Delhi High Court
Directorate Of Revenue ... vs Dr. Bernd Augustine on 9 February, 2017
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment dated: 9th February, 2017
+ CRL.M.C. 4861/2016 & CRL.M.A.20173/2016, 20175/2016, 147/2017
DIRECTORATE OF REVENUE INTELLIGENCE ..... Petitioner
Through: Mr.Amish Aggarwala, Adv. with
Mr.Satish Aggarwala, Adv.
versus
DR.BERND AUGUSTINE ..... Respondent
Through: Mr.Kirti Uppal, Sr. Adv. with Mr.Santosh
Chaurihaa, Mr.Meraj A Khan,
Mr.Ashutosh Dubey and Mr.Harsh
Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE I.S.MEHTA
I.S.MEHTA, J (ORAL)
1. This is a petition under Section 482 Cr.P.C challenging the impugned
orders dated 20th December, 2016 and 21st December, 2016 passed by
learned CMM, New Delhi in case title "DRI versus Dr.Bernd Augustine".
2. It is submitted by learned counsel for the petitioner that the impugned
order dated 20th December, 2016 granting permission to the respondent to
travel Germany and impugned order dated 21st December, 2016 releasing
passport to the respondent is bad in law. He has further submitted that
there is apprehension that the respondent will not return India to face trial.
He has further submitted that to meet the ends of justice, the impugned
orders be set aside.
3. Learned counsel for the respondent has vehemently opposed the
contention of learned counsel for the petitioner and submitted that the
present petition confines to the subject of allowing the respondent going
abroad. He has further submitted that on 09.12.2016 the respondent
moved an application seeking permission to travel to his native country
i.e. Germany and the respondent was granted permission to go abroad
vide order dated 20.12.2016 subject to deposit of Rs.15 lacs by way of
demand draft/bankers cheque/FDR. He has further submitted that on
21.12.2016, the respondent furnished demand draft for a sum of
Rs.15,00,000/- and the learned CMM, New Delhi directed the petitioner
department to release passport of the respondent on that day itself.
4. Impugned order dated 20th December, 2016 passed by learned CMM,
New Delhi is reproduced as under:
"DRI Vs. Dr. Bernd Augustin
20.12.2016
Present: Ld. SPP for DRI.
Ld. Counsel for accused Dr. Bernd Augustin
Accused is present.
DRI has filed reply to the application
whereby the accused Dr. Bernd Augustin had sought
permission to travel to Germany coupled with the
response to the certificate furnished yesterday.
Heard.
Ld. Counsel for DRI submits that antique
articles were recovered from the possession of
accused. Investigation is underway. She further
submits that articles recovered from him - 8 articles
were found to be antique. She therefore, strongly
opposes this application moved by applicant / accused
to travel back to Germany.
Percontra, Ld. Counsel for accused submits that
accused has a deep root in the society and he can also
produce the bills of the recovered articles. He had
stated everything to DRI - thee is no requirement for
his remaining in India for the purposes of
investigation. It is further submitted that accused is an
Indophile having deep knowledge about the history
and culture of this country. He has come to this
country many a times. The articles recovered were
purchased from the market in ordinary course. It is
further submitted that the accused shall abide with the
directions imposed by this court.
On behalf of accused reliance is also placed on the
Consular Certificate issued by Mr. Frank Thierfelder,
German Counsellor and Consul and filed on
19.12.2016.
Considered.
The Consular Certificate reads as under:
"Dr. Bernd Augustin, S/o. Oskar Hermann, R/o.
Schone Aussicht 9, 22085 Hamburg / Germany, is a
German Citizen and is residing at the above said
address with his family.
That the Embassy has come to know that Dr.
Bernd Augustin has been involved in DRI/HQ-
G1/338/XIV/ENQ-II/INT-NIL/2016.
The Embassy hereby affirms that Dr. Bernd
Augustin can be allowed to travel to his native place
for the time period which this Honorable Court may
kindly be please to allow.
That any summons / notice if issued for his
appearance will be executed and complied with the
directions by the competent authority and will be
complied with by directions by the competent
authority and will be complied with by the ful co-
operation from the affirming authority by all course of
action to secure the appearance by Dr. Bernd
Augustin.
That Dr. Bernd Augustin has assured that he will
comply any direction passed by this Honourable
Court as well as by the Embassy of the Federal
Republic of Germany if allowed to travel to his native
Country. Dr. Bernd Augustin also assured that he will
be present whenever the Honourable Court/competent
authority orders him to do so.
He also assured that he may be issued any notice
through email ID [email protected] and he will
duly comply with the same."
The reading of the said undertaking/ certificate
lends credence to the version of the accused. I do not
have any reason to disbelieve the said certificate. To
my mind when Sovereign Countries certify to
undertake there has to be strong circumstances to
refuse such request/ undertaking.
Dehors the aforesaid let me now revert back to the
bail order.
Bail order was passed in this case by the
department itself treating the offence to be a bailable
one. Now if that is so, once bail order is passed u/s
436 Cr.P.C. in that situation there cannot be any
condition imposed - restricting the liberty to move out
of the country inasmuch as it is not an order passed
u/s 437 Cr.P.C. That also needs to be borne in mind.
Taking into account the submissions made by the
parties, permission to travel abroad is granted to the
accused Dr. Bernd Augustin subject to deposit of Rs.
15 lacs which shall be deposited in Court by way of
an FDR.
Ld. Counsel for the accused submits that it would
be difficult to make an FDR and as such permission
be granted to deposit the same by way of demand
draft.
Heard.
Accused/ applicant is directed to deposit the
said amount by way of DD/ Bankers Cheque/ FDR in
the name of the Court.
Accused is granted permission to travel to
Germany for two months and he would return back to
India on or before 28.02.2017. In the eventuality of
default this amount shall be forfeited.
File shall now be taken up upon compliance.
(Sumit Dass)
CMM/PHC/New Delhi
20.12.2016"
5. What is emerging on record is that the respondent sought permission to go
abroad. Mr. Frank Thierfelder, German Counsellor and Consul filed a
certificate on 19.12.2016 affirming the plea of the respondent that he is a
citizen of Germany and his presence can be secured. The respondent was
granted permission to go abroad vide order dated 20.12.2016 subject to
deposit of Rs.15,00,000/- by way of demand draft/bankers cheque/FDR.
In compliance of order dated 20.12.2016, the respondent furnished
demand draft for a sum of Rs.15,00,000/- which was accepted by the
learned CMM, New Delhi on 21.12.2016. To my mind, Mr. Frank
Thierfelder, German Counsellor and Consul is the appropriate guarantor
in the present facts of the case, who can assure the presence of
respondent. Therefore, I find no infirmity in the impugned orders passed
by the Court below.
6. Resultantly, the present petition is dismissed and disposed of accordingly.
All pending application(s) (if any) also stand disposed of.
7. Trial Court Record be sent back.
Copy of this order be given dasti.
.
I.S. MEHTA
(JUDGE)
FEBRUARY 9, 2017/radhika
