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SCA/3638/2011 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3638 of 2011
=========================================================
CHIRAGKUMAR
GIRISHBHAI PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH GOVERNMENT PLEADER & 3 - Respondent(s)
=========================================================
Appearance
:
MR
AMIT N CHAUDHARY for
Petitioner(s) : 1,
MR JANAK RAVAL AGP for Respondent(s) : 1 -
3.
MR PS CHAMPANERI for Respondent(s) :
4,
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 13/04/2011
ORAL ORDER
1. The
petitioner has taken out present petition seeking below mentioned
relief(s):-
“8(A) Your
Lordships may be pleased to issue a writ of certiorari or any other
appropriate writ order or directions and be pleased to direct the
respondent authority to issue a necessary certificate (passport
police certificate) for appear in interview taken by U.S. Embassy as
early as possible.
(B) During the
pendency of final hearing and disposal of the petition, Your
Lordships may be pleased to direct the respondent no.3 to issue a
necessary (police clearance certificate) certificate to petitioner.”
2. It
emerges from the record of the petition that the request of the
petitioner for certificate is not being considered by the concerned
Police Authority. The petitioner alleged that he was orally informed
that since appeal preferred by the State against the judgment and
order dated 21.11.2009 passed by the Presiding Officer and Additional
Sessions Judge, Fast Track Court No.5, Vadodara in Atrocity Case
No.41 of 2007 is pending, his application is not considered. In view
of such oral intimation, the petitioner preferred present petition
seeking aforesaid reliefs.
3. It
appears that somewhere in 2000, a complaint was lodged against the
petitioner under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. Subsequently, the proceedings
by way of Atrocity Case No.41 of 2007 were carried out before the
Court of Competent Jurisdiction and by the judgment and order dated
21.11.2009, the learned Trial Court passed acquittal order in favour
of the petitioner.
4. It,
further, transpires from the record that somewhere in August, 2010 or
thereafter, the State has preferred appeal against the said judgment
and order dated 21.11.2009 and the said appeal is pending.
5. It
also transpires from the record that the daughter and the wife of the
petitioner are residing in U.S.A and the petitioner appears to have
applied for immigration visa. Differently put, it appears that the
petitioner intends to permanently shift and reside in U.S.A. That
appears to be the ground of and reason for objection against the
petitioner’s application. However, that does not mean that the
petitioner should not be conveyed, by the Competent Authority, the
decision regarding his application for necessary certificate. The
authority might be having good number of reasons for granting or
refusing the certificate. However, if there are reasons to not to
grant the certificate, the same should be conveyed to the petitioner.
In present case, the petitioner is aggrieved by the inaction on the
part of the respondent authorities.
6. It
is only by way of reply affidavit in present petition that the
respondent authorities have stated the reason, but any intimation has
not been forwarded to the petitioner officially as of now. In para-7
of the reply affidavit, the respondent authority has stated that “I
state and submit that the wife and daughter of the petitioner is
residing in the United State of America. The petitioner wanted to go
abroad for permanent on immigration visa. Therefore, since the
Criminal Appeal is pending before this Hon’ble Court and till the
said Criminal Appeal is not decided finally by the Hon’ble Court the
Police Clearance Certificate cannot be issued to go abroad.”
7. Learned
advocate for the respondent has relied upon the decision in the case
of Dhiren Baxi, Chartered Accountant Vs. Regional Passport Officer,
Ahmedabad (2003 (1) GLH 1) wherein the grievance made by the
petitioner was against the Passport Authority who
refused to entertain application for passport on the ground
that pendency case against the
acquittal. On the other hand, the petitioner has relied upon
the order dated 25.11.2009 passed in Special Criminal Application
No.1547 of 2009 by the Court (Coram: Mr.Akil A. Kureshi, J.) by order
dated 25.11.2009 directed the Police Authority to grant permission to
the applicant to travel abroad on the conditions mentioned in the
order.
8. It
deserves to be noted that said order was passed in Special Criminal
Application and not in civil proceedings.
9. In
present case, it is not in dispute that the Appeal No.687 of 2010
against the acquittal order dated 21.11.2009 has been filed by the
State and the said appeal is pending in the High Court.
10. In
view of the factual position which emerges from the record the
following order is passed.
10.1 The
Competent Authority shall take necessary decision on or before 20th
April, 2011 regarding the petitioner’s application. The Competent
Authority may take decision independently on its own merits and
without being influenced by any orders. The decision may be taken in
accordance with law and applicable provision and having regard to the
facts of the case. The decision shall be conveyed to the petitioner.
If the petitioner is aggrieved by the decision, it would be open to
the petitioner to take out appropriate proceedings. Besides this, the
remedy to seek permission from the Court where the aforesaid Criminal
Appeal is pending is also available to the petitioner. Present
petition or present order will not stand in the way of the petitioner
for preferring application before the Court to seek appropriate
orders therein.
With
the aforesaid clarifications, observations and directions, the
petition is disposed of. Notice is discharged.
Direct
service is permitted.
(K.M.
Thaker, J.)
rakesh/
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