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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Farha and Ors. – Appellants
Vs.
State of Gujarat – Respondent
Special Criminal Application (Direction) No. 9874 of 2016
Decided On : 05-05-2017
Constitution of India, 1950 – Articles 21 and 227 – Seeking direction or order to declare that upon renewal the passports are to be deposited with the trial court as well as condition No. (3) that pending appeal the petitioners shall not leave India without prior permission of the appellate court imposed vide order passed in Criminal Misc. Application by the court of learned Additional Chief Metropolitan Magistrate be declared erroneous, illegal, unconstitutional and without jurisdiction – Applicant No. 1 got married to one Salim Akhtar Ibrahim Sikora in wedlock applicants Nos. 2 and 3 were born – All the three applicants are holding Indian passports issued by Regional Passport Office husband of the applicant No. 1 is a Zambian National. He is living and working at Pretoria, South Africa. The husband is serving in a company by name Shelv Craft. The husband is residing in South Africa on the "Permanent Resident Permit" issued by Department of Home Affairs, Republic of South Africa – Held, An appeal against acquittal pending in High Court in exercise of its criminal appellate jurisdiction would not entitle the Passport Officer to refuse an application for issue of passport or its renewal – This conclusion is based on the interpretation of words "criminal court" limited to manner they are referred to in Section 6(2)(f) of the Act of 1967, based on the definitions of the said words in statutes para materia, the need for a restrictive interpretation of laws impugning on fundamental rights of citizens, the need to harmonize an otherwise palpable interpretative absurdity arising from a literal and expansive reading of Section 6(2)(f) vis-a-vis Section 6(2)(e) where a convict suffering upto two years of sentence cannot be refused a passport yet despite acquitted in a criminal case for reason of pendency of an appeal there against, the issue of passport can be refused." – Acquittal appeal is no reason for the Trial Court to withhold the passports of the three applicants herein – The acquittal appeal may take a long time before it is disposed of – The delay may cause serious prejudice to the applicants herein – In such circumstances, the impugned order is quashed – Trial Court is directed to handover the passports to the applicants at the earliest – The applicant No. 1, while taking the possession of her passport along with the two passports of her two minor children, shall execute a personal bond of Rs. 1 Lac and shall also furnish correct address of her place of residence at South Africa after getting same attested by Embassy of the South Africa and also attested by the Indian Embassy at South Africa – The applicant No. 1 shall also give an undertaking that she will appear before Sessions Court without fail, in event she is called upon to do so during pendency of acquittal appeal – Directions issued – Application Disposed off. (Paras 26 to 29)
J.B. Pardiwala, J.
1. By this application under Article 227 of the Constitution of India, the applicants have prayed for the following relief's;
"(A) The honourable court be pleased to issue appropriate writ, direction or order to declare that the condition No. (1) that upon renewal the passports are to be deposited with the trial court as well as condition No. (3) that pending appeal the petitioners shall not leave India without prior permission of the appellate court imposed vide order dated 28.03.2016 passed in Criminal Misc. Application No. 218 of 2015 by the court of learned Additional Chief Metropolitan Magistrate, Court No. 17, Ahmedabad be declared erroneous, illegal, unconstitutional and without jurisdiction.
(B) the honourable court be pleased to issue appropriate writ, direction or order to quash and set aside the condition No. (1) and (3) imposed by order dated 28.3.2016 passed in Criminal Misc. Application No. 218 of 2015 by the court of learned Additional Chief Metropolitan Magistrate, Court No. 17, Ahmedabad.
(C) The Honourable Court be pleased to issue appropriate writ, direction or order to quash and set aside the order dated 06.12.2016 passed in Criminal Misc. Application No. 4989 of 2016 by the Additional Sessions Judge, Court No. 2, City Civil and Sessions Court, Ahmedabad as the same being arbitrary, unfair and unjust;
(D) the honourable court be pleased to issue appropriate writ, direction or order to release the passports of the petitioners and hand over to the petitioners their passports retained by the learned Additional Chief Metropolitan Magistrate, Court No. 17, Ahmedabad in Criminal case No. 1250 of 2010 pending Criminal Appeal No. 210 of 2015 in the Sessions Court, Ahmedabad;
(E) pending this petition the honourable court be pleased to direct the learned Additional Chief Metropolitan Magistrate, Court No. 17, Ahmedabad to release the passports of the petitioners and hand over the passports to the petitioners for the purpose of making application to the Embassy of South Africa for Visa;
(F) Pending this petition the honourable court be pleased to grant ex-parte interim or ad-interim relief in terms of paragraph (e) above;
(G) The honourable court be pleased to grant any such other relief as deem fit in the interest of justice."
2. The applicant No. 1 got married to one Salim Akhtar Ibrahim Sikora on 13th May, 2001. In the wedlock, the applicants Nos. 2 and 3 were born. All the three applicants are holding the Indian passports issued by the Regional Passport Office, Ahmedabad. The husband of the applicant No. 1 is a Zambian National. He is living and working at Pretoria, South Africa. The husband is serving in a company by name Shelv Craft. The husband is residing in South Africa on the "Permanent Resident Permit" bearing No. AKA760/13/PRP issued on 11.10.2013 by the Department of Home Affairs, Republic of South Africa.
3. In the year 2003, after the marriage, the applicant No. 1 went to South Africa. For the period between 2004 and 2010, she, along with her two minor children, stayed at South Africa. In the year 2010, the applicant No. 1 applied for renewal of the "Work Permit Visa" of the Republic of South Africa through an agent at South Africa. The Visa was renewed for the period between 31.12.2010 and 31.12.2013. The applicant No. 1, along with her children, came back to India in March, 2011. After their return to South Africa, they were deported to India on the ground that the Work Permit Visa pasted on the passport of the applicant No. 1 was not genuine. On arrival in India, a first information report came to be registered at the Sardarnagar Police Station, Ahmedabad being C.R. No. I-265 of 2011 for the offence punishable under sections 406, 420, 467, 468, 471 of the IPC and section 12 of the Indian Passport Act.
4. At the end of the investigation, charge-sheet was filed and the filing of the charge-sheet culminated in the Criminal Case No. 1250 of 2012. The Criminal Case No. 1250 of 2012 was
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