Abdul Faris P. v. State of Kerala and Deputy Superintendent of Police, Kondotty

Crl.M.C.No.4621/2022 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 2[ND] DAY OF AUGUST 2022 / 11TH SRAVANA, 1944_ ## _CRL.MC NO. 4621 OF 2022_ ## _PETITIONER/PETITIONER/ACCUSED NO.53:_ _ABDUL FARIS P., AGED 29 YEARS, S/O.ABDUL MOIDHEEN KOYA, POOVILLERI HOUSE, ELIKKODE, ADIVARAM P.O, KOZHIKODE, PIN – 673 586._ _BY ADVS. T.H.ARAVIND YEDU KRISHNAN R._ ## _RESPONDENT/S:_ _1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031._ _2 THE DEPUTY SUPERINTENDENT OF POLICE KONDOTTY IN KARIPPUR POLICE STATION, KOZHIKODE, PIN – 673 638._ _SRI.C.S.HRITHWIK-SR.PUBLIC PROSECUTOR_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.4621/2022 2 ## **O R D E R** The petitioner is the 53[rd] accused in Crime No.175 of 2021 of Karippur Police Station. The aforesaid crime was registered alleging offences punishable under Sections 112, 216(A), 399, 402 read with Section 120B IPC. 2. The allegation against the petitioner is that on 21.06.2021 at 2.30 hours, he along with other accused persons arrived at Karippur International Airport in separate cars with the intention to commit dacoity of gold which was being transported from abroad and thus attempted to commit robbery. The petitioner was arrested in connection with the said case on 01.11.2021. Later, as per the Annexure-A1 order, the petitioner was released on bail as he became entitled to statutory bail because of failure on the part of the investigation agency in filing the final report. In Annexure-A1 order, the bail was granted subject to certain conditions, which included the surrender of his passport within seven days of his release from jail. The aforesaid order was passed on 01.01.2022, and upon compliance with the condition mentioned therein, the petitioner was released on bail. Subsequently, the petitioner submitted Crl.M.P.No.602 of 2022, Crl.M.C.No.4621/2022 3 stating that he has a visa to go to UAE, which is valid till 07.11.2023 and he wants to go abroad in connection with his business. The aforesaid application was dismissed as per Annexure-A2 order, which is dated 02.03.2022. This Crl.M.C. is filed challenging the aforesaid order. 3. Heard Sri.M.Revikrishnan, learned counsel for the petitioner and Sri.Hrithwik, learned Public Prosecutor for the State. 4. The learned counsel for the petitioner contends that the petitioner was granted statutory bail as early as on 01.01.2022 and one of the conditions was to appear before the Investigating Officer on all Mondays for a period of three months. The petitioner had complied with the said condition and the period specified in the said order is already over. Now it has been about seven months since the petitioner is released on bail. Even now, the investigation has not been completed and the final report is not submitted. Therefore, it is pointed out that there is no purpose in keeping the petitioner in the Country without granting permission to go abroad so as to pursue his avocation. The learned counsel for the petitioner places reliance upon the observations made by this Court in **Muhammed** Crl.M.C.No.4621/2022 4 **Rafeek v. Union of India [2011 (3) KLT 117]** , wherein this Court observed about the matters to be considered for directing to surrender the passport or for the release of the passport which is already surrendered. It is also brought to my notice that the 34[th] accused in this case has already been granted permission to go abroad as per order dated 13.04.2022 in Crl.M.P.No.1528 of 2022 for a period of three months, subject to certain conditions. 5. In such circumstances, the learned counsel prays for setting aside the Annexure-A2 order. On the other hand, the learned Public Prosecutor would oppose the aforesaid prayer. It is pointed out that considering the serious nature of the allegations, prayer cannot be allowed. It is contended that the petitioner is part of a gold smuggling racket. Therefore, if the petitioner is allowed to go abroad, there is every chance he is getting involved in similar other crimes, and there are chances of him escaping from the clutches of law. In such circumstances, dismissal of this petition is sought. 6. I have carefully gone through the records. It is evident therefrom that the case was registered in the year 2021, and the petitioner, along with some of the accused, was arrested Crl.M.C.No.4621/2022 5 on 01.11.2021. The statutory bail was granted on 01.01.2022, and as of now, about seven months have elapsed, but even now, no final report has been submitted. The learned counsel for the petitioner brought my attention to the Annexure-3 document, which indicates that he has a valid visa till 11.07.2023. In the said document, he was referred to as a partner of an establishment, and it would suggest that he has a business concern in UAE, which is being legally managed. Therefore, the fact that the petitioner is perusing an avocation abroad is evident from the said document. Section 6(2) (f) of the Passports Act, contemplates a prohibition on issuing passports to persons against whom criminal proceedings are pending. It is a well settled position of law that a criminal proceeding can be treated as pending before a court, only when a final report has been submitted. Therefore, since no final report has been submitted in this case, the petitioner is not subject to any statutory restriction to go abroad. 7. Therefore, the only impediment before the petitioner to go abroad, is the condition imposed by the court while granting bail. When considering the aforesaid aspect, the fact that even after the expiry of about ten months of registration of Crl.M.C.No.4621/2022 6 the crime, no final report has been submitted is a relevant aspect. The allegations raised against the petitioner are indeed serious in nature. In **Muhammed Rafeek’s case (supra)** this Court has observed about the matters to be considered while dealing with the question of release of a passport which is already surrendered or while imposing conditions for the surrender of passport. The relevant observations are as follows: “12. But the criminal courts have to take extreme care in imposing such condition. It cannot mechanically, and in every case where an accused has a passport impose a condition for its surrender. Law presumes an accused to be innocent till he is declared guilty. As a presumably innocent person he is entitled to all the fundamental rights guaranteed to him under the Constitution. At the same time, interest of the society has also to be protected. The court has to strike a balance between personal liberty of the accused guaranteed under Article 21of the Constitution, investigation rights of the police and the interest of the society. The criminal court has to consider possibility of the accused if released on bail, fleeing justice and thereby thwarting the course of justice which affects the majesty of the law, as also the individual rights of the accused. The court has to consider antecedents of the person accused or suspected of commission of the offence, nature of the offence he is said to have committed, Crl.M.C.No.4621/2022 7 necessity for his presence for investigation, duration of investigation and such other relevant factors. The court has to decide whether notwithstanding the personal liberty of the accused, interest of justice required that his right of movement should be restricted during the pendency of the case by directing him to surrender his passport. If necessary, it is open to the criminal court direct the accused to execute bond in case he has to go abroad for any purpose, for appropriate amount with sureties undertaking to appear before the Investigating Officer or court as the case may be as and when required to do so. These are though not Crl.M.C. No.1734 of 2011 exhaustive, some of the matters to be borne in mind by the court while deciding whether there should be a condition to surrender the passport or when there is a request to release the passport already surrendered in court.” 8. When the aforesaid principles are considered and applied to the facts of the case, I find some force in the contention put forward by the learned counsel for the petitioner, even if it is accepted that the allegations against the petitioner are serious in nature. Whatever be the nature of the allegations, the fact remains that, as of now, no final report has been submitted. The petitioner has been released on bail about seven months ago and has been complying with all the conditions Crl.M.C.No.4621/2022 8 imposed by the learned Magistrate in the bail order. Therefore, denying the opportunity to pursue his avocation abroad any further would cause serious prejudice to him and would also infringe his right to go abroad, which is a constitutional right available to him. Therefore, I am of the view that the order passed by the learned Magistrate declining the prayer sought by the petitioner to release his passport has to be interfered with. However, the same shall be subject to some condition to ensure his presence before the court as and when required. While taking this view, I have also taken note of the fact that one of the accused is already granted the aforesaid opportunity by the trial court concerned. 9. In the result, this Crl.M.C. is allowed, and the Annexure-A2 order is set aside. The learned Magistrate is directed to release the petitioner's passport subject to the following conditions. (1) Petitioner shall deposit an amount of Rs.1,00,000/(Rupees one lakh only), Judicial First Class Magistrate Court-I, Manjeri, which shall be refunded to the petitioner upon he surrenders his passport after the period stipulated by this Court. (2) Petitioner shall execute a bond for Rs.2,00,000/(Rupees two lakhs only) with two solvent sureties each 9 Crl.M.C.No.4621/2022 for the like sum to the satisfaction of the learned Magistrate (3) Release of the passport and permission to go abroad shall be for a period of six months from the date of its release. On or before the expiry of the said period, the passport shall be surrendered before the learned Magistrate. (4) Petitioner shall furnish attested copies of the travel documents, including his visa, contact address abroad, email, WhatsApp number etc. (5) He shall undertake that he will appear before the court as and when required. Upon compliance with the aforesaid conditions, condition No.6 in the Annexure-A1 order shall be deleted, subject to the conditions in this order. Sd/- ## **ZIYAD RAHMAN A.A.** **JUDGE** DG/4.8.22 Crl.M.C.No.4621/2022 10 ## _APPENDIX OF CRL.MC 4621/2022_ _PETITIONER ANNEXURES_ _Annexure A1 THE TRUE COPY OF THE ORDER DATED 01.01.2022 PASSED BY JUDICIAL FIRST CLASS MAGISTRATE - I, MANJERI IN CRIMINAL MISCELLANEOUS PETITION NO. 8/2022_ _Annexure A2 THE TRUE COPY OF THE ORDER DATED 02.04.2022 PASSED BY JUDICIAL FIRST CLASS MAGISTRATE-I, MANJERI_ _Annexure A3 THE TRUE COPY OF THE VISA ISSUED TO THE PETITIONER_