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CR.MA/5047/2008 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 5047 of 2008
In
CRIMINAL
MISC.APPLICATION No. 7013 of 1997
For Approval
and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the criminal
judge ? YES
=========================================================
KRUSHNAKANT
KANTILAL PANCHOLI - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MS
JAYSHREE C BHATT for
Applicant(s) : 1,
MS FALGUNI PATEL ADDL.PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 05/09/2008
ORAL
JUDGMENT
RULE.
Ms.Falguni Patel, learned Additional Public Prosecutor waives the
service of notice of rule for the respondent -State.
Present
petition is filed by the petitioner ? original accused No.2 for
an appropriate order to release the Passport of the petitioner
bearing registration No.A-4217459 and permit the petitioner to
go United State of America to attend her daughter, who according to
the petitioner is not keeping good health.
In
support of ill-health of the daughter, the petitioner has relied
upon one communication produced at Annexure-B.
Ms.Jayshree
Bhat, learned advocate appearing on behalf of the petitioner has
heavily relied upon the decision of the Hon’ble Supreme Court
rendered in Criminal Appeal No.179 of 2008 in the case of Suresh
Nanda Vs. C.B.I. dtd.24/1/2008, reported in 2008 Criminal
Law Journal 1599 in support of her submission that such a
condition directing to surrender the Passport, cannot be imposed,
as the powers to impound the passport are only with the passport
authority.
Ms.Falguni
Patel, learned Additional Public Prosecutor while opposing the
present petition has submitted that as such on the basis of
communication at Annexure-B, the petitioner cannot be permitted to
go to U.S.A. It is submitted that even from the communication at
Annexure-B, it appears that the Doctors are taking care. It is
further submitted that even the wife of the petitioner can also go
to USA to attend the daughter and it is not that the only petitioner
can be helpful to his daughter in U.S.A. It is also further
submitted that the decision of the Hon’ble Supreme Court in the case
of Suresh Nanda (supra) will not be applicable to the facts of the
present case, as in the said case before the Hon’ble Supreme Court,
passport was seized by the C.B.I. during the course of investigation
and in that connection the Hon’ble Supreme Court was considering the
issue whether investigating officer has any power to seize passport
as muddamal or not and considering the facts of the said case, the
Hon’ble Supreme Court in the said decision has observed that the
investigating officer has no authority to seize passport and the
said powers are only vest with the passport authority. It is
submitted that the said decision would not be applicable in a case
where the accused is released on bail on certain conditions and one
of the condition is that the accused shall not leave India and
therefore, the accused has to surrender passport. It is submitted
that the said decision is not with respect to the powers of the
court to impose condition while granting bail. Submitting
accordingly, it is requested to dismiss the present petition.
Heard
the learned advocate appearing on behalf of the respective parties.
At
the outset, it is required to be noted that the next date of hearing
of the trial is 10/11/2008 and the petitioner is released on bail
by the learned Single Judge of this Court in connection with the
complaint being CR No.209 of 1997 for the offences punishable under
secs.467, 468, 419, 120B and 34 of Indian Penal Code and one of the
conditions of the bail order initially was that he shall not leave
Gandhingar District without permission of the trial court except for
the purpose of attending the Court and the said condition
subsequently came to be deleted by the learned Single Judge.
However, the petitioner was directed to deposit passport before the
trial court and accordingly, the petitioner has surrendered the
Passport. Now, therefore, the aforesaid condition is imposed by the
learned Single Judge while releasing the petitioner on bail.
Learned advocate appearing on behalf of the petitioner has heavily
relied upon the decision of the Hon’ble Supreme Court in the case of
Suresh Nanda (supra). However, considering the decision of the
Hon’ble Supreme Court of Suresh Nanda (supra), it appears that the
controversy/issue before the Hon’ble Supreme Court in the said case
was whether investigating officer has any power to seize passport
during the investigation and there was no controversy and/or dispute
before the Hon’ble Supreme Court that whether a competent court
while releasing an accused on bail, has power to impose condition to
deposit passport or not. Considering the provisions of the Passport
Act and Code of Criminal
Procedure, the Hon’ble Supreme Court observed that the
investigating officer has no jurisdiction and/or authority to seize
passport, as seizing of passport would be impounding the Passport
and those powers are only with the Passport Authority. As stated
above, the decision of the Hon’ble Supreme Court in the case of
Suresh Nanda (supra) is not dealing with the powers of the court to
release an accused on one of the condition that the accused shall
not leave India without prior permission and the accused shall
surrender passport with the trial court. Powers of the court to
impose condition of not to leave India and surrender passport,
while releasing accused on bail, are not affected by the aforesaid
decision and the same was not even the issue before the Hon’ble
Supreme Court. The Hon’ble Supreme Court in para 17 of the
aforesaid decision in the case of Suresh Nanda (supra), has made it
clear that the Hon’ble Supreme Court has not decided whether the
Passport can be impounded as a condition for grant of bail or not.
The said decision would not be applicable to the facts of the
present case, as in the present case, the passport is not seized by
the investigating officer, but learned Single Judge of this Court,
while releasing the petitioner on bail, has directed the petitioner
to surrender the passport.
Even
on merits also, no case is made out for releasing the passport of
the petitioner. No supporting medical evidence with respect to the
ailment of the daughter is produced on record. Further the wife of
the petitioner can very well attend her daughter, who according to
the petitioner is sick in USA.
Under
the circumstances, the petition is required to be dismissed. In the
facts and circumstances of the case when the trial is of the year
1997 and next date of trial is 10/11/2008 and even when it is
reported that some of the witnesses have also been examined, the
ends of justice would be met if appropriate directions for early
disposal of the trial are issued.
For
the reasons stated above, the petition deserves to be dismissed and
is accordingly dismissed. Rule is discharged. However, the learned
trial court is directed to conclude the trial within a period of
nine months from the date of receipt of writ of this order and/or
on production of the certified copy of this order.
[M.R.
SHAH, J.]
rafik
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