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1990 Supreme(Guj) 66
Gujarat High Court
Judgename :K.J.Vaidya
SARDARKHAN NIWAZKHAN PATHAN - Appellant
Versus
STATE - Respondent
MISC.CRI.APPLN. 1187 of 1990
Decided On : 06/07/1990
Headnote:Criminal Procedure Code, 1973-Secs. 439 and 482-Accused in sessions offence already on bail-Application to leave jurisdiction of court and country.
Once the accused leaves India and does not voluntarily return, it is indeed difficult if not impossible to secure back his presence for the trial purpose. In such circumstances, it becomes the duty of the Court to find out whether the cause shown in the application is a genuine one or merely a ruse to frustrate the trial or an excuse to abuse liberty either by fleeing from justice and/or indulging in same or similar offences. Accordingly, in order to forestall such eventualities, the Court has to direct itself to determine the issue involved keeping in view following points, namely (i) whether there is any material on the basis of which the prosecuting agency can reasonably allege to the satisfaction of the Court that the permission sought for by the accused for the Haj Pilgrimage (and or any other such reasonable and justifiable purpose to visit any foreign country for a definite and limited period) was merely a ruse or a device to get away from the clutches of trial ? (ii) whether the accused was socially, psychologically and financially rooted deep and uneradicatably enough rendering himself incapable to sever his relationship with his native soil under any circumstances and thereby intrinsically and indirectly leading guarantee and assurance to the judicial conscience regarding securing back his presence to face the trial ? (iii) at what stage either an investigation or trial proceedings were ? (iv) that on consideration of the aforesaid three points, if the Court feels that the accused has made out good case in order to enable him to visit the foreign country for any justifiable ground, the same should not be granted till it performs one more duty, viz. to summon a person or persons who earlier stood surety or sureties when released on bail and be specifically asked whether he or they as the case may be are ready and willing to stand surety or sureties assuring the Court about producing and keeping the accused present before the Court in time after the permission to visit the foreign country is granted. If such surety or sureties are prepared to satisfy the Court to so produce the accused for trial then in that case, the Court may on suitably increasing the bail amount and number of sureties, permit the accused to visit the foreign country.
( 1 ) TWO MATERIAL QUESTIONS arising for our consideration in this Misc. Criminal Application, are :- firstly "whether pending trial before the Court, any accused involved in a serious offence and already released on bail, can as a matter of his right, be permitted to leave the jurisdiction of the Court and a Country even for a limited period to go abroad on any justifiable ground ?" and SECONDLY "whenever be faced with such sort of questions, what ought to be the advisable guiding considerations to be kept in view by the Court on the basis of which it is expected to exercise its judicial discretion to meet with the situation ?"
( 2 ) FEW relevant facts necessary to appreciate and answer the aforesaid two questions are :- that one Sardarkhan Niwazkhan Pathan, the accused herein was one of 23 accused persons who came to be arrested in connection with C. R. No. I-161 of 1989, registered at Chaklashi Police Station for having committed offences under secs. 307, 323, 324, 326, 147, 148, 149 of the I. P. C. and under Secs. 3, 4 and 5 of the Terriorist and Disruptive Activities (Prevention) Act, 1987 (for short hereafter referred to as TADA ).
( 3 ) WHILE in custody, he submitted an application, the same being Misc. Criminal Application No. 870 of 1989 before the learned Sessions Judge, Kaira, at Nadiad, for getting himself released on bail.
( 4 ) ). That the learned Judge after taking a view that Secs. 3, 4 and 5 of TADA were not attracted in the facts and circumstances of the case, by a judgment and order dated 25/12/1989, released the petitioneraccused on bail in sum of Rs. 5000. 00 and a surety of like amount.
( 5 ) ). Thereafter, the petitioner-accused submitted yet one another application, the same being Misc. Criminal Application No. 498 of 1990 before the very learned Judge inter alia seeking permission to allow him to visit Saudi-Arabia for holy HAJ PILGRIMAGE on any just and reasonable terms and conditions the Court deemed it proper to impose. This was opposed by the state and ultimately the learned Judge by a judgment and order dated 2 3/05/1990 dismissed the said application.
( 6 ) HAVING been aggrieved and dissatisfied by the same, the petitioneraccused has moved this Court under Secs. 439 and 482 of the Code of criminal Procedure, 1973, making two-fold prayers, namely - (i) that the impugned judgment and order passed by the learned Judge be quashed and set aside; and (ii) that the necessary permission to leave India for a limited period to go on Haj Pilgrimage may be granted.
( 7 ) MR. S. K. Bukhari, the learned Advocate appearing for the petitioneraccused submitted that the impugned judgment and order rejecting the application of the petitioner-accused (to permit him to go on Haj Pilgrimage) is patently illegal and unjust inasmuch as the discretion exercised by the learned Judge in the matter is arbitrary. Mr. Bukhari further submitted that the petitioner-accused is a deeply religious and old man. He is having a large family, big circle of friends and relatives and is permanent resident of village Narsanda since many years. Not only that, he is also having movable and immovable properties in his village. It was further submitted that but for this offence, otherwise the antecedents of the accused were blotless. In substance, Mr. Bukhari submitted that aforesaid facts and circumstances clearly indicated that the petitioner-accused is firmly rooted, grounded in his native soil of Narsanda, ruling out any conceivable possibility of his not returning to India after his haj Pilgrimage which can frustrate the pending trial proceedings. Mr. Bukhari further submitted that if a starcricketer mr. Navjotsingh Siddu, who also was alleged to have committed an offence under Sec. 307 of the I. P. C. can be permitted to leave India to tour West-Indies for just playing the test-matches, there are no justifiable reasons for his client being denied similar permission to leave India for holy and nobler purpose of going on haj Pil
