IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.H.VORA, J.
Anand P.K. Assistant Director, Director of Enforcement - Appellant
Versus
Afroz Mohammed Hasanfatta - Respondent
R/Criminal Revision Application No. 57 of 2021
Decided On : 05-04-2021
Code of Criminal Procedure, 1973 - Sections 401 and 307 - Indian Penal Code,1860 - Sections 420, 465, 467, 468, 471, 477A and 120B - Cheating and dishonesty – Punishment for forgery - Whether the aforesaid conditions are sufficient to ensure smooth trial and investigation - Criminal Misc. Application by Coordinate Bench of Court, applicant was directed to deposit passport with the lower Court as per condition No.19(c) with reference to offences registered vide I – DCB Police Station, Surat for offences punishable u/s 420, 465, 467, 468, 471, 477A and 120B of Indian Penal Code - private respondent came to be discharged in connection with aforesaid offences being registered as Criminal Case order passed by the Coordinate Bench in Criminal Revision Application private respondent was discharged in connection with Criminal Case - Application for release of the passport in his favour - Vide order learned Sessions Judge changed the custody of passport from Criminal Case - Passport of the private respondent was lying in the custody of Designated Court pending trial of offence under provisions of the PMLA.
Finding of the court : Apprehension as to either fleeing from the country or influencing/tempering with the evidences is misplaced for more than one reasons. Despite, private respondent visited foreign countries on various occasions, as aforesaid, no any condition is breached or any attempt is made to influence/temper with evidence - On each occasion, the private respondent returned back in time and surrender passport and therefore now onwards, if passport is retained subject to rigorous conditions as invoked by Designated Court, no any prejudice is likely to cause the prosecution agency fact there is no near end either to investigation or trial and more particularly - On combined reading of conditions imposed upon private respondent, it transpires Designated Court took all care and caution to secure presence of private respondent at time of trial, to trace accused as and when he goes out of India as he is required to provide complete itinerary and contact details in advance and not to stay continuously for more than three months in foreign countries - Criminal Revision Application declined – Notice discharge.
Result : Ordered Accordingly
ORDER :
1. By way of present Criminal Revision Application filed u/s 307 r/w section 401 of the Code of Criminal Procedure, 1973, the applicant has made following prayer in terms of para 25(A):-
2. Brief facts in nutshell necessary for disposal of present Criminal Revision Application can be stated thus:
3. The private respondent and other deceased persons are facing the accusation of committing offences punishable u/s 3 of the Prevention of Money Laundering Act (for short “PMLA”).
4. Vide order dated 5.3.2015 passed in Criminal Misc. Application No.2191 of 2015 by the Coordinate Bench of this Court, the applicant was directed to deposit passport with the lower Court as per condition No.19(c) with reference to offences registered vide I – C.R. No.16 of 2014 with DCB Police Station, Surat for the offences punishable u/s 420, 465, 467, 468, 471, 477A and 120B of the Indian Penal Code. The private respondent came to be discharged in connection with aforesaid offences being registered as Criminal Case No.62851 of 2014, vide order dated 3.5.2017 passed by the Coordinate Bench in Criminal Revision Application No.264 of 2017. As the private respondent was discharged in connection with Criminal Case No.62851 of 2014, wherein he surrendered passport to the trial Court, he moved an application for release of the passport in his favour. Vide order dated 23.3.2018, the learned Sessions Judge changed the custody of the passport from Criminal Case No.181 of 2017 (Arising out of Criminal Case No.62851 of 2014) to the PMLA Case No.3 of 2014. Since then, the passport of the private respondent was lying in the custody of Designated Court pending trial of offence under the provisions of the PMLA, but pursuant to impugned order, the passport is released in favour of the private respondent. Thus, now, passport is in possession of the private respondent as stated at bar.
5. Just to complete the remaining events that took place during interregnum period till the date of impugned order, it appears that the discharge order passed in Criminal Revision Application No.264 of 2017 in connection with the FIR being I – C.R. No.16 of 2014 registered with DCB Police Station, Surat came to be quashed and set aside by the Hon’ble Apex Court vide order dated 5.2.2019 in SLP (Criminal) No.6068 of 2017. Prior to it, the private respondent was released on bail vide order dated 23.2.2018 passed in SLP (Criminal) No.9528 of 2015 by the Hon’ble Apex Court. Accordingly, the private respondent and other accused were released on regular bail subject to terms and conditions that came to be imposed by the learned trial Court. Vide order dated 26.2.2018, learned Designated Court released the private respondent on bail imposing various conditions amongst one of conditions was not to leave the territory of India without permission of the Court and to deposit the passport before the Investigating Officer within three days.
6. Since the custody of the passport was transferred vide order dated 23.3.2018 passed in Criminal Revision Application No.2804 of 2017 annexed at Annexure C, the private respondent applied for permission before the Designated Court to permit him to go abroad either for pilgrimage, for business trip or for family vacation on various occasions. Pursuant to various such applications, in all nine in number, the private respondent was permitted to travel for a period ranging from 3 days to 3 months subject to certain conditions during the period from March, 2018 to February, 2020. Similarly, the private respondent also moved an application for temporary suspension of condition of regular bail and the conditions of regular bail were relaxed in favour of private respondent during the year 2019 – 2020 for a period ranging from 7 days to 3 months on five occasions to visit foreign countries.
7.
The court held that the risk of flight must be objectively assessed based on the petitioner's conduct and history of compliance, not solely on allegations of economic offences.
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