George Mathew v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 27[TH] DAY OF FEBRUARY 2023 / 8TH PHALGUNA, 1944 ``` ``` CRL.MC NO. 1258 OF 2023 ``` ``` CRIME NO.817/2022 OF MANNANTHALA POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONER/ACCUSED:`** ``` GEORGE MATHEW, AGED 50 YEARS, S/O T.GEORGE, PULICKATHARAYIL HOUSE, PRAKKANAM P.O., ELANTHOOR, PATHANAMTHITTA DISTRICT, PIN – 689645 ``` ``` BY ADVS. SRI.SAMPATH V. TOMS SRI.AMBROSE JUDE DCRUZ ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2STATION HOUSE OFFICER, MANNANTHALA POLICE STATION, THIRUVANANTHAPURAM, PIN – 695015 ``` ``` BY ADV PUBLIC PROSECUTOR SRI.G.SUDHEER, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.02.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.1258 of 2023 2 ## **K.BABU, J** . -------------------------------------- ## Crl.M.C.No.1258 of 2023 --------------------------------------- ## Dated this the 27[th] day of February, 2023 ## **O R D E R** This is an application filed under Section 482 of the Code of Criminal Procedure. The prayers in this Crl.M.C. are as follows:- “(i) Issue an Order directing the release and return of the passport of the petitioner bearing No.Z5306462, which was surrendered at Mannanthala Police Station, Thiruvananthapuram. (ii)Issue an Order permitting the petitioner to travel to Dubai, UAE, to re-join his work as Sales Manager at Integrated Gulf Biosystems, Dubai, for such period and on such conditions as deemed fit by this Hon’ble Court; and (iii) Grant such other reliefs which are deemed fit and appropriate in the circumstances of the case.” 2. The petitioner is the sole accused in Crime No.817/2022 of Mannanthala Police Station, Thiruvananthapuram. He is alleged to have committed offences punishable under Sections 323, 376 (2)(n), 377, 427, 447 and 506(i) of IPC. As per Annexure-3 order dated 23.12.2022 in B.A.No.9864/2022, this Court granted anticipatory bail to the petitioner on the following conditions:- “(a) Petitioner shall surrender before the Investigating Officer on 03.01.2023 from 9 a.m. to 6 p.m. and shall subject himself to interrogation Crl.M.C.No.1258 of 2023 3 for four days thereafter i.e., on 04.01.2023, 05.01.2023 and on 06.01.2023 . (b) If after interrogation, the Investigating Officer proposes to arrest the petitioner, then, he shall be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum before the Investigating Officer. (c) Petitioner shall appear before the Investigating Officer as and when required and shall co-operate with the investigation. (d) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the defacto complainant or her family members; (e) Petitioner shall not commit any similar offences while he is on bail. (f) Petitioner shall not leave India without the permission of the Court having jurisdiction.” 3. The petitioner filed an application as CMP No.56 of 2023 before the Jurisdictional Magistrate, seeking permission to leave India. The learned Magistrate dismissed the application. The relevant portion of the order dismissing the application is extracted below:- “8. On perusal of records, I am satisfied that investigation is in its preliminary stage and while granting bail to accused, the Hon’ble High Court of Kerala has specifically stated a condition that accused shall appear before the investigating officer as and when required and shall co-operate with the investigation. Here in this case, learned Assistant Public Prosecutor submitted that interrogation of accused is required in this case in coming days for further investigation of the case. Hence if accused is given permission to leave India, it will affect the investigation and the presence of accused cannot be procured by investigating officer as and when required by him for the Crl.M.C.No.1258 of 2023 4 purpose of investigation. Hence I am of the view that this petition cannot be considered at this stage.” 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioner submitted that the investigation in the case is almost in the final stage, and therefore, the presence of the petitioner is not required in connection with the investigation. 6. The learned Public Prosecutor opposed the plea of the petitioner to leave India on the ground that the investigation is only in the preliminary stage. 7. The petitioner is now on bail. The question of custodial interrogation of the petitioner does not arise in the matter. 8. The petitioner is presently employed as Sales Manager of Integrated Gulf Biosystems, Dubai, UAE. He joined the service of the firm only on 17.11.2022, as is evident from the affidavit sworn to by him. With effect from 18.12.2022, the petitioner has been staying at Thiruvananthapuram. 9. It is submitted that the petitioner is under Crl.M.C.No.1258 of 2023 5 immediate threat of termination from his employment due to his absence of work. According to the petitioner, it is most imperative that he may be permitted to travel to Dubai to join his employment and to avoid termination of his employment in the firm. No material has been brought before this Court by the prosecution to establish that his continuous presence in India is required for the progress of the investigation. This Court is of the view that the progress of further investigation in the matter could be facilitated even in the absence of the petitioner. The petitioner has made an undertaking by way of an affidavit that he is prepared to appear before the Investigating Officer as and when required. The Apex Court has considered the rights of an accused to travel abroad, in some of the decisions relied on by the petitioner. In **Barun Chandra Thakur v. Ryan Augustine Pinto [2019 (4) KLT OnLine 3239 (SC)]** , the Apex Court observed thus:- “9. ….. There could be no gainsaying to that the right to travel abroad is a valuable one and an integral part of the right to personal liberty. Equally, however, the pre-condition of securing prior permission before travelling abroad is a crucial ingredient which undoubtedly was engrafted as a condition for the grant of anticipatory-bail in this case. ……. At best, the condition for seeking permission before travelling abroad could have been regulated, not Crl.M.C.No.1258 of 2023 6 deleted altogether.” 10. In **Pitam Pradhan v. State of A.P. [2014(2) KLT OnLine 1214 (SC)]** , the Apex Court permitted the petitioner therein to travel abroad noting that his job required him to travel abroad and may lose his employment, if he were not permitted to travel abroad. In **Parvez Noordin Lokhandwalla** **v. State of Maharashtra [2020 (5) KLT OnLine 1170 (SC)]** , ## the Apex Court held thus:- “21. …...The lodging of an FIR should not in the facts of the present case be a bar on the travel of the appellant to the US for eight weeks to attend to the business of revalidating his Green Card. The conditions which a court imposes for the grant of bail - in this case temporary bail – have to balance the public interest in the enforcement of criminal justice with the rights of the accused. The human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure a fair trial. The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing the conditions. The nature of the risk which is posed by the grant of permission as sought in this case must be carefully evaluated in each case.” 11. On consideration of the entire circumstances brought on record, I am of the view that the petitioner is to be given permission to travel abroad for joining his job for a limited period. 12. As per the direction in Annexure 1 order, the petitioner had surrendered his passport before the SHO Crl.M.C.No.1258 of 2023 7 concerned. 13. The petitioner is permitted to leave India to join his employment in UAE and to remain there for a period of six months. 14. The petitioner shall execute a bond for Rs.5,00,000/- (Rupees Five Lakhs only) with two solvent sureties for the like sum to the satisfaction of the Jurisdictional Magistrate to ensure his return from the foreign country. 15. The petitioner shall return to India on expiry of the period during which he is permitted to remain in the foreign country and report before the Jurisdictional Magistrate. The petitioner shall appear before the Investigating officer as and when required. 16. The passport surrendered by the petitioner shall be returned to him. The investigating officer shall give sufficient prior notice to the petitioner, if a requirement for his presence is made. The Crl.M.C. is disposed of as above. Sd/- **K.BABU JUDGE** VPK Crl.M.C.No.1258 of 2023 8 ## **`APPENDIX OF CRL.MC 1258/2023`** ## `PETITIONER ANNEXURES` |`Annexure1`|`A TRUE COPY OF THE ORDER DT.`| |---|---| ||`15.12.2022 OF THE HON'BLE HIGH COURT`| ||`OF KERALA IN B. A. NO: 9864 OF 2022`| |`Annexure2`|`A TRUE COPY OF THE INVENTORY MAHAZAR`| ||`PREPARED BY THE STATION HOUSE OFFICER,`| ||`MANNANTHALA POLICE STATION,`| ||`THIRUVANANTHAPURAM DT. 18.12.2022`| |`Annexure3`|`A TRUE COPY OF THE ORDER DT.`| ||`23.12.2022 OF THE HON'BLE HIGH COURT`| ||`OF KERALA IN B. A. NO: 9864 OF 2022`| |`Annexure4`|`A TRUE COPY OF THE NON-DATED CMP NO:`| ||`56/2023 IN CRIME NO: 817/2022 OF`| ||`MANNANTHALA POLICE STATION FILED`| ||`BEFORE THE JUDICIAL FIRST CLASS`| ||`MAGISTRATE COURT - V,`| ||`THIRUVANANTHAPURAM`| |`Annexure5`|`A TRUE COPY OF THE ORDER DT.`| ||`18.01.2023 OF THE JUDICIAL FIRST CLASS`| ||`MAGISTRATE COURT - V,`| ||`THIRUVANANTHAPURAM, IN CMP NO: 56/2023`| ||`IN CRIME NO: 817/2022 OF MANNANTHALA`| ||`POLICE STATION`| |`Annexure6`|`A TRUE COPY OF THE UNITED ARAB`| ||`EMIRATES RESIDENCE VISA OF THE`| ||`PETITIONER ISSUED ON 18.11.2022`| |`Annexure7`|`A TRUE COPY OF THE LETTER DT.`| ||`07.02.2023, ISSUED FROM THE HUMAN`| ||`RESOURCES DEPARTMENT, INTEGRATED GULF`| ||`BIOSYSTEMS, DUBAI TO THE PETITIONER`| |`Annexure8`|`A TRUE COPY OF THE FINAL BILL ISSUED`| ||`FROM HOTEL PATTOM ROYAL TO THE`| 9 Crl.M.C.No.1258 of 2023 ``` PETITIONER FOR THE PERIOD OF STAY FROM 18.12.2022 TO 29.12.2022 ``` ``` Annexure9A TRUE COPY OF THE ESTIMATE BILL ISSUED FROM HOTEL PRASANTH TO THE PETITIONER FOR THE PERIOD OF STAY FROM 29.12.2022 TO 09.02.2023 ```