## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN**
**FRIDAY, THE 23RD DAY OF MAY 2014/2ND JYAISHTA, 1936**
## **Crl.MC.No. 2742 of 2014 ()**
**--------------------------CRL.MP. NO.3941/2013 OF SESSIONS COURT, THALASSERY. CR. NO. 930/2009 OF KANNUR TOWN POLICE STATION. ........**
**PETITIONER/11TH ACCUSED:**
**-------------------------------------------**
**FAHAD, AGED 21 YEARS, S/O.MUSTHAFA, P.P. HOUSE, KANNUR POST, KANNUR DISTRICT.**
**BY ADVS.SRI.SUNIL NAIR PALAKKAT, SRI.K.N.ABHILASH.**
## **RESPONDENTS/STATE & COMPLAINANT:**
**--------------------------------------------------------------**
**1. STATION HOUSE OFFICER, KANNUR TOWN POLICE STATION, KANNUR DISTRICT-670 001.**
## **2. STATE OF KERALA,**
- **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.**
**BY PUBLIC PROSECUTOR SMT.S. HYMA.**
**THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23-05-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**rs.**
## **Crl.MC.No. 2742 of 2014**
## **APPENDIX**
## **PETITIONER'S ANNEXURES:-**
**ANNEXURE-A1: THE TRUE COPY OF THE ORDER DATED 24/07/2013 IN BA NO.5098/13 OF THIS HON'BLE COURT. ANNEXURE-A2: THE TRUE COPY OF THE ORDER DATED 26.11.2013 IN CRL.M.C.5149/2013 OF THIS HON'BLE COURT. ANNEXURE-A3: THE CERTIFIED COPY OF THE ORDER DATED 11/12/2013 IN CRL.M.P.3941/13 IN CRIME NO.930/09 OF THE COURT OF SESSIONS THALASSERY. ANNEXURE-A4: A TRUE COPY OF THE LETTER DATED 02/05/2014 ISSUED BY MASOUD ABEDI PRESIDENT OF THE DAR OPTICS.**
## **RESPONDENT'S ANNEXURES:NIL.**
**//TRUE COPY//**
## **P.A. TO JUDGE**
**rs.**
## **K. Ramakrishnan, J. ============================== Crl.M.C.No.2742 of 2014**
## **============================== Dated this, the 23[rd] day of May, 2014.**
## **O R D E R**
This is an application filed by the petitioner who is the 11[th] accused in Crime No.930/09 of Kannur Town Police Station to set aside the order passed in Annexure 3 and for release the passport under Section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that he is the 11[th] accused in Crime No.930/09 of Kannur Town Police Station alleging offence under Section 395 of Indian Penal Code. It is also alleged in the petition that though he filed an application for anticipatory bail before this court, this court has dismissed the application directing the petitioner to surrender and move for regular bail. Accordingly, he surrendered before the Judicial First Class Magistrate Court, No-I, Kannur and moved for regular bail and the learned magistrate has granted bail with conditions inter alia to surrender his passport as a condition for releasing him on bail and accordingly, he surrendered his passport. Now, the investigation of the case is
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over and after investigation, final report was filed and the case was committed to Sessions Court. The petitioner filed Crl.M.P.No.3941/13 before the Sessions Court for releasing his passport. But, that was dismissed by the learned Sessions Judge by Annexure A3 order. Aggrieved by the same, the present petition has been filed seeking the following relief:
_“i) To quash the Annexure A3 order dated 11/12/13 in Crl.M.P.3941/11 in Crime No.930/09 of the Court of Sessions Thalassery._
_ii) Direct the Assistant Sessions Court Thalassery to release the passport of the petitioner.”_
3. The Counsel for the petitioner submitted that he has not committed any offence and he was working abroad since long time and on account of this condition, he could not go back and continue his employment. Now, an offer has come from the employer to come and join the employment for which purpose, the passport is to be returned to him. Though the case was committed and taken cognizance, no summons has been issued to the accused person. Further, it is not known as to how much time it will take for the completion of the trial as well. So, under the circumstances, he wants the interference of this court for release of the passport.
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4. On the other hand, the application was opposed by the Public Prosecutor on the ground that since he was absconding during the course of investigation, as condition for granting bail, the learned magistrate has directed the petitioner to surrender the passport and if it released to him, he is likely to abscond again and his presence could not be procured for the purpose of trial. So, according to the Public Prosecutor, the order passed by the Sessions Judge is perfectly legal.
5. It is an admitted fact that the petitioner was arrayed as 11[th] accused in Crime No.930/09 of Kannur Town Police Station and after investigation, final report was filed before the Judicial First Class Magistrate Court, No-I, Kannur and the learned magistrate has taken cognizance of that case as C.P.14/13. It is also an admitted fact that the present petitioner had moved this court for anticipatory bail and this court has by Annexure A1 order dismissed the petition with liberty for the petitioner to surrender and move for regular bail and according to the petitioner, he surrendered before the Judicial First Class Magistrate Court, No-I, Kannur and the learned magistrate has granted bail with condition to surrender
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his passport before that court and accordingly he had surrendered the passport. The petitioner had filed Crl.M.C.No.5149/13 before this court seeking a direction to the Sessions Court to consider his application for release of the passport and that was disposed of by Annexure A2 order directing the Sessions Judge to consider and pass appropriate orders in that application within one month from the date of filing of the application. Accordingly, the petitioner filed Crl.M.P.No.3941/13 before the Sessions Court, Thalassery for this purpose and the learned Sessions Judge by Annexure A3 impugned order, dismissed the application. Aggrieved by the same, he had filed this petition.
6. The learned magistrate had directed the petitioner to surrender the passport to ensure his presence during the committal proceedings and also for availability of the petitioner during the trial as well. It is also seen from the order of the Sessions Judge that the case has been committed to the Sessions Court and now pending before Additional Assistant Sessions Court, Thalassery for trial. The case number was not mentioned in the order. The Counsel for the petitioner submitted that though the Sessions Court has taken
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cognizance of the case and made over the same to Additional Sessions Court for disposal, no summons has been issued to the accused persons in that case. So, it is not known as to how much time it will take for the court to dispose of the case.
Merely because the petitioner has become accused in a case is not a ground to deny his possibility of his employment abroad. He cannot be ask to wait in India till the disposal of the case as well especially when one cannot now anticipate how much time it will take for the court to dispose of the case which will depend upon the pendency of the cases and work load in that court.
7. Further, in the decision reported in the decision reported in **Asok Kumar v. State of Kerala [2009 (2) KLT 712],** this court has held that even in a case where criminal proceedings are pending against an accused person and his passport has been surrendered, then, he can be permitted to go abroad for a particular period on certain conditions to be imposed for that purpose and for that purpose, the passport also can be temporarily released to him.
8 **.** Further, once the visa expired unless it is renewed, the possibility for the petitioner to go abroad in future also will
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be affected. For that purpose also the passport will have to be released for a temporary period. In this case, he has produced a document to show that he has got an opportunity to work in a foreign concern as a salesman for a period of three years, for which purpose, he will have to go abroad and join employment and for that purpose, he will have to get his passport to endorse the visa and go abroad for that purpose. So, under the circumstances, this court feels that the petition can be disposed of by giving s direction to the Additional Assistant Sessions Court, Thalassery where the case is now pending to consider and dispose of the application filed by the petitioner for permission to go abroad and release the passport for that purpose for a temporary period can be considered and pass appropriate orders in view of the dictum laid down in the decision reported in Asok Kumar (Supra). So, the petition is disposed of as follows:
Untrammeled by the order passed by the Sessions Judge in Annexure A3, if the petitioner files an application before the Additional Assistant Sessions Court, Thalassery, where the case is now pending as made over for disposal, for release the passport for a temporary period with permission to go abroad stating the reason for the same, then, the learned Additional
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Assistant Sessions Judge is directed to consider and dispose of that application imposing such conditions as it may think necessary to impose taking the directions given in **Asok Kumar v. State of Kerala [2009 (2) KLT 712]** within one month from the date of filing of the application. The learned Additional Assistant Sessions Judge is also directed to consider the application if any filed by the petitioner, for that purpose after taking the case on file and pass appropriate in that application as well.
9. With the above direction and observation, the petition is disposed of.
Office is directed to communicate this order to the concerned court immediately and also hand over a copy of the order to the Counsel for the petitioner to enabling him to produce the same before the concerned court.
Sd/-
## **K.Ramakrishnan, Judge.**
Bb
_[True copy]_
_P.A to Judge_
