hence, she has filed the complaint and due to non-issuance of Page 4 of 7 Downloaded on : Thu Jan 18 20:41:07 IST 2024 NEUTRAL CITATION R/SCR.A/10357/2023 ORDER DATED: 16/01/2024 undefined PCC, the petitioner being deprived from right to work and right to travel to Canada and further it is stated that if the petitioner returns to India then it will ruin his career and there is no gravity of offence in the eyes of law and offence is private in nature and non-issuance of PCC is nothing but abuse of process of law.
[7.1] Herein, petitioner has made false statement that he wants to travel to Canada. Even today, petitioner is in Canada and he is not denied to travel abroad and insofar as authorities of Punjab & Haryana High Court, this Court and Kerala High Court relied on by learned advocate for the petitioner are concerned, in said cases, only complaint came to be filed and investigation was going on and charge-sheet was not filed. Even, those authorities are based on right of accused under Article 21 of the Constitution of India to travel abroad. Herein, no any fundamental breach of petitioner's right as petitioner is already in Canada. On the contrary, if the present petition is allowed then ultimately the petitioner would succeed in thwarting the criminal proceeding which is already registered against the petitioner and after due investigation charge-sheet is filed though petitioner is shown as absconding accused in column No.2 of the charge-sheet and he has not joined the investigation and hence, if such application is allowed, it would amount to premium to such a wrongdoer and based on such application, petitioner wants to stay permanently in Canada and out of the reach of Indian Law. Hence, petitioner is not entitled for the police clearance certificate.
[7.2] Considering the peculiar facts of the present case, the authorities relied on by the learned advocate for the petitioner on the (i) oral dated 09.09.2022 passed by the Punjab & Haryana Page 5 of 7 Downloaded on : Thu Jan 18 20:41:07 IST 2024 NEUTRAL CITATION R/SCR.A/10357/2023 ORDER DATED: 16/01/2024 undefined High Court in the case of Kuldeep Singh vs. Union of India and Others rendered in CWP No.19331 of 2022; (ii) decision dated 29.10.2021 of the coordinate Bench of this Court in the case of Patel Ankurbhai Shapurji vs. State of Gujarat & 2 Others rendered in Special Criminal Application No.9799/2021; (iii) order dated 01.10.2015 passed by the Punjab & Haryana High Court in the case of Daler Singh vs. Union of India and Others rendered in CWP No.12143 of 2015 and (iv) order dated 03.02.2023 passed by Kerala High Court in the case of Akshay Kiran @ Arjun vs. State of Kerala rendered in Crl. M. C. No.662 of 2023 would not be of any assistance to the petitioner as the facts in the said cases were different from the facts of the case on hand as in the present case, the petitioner is already in Canada and in the present case, presence of petitioner - accused is required to be secured by the Investigating Officer and hence, arguments canvassed by the learned APP deserves consideration. The respondent shall have liberty to take appropriate steps to secure the presence of accused as the accused remained absconding.
[8.2] However, if the petitioner is interested to get the VISA then the petitioner shall have to remain present before the Investigating Officer and join the investigation and then he may apply afresh to the concerned Passport Authority to consider his case. Even, if petitioner joins the investigation then, the Police shall have to issue Police Clearance Certificate with specific note about the pendency of criminal case against the petitioner.
[9.0] In view of the above, if the petitioner / accused remains present and joins the investigation then the respondent No.2 is directed to issue the certificate with clarification about the Page 6 of 7 Downloaded on : Thu Jan 18 20:41:07 IST 2024 NEUTRAL CITATION R/SCR.A/10357/2023 ORDER DATED: 16/01/2024 undefined pendency of criminal case against the petitioner and then, the respondent No.4 - Passport Authority shall have to complete the exercise within two weeks from the date on which the petitioner joins the investigation.
[10.0] With the above, this petition is disposed of. Direct service is permitted.
(HASMUKH D. SUTHAR, J.) Ajay Page 7 of 7 Downloaded on : Thu Jan 18 20:41:07 IST 2024