Suraj Bhan Agarwal vs State Of U.P. And 3 Others
2023 Latest Caselaw 26713 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 
Neutral Citation No. - 2023:AHC:189026
 

 
Court No. - 1
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 7040 of 2023
 

 
Petitioner :- Suraj Bhan Agarwal
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Aditya Gupta,Harsh Vardhan Gupta
 
Counsel for Respondent :- C.S.C.,A.S.G.I.
 

 
Hon'ble Jayant Banerji, J.

1. Heard Shri Aditya Gupta, learned counsel for the petitioner, learned Additional Chief Standing Counsel for the respondent nos.1 and 2, and Shri Pradeep Kumar Maurya, learned Central Government Counsel appearing for the respondent nos.3 and 4.

2. In furtherance to previous order dated 20.9.2023, the learned counsel for the petitioner has filed a rejoinder affidavit which is taken on record.

3. Sri Pradeep Kumar Maurya, learned counsel for the respondent nos. 3 and 4 states that no counter affidavit has been received yet. It is contended by him that the Central Government has anyway no interest to contest the matter as passport has already been issued and, therefore, it is not necessary to file a counter affidavit.

4. This petition has been filed seeking the following reliefs:-

"(i) A writ, order or direction in the nature of certiorari quashing the impugned order dated 03.06.2023 passed by the Additional Chief Judicial Magistrate, Court No.-2, Ghaziabad.

(ii) A writ, order or direction in the nature of mandamus directing the Commissioner of Police, Ghaziabad to release the passport of the petitioner.

(iii) A writ, order or direction in the nature of mandamus directing the Additional Chief Judicial Magistrate, Court No.-2, Ghaziabad to grant permission to the petitioner to travel abroad.

(iv) Any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstance of the case.

(v) Award costs of the writ petition to the petitioner."

5. The petitioner claims to be a senior citizen aged about 87 years, who is stated to be suffering from various medical ailments and wishes to meet his daughter, who is residing abroad, but he cannot do so because of the impugned order of 03.06.2023 passed by the Additional Chief Judicial Magistrate, Court No.2, Ghaziabad.

6. It appears that a first information report was lodged by one Subhash Chand Gupta against the petitioner and others on 11.08.2020 bearing Case Crime No.1064 of 2020 under Sections 420, 467, 468, 471 and 506 IPC, Police Station Vijay Nagar, District Ghaziabad in connection with an incident alleged to have taken place at unknown date and time. The allegation in the FIR is that the petitioner in capacity as President of Adarsh Cooperative Housing Society Limited, Ghaziabad, with an intention to illegally deprive the informant of his share, has allegedly forged a resignation/nomination affidavit in his name. It further alleged that the petitioner alongwith other co-accused have illegally sold the land of the Housing Society to the Director of the T.N.T. Limited. It is stated that the resignation/nomination letter of the informant could not be processed which came to be rejected, and consequently the informant is still a member of the Housing Society. It is stated that the FIR was lodged by the informant against the petitioner levelling false allegations with malicious intentions. It is stated that the petitioner applied for anticipatory bail before this Court by means of Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No.34 of 2021 (Sri Rakesh Kumar Arora & 2 Ors. vs. State of U.P. & 2 Ors.). By an order dated 06.01.2021, a conditional anticipatory bail, till the submission of police report under Section 173(2) Cr.P.C., was granted, and one of the conditions being that the applicants therein shall not leave India without the previous permission of the Court and if they have passports, the same shall be deposited by them before the S.S.P./S.P. concerned. Thereafter, a charge-sheet dated 14.10.2021 was filed by the Investigating Officer against the petitioner and another person under Sections 420, 467, 468, 471, 506 IPC.

7. After the submission of the charge-sheet, cognizance was taken by the Additional Chief Judicial Magistrate, Court No. 2, Ghaziabad on 29.10.2021, and the petitioner was summoned to face trial in Criminal Case No. 18971 of 2021 (State of U.P. vs. Rakesh Kumar and others) which is pending in the court of Additional Chief Judicial Magistrate, Court No. 2, Ghaziabad. It is stated that the petitioner challenged the charge-sheet, summoning order, and the entire criminal proceedings pending before the Magistrate by filing Criminal Misc. Application u/s 482 Cr.P.C. No. 3804 of 2022, in which counter-affidavits were called while granting an interim order restraining coercive action against the petitioner and others in Criminal Case No.18971 of 2021. It is stated that the interim order of 21.04.2022 continues to be in operation. It is stated that in compliance of the conditions imposed in the anticipatory bail order granted to the petitioner by this Court, the petitioner submitted his passport before the SSP Ghaziabad.

8. It is stated that on 24.05.2023, the petitioner filed an application before the Magistrate concerned for the release of his passport and for permission to travel abroad. The aforesaid application of the petitioner was rejected by the impugned order dated 03.06.2023, whereafter the instant petition has been filed.

9. The contention of the learned counsel for the petitioner is that it is the fundamental right of the petitioner to maintain his personal liberty to travel abroad. Merely because a criminal case is pending against the petitioner, it cannot be a ground for rejecting his application to travel abroad, particularly when the proceedings in the criminal case have been challenged by the petitioner before the Court in an application under Section 482 Cr.P.C., wherein an interim order has been granted by the Court. It is submitted that staying of coercive proceedings by the High Court in exercise of jurisdiction under Section 482 Cr. P.C. is reason enough for the Magistrate to proceed to grant permission for travelling abroad. The contention of the learned counsel for the petitioner is that a notification was issued by the Central Government in exercise of powers conferred by clause (a) of Section 22 of the Passports Act, 1967, on 25.08.1993, exempting citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India and who produce orders from the court concerned permitting them to depart from India, from the operation of the provisions of clause (f) of sub-section (2) of Section 6 of the Passports Act, subject to certain conditions enumerated therein.

10. Learned counsel for the petitioner has also relied upon a judgment of the Apex Court passed on 12.01.2022 in Criminal Appeal No. 83 of 2022, (paragraphs 4 and 23) in the case of Deepak Sharma vs. State of Haryana and others1. On the scope of section 482 Cr.P.C., the learned counsel for the petitioner has referred to a judgment of a Division Bench of this Court passed in Application u/s 482 No.3044 of 2017, decided on 23.02.2021 (paragraph 10) in the case of Shueb Mahmood Kidwai @ Bobby vs. State of U.P.2

11. Countering the submissions made by learned counsel for the petitioner, the learned counsel for the respondents have contended that it is admitted to the petitioner that the trial court has not granted bail to the petitioner. It is contended that the petitioner seeks to impugn the order of the Magistrate rejecting his application to travel abroad on the ground and on the strength of the order dated 21.04.2022, passed in Application u/s 482 Cr.P.C. No. 3804 of 2022, as extended from time to time. It is contended that the once the charge-sheet has been filed and cognizance thereof has been taken, and a case has been registered, then, unless a bail is granted by the competent court of the Magistrate imposing certain conditions, the impugned order dated 03.06.2023 passed by the Magistrate is not liable to be interfered with. It is contended that the order passed under Section 482 Cr.P.C. restraining coercive action, does not impose any conditions on the petitioner.

12. A perusal of the record shows that an order dated 06.01.2021 was passed in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No. 34 of 2021, granting anticipatory bail to the petitioner and others, the operative part of which is as under:-

"Without expressing any opinion on the merits of the case and considering the nature of accusation and their antecedents, the applicants are entitled to be released on anticipatory bail for limited period in this case considering the exceptions considered by the Hon'ble Supreme Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.

In the event of arrest, the applicants shall be released on anticipatory bail till the submission of police report, if any, under section 173 (2) Cr.P.C. before the competent Court on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned Court with the following conditions:-

(i) The applicants shall make themselves available for interrogation by the police officer as and when required;

(ii) The applicants shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade from disclosing such facts to the Court or to any police officer;

(iii) The applicants shall not leave India without the previous permission of the Court and if they have passport, the same shall be deposited by them before the S.S.P./S.P. concerned.

(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

(v) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

In default of any of the conditions, the Investigating Officer/Govt. Advocate is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicants.

The Investigating Officer is directed to conclude the investigation, if pending, of the present case in accordance with law, expeditiously, independently without being prejudiced by any observations made by this Court while considering and deciding the present anticipatory bail application of the applicants.

The applicants are directed to produce a copy of this order downloaded from the official website of this Court before the S.S.P./S.P. concerned within ten days from today, if investigation is in progress, who shall ensure the compliance of present order."

13. A charge-sheet dated 14.10.2021 under Section 173 Cr.P.C. was submitted before the court of the Magistrate who took cognizance thereof on 29.10.2021. Apparently, thereafter, summons were issued to the petitioner and others, which led to the filing of the aforementioned Application under Section 482 Cr.P.C. No. 3804 of 2022 by the petitioner and another person in which an interim order dated 21.04.2022 was passed, the operative part of which is as under:-

"Meanwhile, no coercive action shall be taken against the applicants in Criminal Case No. 18971 of 2021, arising out of Case Crime No. 1064 of 2020, Police Station Vijay Nagar, District Ghaziabad."

14. It is stated by the learned counsel for the petitioner that this order has been extended from time to time and continues to be in force.

15. Section 6 of the Passports Act provides for grounds that would authorise the Passport Authority to refuse to make an endorsement for visiting any foreign country or to refuse to issue a passport or travel document for visiting any foreign country. Clause (f) of sub-section (2) of Section 6 of the Passports Act authorises the Passport Authority to refuse a passport or a travel document to the applicant for visiting any foreign country under clause (c) of sub-section (2) of Section 5, where proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India. The aforementioned notification dated 25.08.1993 issued in exercise of powers conferred by clause (a) of Section 22 of the Passports Act provides an exemption to the citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court of India and who produce orders from the court concerned permitting them to depart from India from the operation of the provisions of clause (f) of sub-section (2) of Section 6 of the Passports Act, subject to the conditions enumerated in the notification.

16. On the application filed by the petitioner for the release of his passport and for permission to travel abroad, the Magistrate rejected the same by the impugned order dated 03.06.2023. The operative part of the order of the Magistrate is as follows:-

"माननीय उच्च न्यायालय के आदेश दिनांकित 6-1-2021 के अवलोकन से विदित होता है कि अभियुक्त सूरज भान अग्रवाल (एस. बी. अग्रवाल) की अग्रिम जमानत आरोपपत्र दाखिल करने तक स्वीकृत हुई एवं माननीय उच्च न्यायालय द्वारा अभियुक्त को बिना न्यायालय की अनुमति के विदेश जाने पर रोक लगाते हुए पासपोर्ट जमा कराये जाने हेतु निर्देशित किया गया है। माननीय उच्च न्यायालय के आदेश के अनुपालन में अभियुक्त द्वारा अपने पासपोर्ट को थाने पर जमा कराया गया है। प्रकरण में आरोपपत्र प्रेषित किया जा चुका है, जिसपर न्यायालय द्वारा दिनांक 29-10-2021 को संज्ञान अन्तर्गत धारा 420/467/468/471/506 भा. दं. सं. में लिया जा चुका है। अभियुक्त की अग्रिम जमानत आरोपपत्र प्रेषित करने तक थी। आरोपपत्र दाखिल होने के पश्चात अभियुक्त द्वारा जमानत नहीं करायी गयी है। माननीय उच्च न्यायालय के आदेश दिनांकित 21-4-2022 के द्वारा प्रकरण में अभियुक्त के विरूद्ध उत्पीडक कार्यवाही न किये जाने का आदेश पत्रावली पर दाखिल है। यह भी उल्लेखनीय है कि माननीय उच्चतम न्यायालय के दिशा निर्देश के दृष्टिगत छः माह के अन्दर की स्पीकिंग स्टे आर्डर पत्रावली पर दाखिल नही किया गया है। पत्रावली में अभियुक्तगण की उपस्थिति न होने के कारण अभी तक आरोप विरचित नही किया जा सका है। अभियुक्त के सम्बन्ध में बिना न्यायालय की अनुमति के भारत छोडने पर रोक एवं पासपोर्ट जमा करने का आदेश विषयक शर्ते माननीय उच्च न्यायालय द्वारा लगायी गयी है। अभियोजन अधिकारी द्वारा प्रार्थनापत्र पर घोर आपत्ति की गयी है।

अतः समस्त तथ्यों के दृष्टिगत प्रार्थनापत्र स्वीकार किये जाने योग्य नही है।

आदेश

अभियुक्त सूरज भान अग्रवाल (एस. बी. अग्रवाल) की ओर से पासपोर्ट रिलीज कराने एवं विदेश यात्रा की अनुमति हेतु प्रस्तुत आवेदन दिनांकित 24-5-2023 निरस्त किया जाता है।"

17. Therefore, the Magistrate has noticed that the anticipatory bail of the accused was only till filing of the charge sheet. After the charge sheet was filed, the accused have not obtained bail. By the order of the High Court dated 21.4.2022, no coercive action has been directed to be taken against the accused. It was noted by the Magistrate that due to the absence of the accused, till date, the charges have not been framed. Accordingly, the application of the petitioner was rejected.

18. The scope of powers of the High Court under Section 482 Cr.P.C. have been considered on numerous occasions by the Supreme Court starting from the case of R.P. Kapur Vs. State of Punjab3 upto Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra4 and needs no elaboration. Suffice to state that consideration of bail application and grant of bail are within the jurisdiction of the competent courts before which such applications are presented. It is for the such courts to look into record of the case and if it appears to them that the applicants are entitled to bail, the bail is granted subject to such conditions as the courts may provide.

19. What is being contended on behalf of the petitioner is that even though the petitioner has not been enlarged on bail, yet on the strength of interim order granted by this Court in a petition under Section 482 Cr.P.C., the petitioner is entitled to be granted permission to leave the country for specific period and he is entitled to possession of his passport. It is stated that the petitioner is an extremely old person, who wishes to meet his daughter who resides abroad.

20. As noted by the Magistrate in the impugned order dated 03.06.2023, in view of the non-appearance of the petitioner/accused, the charges are yet to be framed. In the interest of justice which mandates expeditious trial, the personal interest of the petitioner has to give way to the larger public interest. No doubt, where a trial is pending and the accused has been enlarged on bail, subject to fulfilment of certain conditions and judicious discretion of the concerned courts, the accused can be permitted to travel abroad. However, in the present case, as noted above, neither has the accused-petitioner obtained bail nor is he appearing before the trial court, due to which even charges have not been framed.

21. Under the circumstances, interference under Article 227 of the Constitution of India is declined.

22. The judgment in the case of Shueb Mahmood Kidwai (supra) relied upon by the learned counsel for the petitioner has considered the scope of powers of the High Court under Section 482 Cr.P.C., which in the present set of circumstances, is of no assistance to the petitioner.

23. In the other judgments relied upon by the learned counsel for the petitioner, namely that of Deepak Sharma (supra), in the opinion of the Supreme Court, the question in the criminal appeal was whether the appellant can be denied his fundamental right of personal liberty to travel abroad, subject to possession of a valid passport, visa and other requisite travel documents, only because he is arrayed as accused in a complaint filed by his brother's wife against his brother being the husband of the complainant and his parents, particularly mother and that too when the allegations in the complaint did not disclose any criminal offence on the part of the appellant. The Supreme Court answered the question in negative.

24. A perusal of the judgment reveals that the Supreme Court considered the material allegations in the FIR and noted that in the entire complaint, there is no specific complaint against the appellant. It was held by the Supreme Court that the complaint against the applicant prima facie do not disclose any offence under Section 498A of the Indian Penal Code. After noticing various other facts, the Supreme Court held that the Chief Judicial Magistrate as well as the High Court erred in directing the applicant not to leave the country without prior permission of the court. It was noted by the Supreme Court that the High Court had not considered the allegations against the appellant and that there is not even prima facie finding with regard to the liability, if any, of the appellant to the complainant.

25. In the present case, the order impugned dated 3.6.2023 passed by the Magistrate has been considered in exercise of supervisory jurisdiction, by which order the Magistrate has refused to permit the petitioner to travel abroad. Under challenge in the proceedings under Section 482 Cr.P.C before this Court are the charge sheet, summoning order and entire criminal proceedings. Only the Bench before which the petition under Section 482 Cr.P.C. would come up for consideration, may go into nature of the allegation made and the facts and circumstances of the case.

26. Be that as it may, the Magistrate has valid grounds to refuse permission, which are echoed in his reasons.

27. This petition, is, therefore, dismissed.

Date : 03.10.2023

SK/sfa

(Jayant Banerji, J)