IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR MODIFICATION OF ORDERS) NO. 9264 of 2014
FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE S.G.SHAH
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
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 ?
5 Whether it is to be circulated to the civil judge ?
PREMJI KARSAN RAJANI & 2….Applicant(s)
STATE OF GUJARAT….Respondent(s)
MR JAYESH A DAVE, ADVOCATE for the Applicant(s) No. 1 – 3 MR BY MANKAD, ADVOCATE for the Respondent(s) No. 1 MS JD JHAVERI, APP for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 04/08/2014
Rule. Service of rule is waived by Ms.
Jhaveri, Ld. APP and Mr. Mankad, Ld. Advocate for respondent – State and the complainant respectively.
2 The petitioners are original accused with reference to Gadhshisha Police Station C.R. No. II-3007 of 2014, which is lodged by the complainant on 15/4/2014 alleging that the petitioners have given threat to kill him. Thereby offences under sections 504, 506 and 114 of the Indian Penal Code [IPC] was registered against the present petitioners and they were arrested by the investigating agency on the same day and released on bail on furnishing personal bond and solvent surety of Rs.25,000/-, by order dated 16/4/2014 by the Judicial Magistrate First Class, Mandvi, Kutch on condition that they should not leave territory of India without prior permission of the Court and they should surrender their passports before the Court within three days. The petitioners were also directed to remain present before the Court during the trial.
3 Considering the condition to surrender passports as a harsh, the petitioners have filed an application being Criminal Misc. Application No. 143/2014 before the Sessions Court at Bhuj on 21/4/2014 contending that in fact, the FIR in question has been filed as a counter blast against the FIR filed by the present petitioner no. 2 on 12/4/2014 against the present complainant under sections 143, 323, 504, 506, 427 of the IPC before the same Gadhshisha Police Station, which is registered as C.R. No. I- 17/2014, for which the present complainant was arrested on 15/4/2014 and, therefore, on the date of such arrest, with the help of the police, the complainant has lodged such false complaint wherein there is no other evidence except bare words of the complainant that present petitioners have threatened him to kill.
4 It is further submitted that when the petitioner no. 2 herein has filed complaint, as aforesaid, against said Meghji Karsan Vekaria, since the petitioners are residing at Nairobi, Kenya [South Africa], such false complaint was filed immediately on his arrest, for which the petitioners were also arrested immediately and intention of the complainant was clear that if the petitioners are restrained from returning to Kenya, then and then they will compromise or may not press the complaint against him, which is under section 323 of the IPC i.e., resulting into injuries to respondent no. 2 herein.
5 It is further submitted that in fact the dispute is pertaining to the encroachment of the property owned by the present petitioners since both of them are neighbours and since the petitioners are not available in India forever, the complainant herein has encroached their property and when present petitioners objected such encroachment and illegal construction, the complainant has entered into quarrel with the petitioners and beaten the petitioner no. 2, namely, Tejbai Premji Rajani. In her complaint, she has disclosed the names of six persons as accused, which include present complainant Meghji Karsan Vekaria. Therefore, prima-facie there is substance in the version of the petitioners before the Sessions Court while praying for modification of the condition regarding surrender of passports and leaving Indian territory without prior permission of the Court.
6 The petitioners have produced copies of both the FIRs on record. Perusal of both the FIRs confirms the above story and surprisingly it confirms the incident alleged by both the sides and thereby presence of present complainant Meghji Karsan Vekaria at the place of the incident is practically admitted by him. It is also clear from the complaint being FIR registered at C.R. No. II – 3007/2014 against present petitioners that for the incident of 10/4/2014, such complaint was filed only on 15/4/2014 i.e., after arrest of the complainant with reference to the FIR lodged by the present petitioner no. 2 being C.R. No. I-17/2014 dated 12/4/2014. Therefore, prima-facie it becomes clear that the complaint against present petitioners is nothing but counter blast of complaint filed by petitioner no. 2. More disturbing or serious position is to the effect that only allegations under sections 504 and 506 are made, for which there cannot be any evidence except bare words of the complainant and any eye witness. It is clear that if the accused of the complaint by the petitioner no. 2 are eye witnesses for the complaint against the petitioners, then at least incident narrated by the present petitioner no. 2 in her complaint before three days, practically have some substance and in that case, the present complainant has no escape if the complaint by the petitioner no. 2 with her injuries are proved. Therefore, there is a calculated steps taken by the present complainant to file such complaint under sections 504 and 506 of the IPC after five days so as to see that the petitioners could not travel to South Africa for their livelihood and thereby they are supposed to let go their grievance or compromise with their rights. However, the Sessions Court has, by impugned judgment and order dated 13/5/2014, dismissed the application observing that when the trial Court has imposed such condition, applicants should approach the trial Court for such modification.
7 The petitioners have narrated all material and factual details in their petition including some citations and provision of law applicable to such proceedings and situation. Since the complainant on his own appeared before the Court and sought permission to file Vakalatnama and affidavit-in-reply, in the interest of justice, he was so permitted. On perusal of the affidavit-in-reply filed by the complainant, it becomes clear that the complainant is taking disadvantage of procedural law and wants to harass the petitioners by not allowing them to travel to Kenya, where they are permanently residing for their livelihood; when it is stated on oath by a litigant that whether allegations made in the complaint are true or false, is not to be seen as it is not issue before this Court and more particularly when it is stated that the petitioners, who are foreigners, have no right to ask for concession from the Court of India after committing offence in India against Indian citizen.
8 It is further stated that if the condition is deleted, the petitioners would definitely escape to their country and would never come back and, therefore, trial against them would not be completed and would linger for long time. Unfortunately, the complainant has gone in saying to the extent that, while opposing bail application before the trial Court, he has objected to release the petitioners on bail, stating that the petitioners are head strong persons and if they would be released, they would certainly kill him. Unfortunately there is contradiction in the submission and apprehension by the complainant in as-muchas on one hand he is apprehending injuries from the petitioners and on other hand he is opposing to allow the petitioners to leave India, which would relieve him from first apprehension. Similarly, there is contradictory version by the complainant so far as citizenship of the petitioners is concerned; at every stage it is stated that the petitioners are foreigners and would escape outside India if the passports are released; whereas in para. 5 of the affidavit-in-reply, it is stated that the petitioner nos. 1 and 3 are citizens of Kenya and petitioner no. 2 is Indian citizen, but she is residing with petitioner no. 1 being his wife. Though every citizen has right to agitate his legitimate complaint and to see that culprits are punished, surprisingly when the complaint is only under sections 504 and 506 , which is simple threat and can be alleged by any one at any point of time, however, if person against whom there is allegation of such threat is going away from the place of the incident and from the reach of the complainant, apprehension of the complainant does not survive and, therefore, when such complainant is resisting the prayer of the petitioners for releasing their passports, it becomes clear that he is taking disadvantage of procedural law and judicial process.
9 As against such submission and stand of the original complainant, the petitioners are relying upon the decision rendered in the case of Akankshaben Bhanubhai Patel v. State of Gujarat reported in 2005  GLH 568, wherein this High Court has upheld the order of the Sessions Court modifying the condition regarding surrendering of passport against xerox copy of the passport when accused in that case wants to go to Kuwait because of his job in that country. While confirming such order, the High Court has imposed a condition to deposit Rs.3 lacs by the accused with an observation that in case accused fails to appears before the Court, the trial Court may pass the order to forfeit such amount and if the accused remains present, then on completion of the trial, the amount is to be refunded back to the accused and till then it should be invested in the FDR to avoid loss of interest. There are some other conditions regarding disclosure of address of the accused before the trial Court.
10 The petitioners are also relying upon the judgment of this High Court rendered in the case of Hasmukhlal Kalidas Choksi v. State of Gujarat reported in 2006  GLR 2529 wherein all conditions except statutory conditions are ordered to be deleted by the High Court including condition regarding traveling beyond India and surrendering of passport, after referring six decisions of different High Courts.
11 Whereas the respondent has relied upon the judgment rendered in the case of Krushnakant Kantilal Pancholi v. State of Gujarat reported in 2009  GLR 368 wherein also relying upon the decision of the Hon’ble Apex Court in the case of Suresh Nanda v. CBI reported in 2008 Criminal Law Journal 1599, this High Court has refused to release the passport in favour of the accused so as to enable him to visit U.S.A to attend her daughter who was not keeping good health. However, on scrutiny of such judgment, it becomes clear that issue before the Hon’ble Court in the case under reference was whether Investigating Officer [IO] has any power to seize passport during the investigation or that whether a competent Court, while releasing the accused on bail, has power to impose condition to deposit passport. The Hon’ble Apex Court has observed that the IO has no jurisdiction, but the Court has. Whereas, so far as the case on hand is concerned, this High Court has considered that when the petitioner before it, has not produced supporting medical evidence with respect to the ailment of his daughter and when wife of the petitioner was there in U.S.A with his daughter, no case is made out for releasing the passport. Therefore, both, on law point and factual aspect, this citation does not help the complainant so as to restrain the petitioners to get appropriate relief in their favour. In all such cases, the recent judgment of the Hon’ble Apex Court in the case of Arnesh Kumar v. State of Bihar reported in 2014  G.L.H. 547 needs to be recollected to realize the necessity to arrest any accused.
12 So far as the present controversy is concerned, the fact becomes clear that at present the petitioner no. 2 is also a complainant and, therefore, if she does not remain present to depose against the present complainant, then her complaint could not be proved and hence it could not be believed that she will not remain present to prove her complaint. So far as the reason for releasing passports is concerned, it is undisputed fact that all the petitioners are residing at Nairobi and they have to return for their livelihood. It cannot be ignored that the dispute is of trivial nature in as much as there was a quarrel for construction of wall between the properties of both the sides. Besides, one more aspect needs to be considered i.e., provision of section 205 of the Criminal Procedure Code [Cr. P.C.] which permits the Court to dispense with the personal presence of the accused even at the time of trial. Therefore, grievance of the complainant that in absence of the petitioners, trial would hamper, has no merit. In that case, at the most the petitioners have to appoint a pleader who can appear before the Court on each date of hearing in their absence and may answer the query of the Court that may be otherwise permitted under the law, more particularly when there is no question of identity of any of the party. Needless to say that the pleader appointed as such, may even answer plea also that whether accused admits the guilt or would like to proceed with the trial and when there is no question of identity, even trial can proceed further in absence of the petitioners – accused. At the most, the Magistrate is empowered to call upon the accused as and when and if so require and necessary and in that case, concerned pleader has to manage to call upon the accused.
13 In view of the above facts and circumstances, there is substance in the application so as to interfere with the impugned orders passed by both the Courts below i.e., order of bail dated 16/4/2014 passed by the Judicial Magistrate First Class, wherein conditions were imposed restraining the petitioners to travel beyond India and to surrender the passport and order dated 13/5/2014 passed by the 2nd Addl. Sessions Judge, Kutch at Bhuj in Criminal Misc. Application No. 143/2014 rejecting the prayer of the petitioners to modify such condition and directed them to approach to the trial Court for the purpose.
14 Therefore, the application needs to be allowed. However, with certain directions and conditions in the following manner :
A The condition in the impugned order dated 16/4/2014 regarding surrendering of passports and restraining the petitioners from traveling outside India, is suspended in the following manner : I At any point of time, out of three petitioners, any one of the petitioners, shall remain available before the trial Court on the date of actual hearing.
II Out of three petitioners, the passports of remaining two petitioners shall be released by the trial Court with permission to travel beyond India after passing an order under section 205 of the Cr. P.C., for the purpose, such petitioners shall file an application before the trial Court disclosing the name of the pleader who will remain present on behalf of such petitioners before the trial Court on actual date of hearing.
III The petitioners, who want to travel outside India by getting their passports back, shall deposit Rs.1 lac [Rupees one lac only] each before the trial Court, which shall be invested in FDR and shall be refunded to such petitioners on completion of the trial. Till then, such amount shall be invested in FDR so as to avoid loss of interest.
IV In addition to above conditions, initially all the petitioners are permitted to visit Kenya for 30 days, but thereafter, any one of the petitioners shall remain present for active trial before the trial Court.
V Considering the typical facts and circumstances of the case, the trial Court is directed to decide the application under section 205 of the Cr. P.C., within 7 [seven] days from the date of its filing and to complete the trial within 90 days without fail. For the purpose, after framing the charge, the trial Court shall list the matter for day-to-day hearing and shall not grant unnecessary adjournments to any party. For the purpose, both the parties are directed to keep their witnesses present on the fixed date, without fail.
In the result, application is partly allowed in above terms. Rule is made absolute to the aforesaid extent. Direct service today is permitted.