Jivitesh Syal vs Ut Of Jammu And Kashmir
2021 Latest Caselaw 1025 j&K

                                                                       Sr. No. 08

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                               Crl R 11/2021


                                               Reserved on 26.08.2021.
                                               Pronounced on 03 .09.2021.

Jivitesh Syal                                               ..... petitioner (s)

                                Through :- Mr. Ayushman Kotwal Advocate

                           V/s

UT of Jammu and Kashmir                                    .....Respondent(s)

                                Through :- None

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE


                                 JUDGEMENT

1 This revision petition is filed by the petitioner to challenge order

dated 05.06.2021 whereby the learned 1st Additional Munsiff (Forest)

Judicial Magistrate 1st Class, Jammu has dismissed the application of the

petitioner seeking permission of the Court to permit him to travel abroad

in order to pursue higher studies.

2 Brief facts which are necessary for disposal of this

revision petition are that on 05.10.2020, when the Police party was on

patrolling duty at about 18:30 hours near South Block Bahu Plaza, one

person driving his vehicle bearing Registration No. JK02AX-2454 and

going towards Trikuta Nagar was signaled to stop. The vehicle stopped

and the same was thereafter searched by the police. Upon search, 60/70

grams charas was recovered from the dashboard of the said vehicle.

Accordingly, FIR No. 258/2020 under Sections 8/20/29 NDPS Act came

to be registered with the Police Station, Trikuta Nagar, Jammu against the

petitioner, the occupant of the car. The petitioner was arrested by the

police on spot. He was, however, subsequently released on interim bail by

the learned 1st Additional Munsiff (Forest) Judicial Magistrate 1st Class,

Jammu vide his order dated 07.10.2020 on certain conditions including

that he shall not leave the territorial jurisdiction of UT of Jammu and

Kashmir during bail period. Vide order dated 15.10.2020 passed by the 1st

Additional Munsiff (Forest) Judicial Magistrate 1st Class, Jammu, the

interim order dated 07.10.2020 was made absolute. Thereafter, the

petitioner filed another application before the 1st Additional Munsiff

(Forest) Judicial Magistrate 1st Class, Jammu, seeking permission to travel

abroad to pursue higher studies which application came to be dismissed

by the learned Magistrate vide its order dated 05.06.2021 on the ground

that the petitioner is named as an accused in a case under NDPS Act and

there is high probability that he will evade process of the Court if he is

allowed to travel abroad. It is this order which has been challenged in this

revision petition.

3 Notice in this petition was issued on 01.07.2021 and Mr. Aseem

Sawhney learned AAG, who accepted notice on behalf of the respondents,

was given time to file objections. However, the same have not been filed

so far despite having availed last and final opportunity. While granting last

opportunity, it was made clear that in case the objections are not filed by

the next date of hearing, the matter shall be considered on merits. It is in

that view of the matter, this petition has been considered on merits without

the objections.

4 Learned counsel for the petitioner submits that the petitioner is a

young boy, aged about 20 years who passed his class 12th examination in

the year 2020 securing 86% marks. It is submitted that the petitioner, who

intended to pursue his studies abroad, had applied to various outside

Universities. He claims to have received offer letter from the University of

York, London. It is further submitted that in order to go abroad for studies,

it is necessary to take permission of the Court as the petitioner is involved

in the criminal case and for this purpose, the petitioner approached the

learned Magistrate seeking such permission. However, the permission was

declined by the learned Magistrate. Learned counsel would submit that

the police till date despite passage of considerable period has not filed

charge sheet in the matter. Learned counsel also submits that the petitioner

is ready to give an undertaking to the effect that he will cooperate with the

investigation and will appear before the Police or the Court as and when

required. In case, such permission is not granted, the petitioner will be put

to irreparable loss

5 Heard learned counsel for the petitioner and perused the record.

6. Admittedly, in the instant case, charge sheet has not been filed so

far and there is likelihood that the trial of the case would take some time

even to start. It is pertinent to mention here that the in the present case,

charas weighing 60/70 gms is allegedly recovered from the possession of

the petitioner/accused which, undoubtedly, falls within the definition of

'small quantity' and that way charge against the petitioner cannot be said

to be that serious as would justify putting fetters on his right to pursue

higher studies abroad.

7 In Muhammed Abdul Salam v. The State of Kerala, (Crl.MC. No.

5249 of 2014), the Kerala High Court, while considering similar question,

has held as under:-

"I find that the request of the petitioner to release his passport will have to be properly and judiciously considered by the trial court. In view of the order of this Court in Crl. M.C. No. 1862/2014 permitting the other accused to go abroad, the question of releasing the petitioner's passport can be considered by the trial court, and if it is found that his request is genuine that he is really employed abroad, or that he wants to go abroad can be granted by the trial court. Only the trial court knows how much time will be taken to complete the trial, or whether his physical presence is actually required throughout. Any way, passport can well be released on making reasonable security deposit, and permission to go abroad will have to be granted by the trial court on a consideration of all the circumstances including the time which will be taken for conclusion of trial."

8. In the case of Mustaffa K. and Others v. State of Kerala, Crl.

M.C. No. 394 of 2014 , the High Court of Kerala has held as under:-

"2. The petitioners surrendered their passports and complied with all the conditions imposed. Petitioners Visa Criminal Revision No.: 68/2017 Rakesh Kumar v. State Page no. 8/14 expired on 23.12.2013, 0401.2014 and 19.12.2013 respectively. It is submitted that, if they are not permitted to travel abroad immediately, and allowed them to renew the Visa, they will lose the job and the same will cause irreparable injury and hardship to the petitioners. The petitioners filed C.M.P. No. 3875 of 2013 before the Chief Judicial Magistrate Court, Thalassery seeking permission to travel abroad and allowing them to renew the Visa. Vide order dated 10.12.2013, copy marked as Annexure-B, the court below rejected the permission to travel abroad. For the reasons stated by the petitioners it is become just and necessary to release the passport so that the petitioners can travel abroad and continue his job there. Crl.M.C. is allowed. Annexure-B order is quashed. The petitioners are permitted to go abroad. There will be a direction to the learned Magistrate to release the Crl.M.C. No. 394 of 2014 passport to the petitioners for the purpose of stamping Visa and for travel abroad subject to such conditions imposed by the Chief Judicial Magistrate. Accordingly, the condition No. 5 in the bail order is deleted."

9. The Bombay High Court has also, in Jitsingh Kalirai, Asstt Collr

Of C Ex v. Kulbir Singh Ahuja, 1989 Law Suit (Bom) laid down that

the accused may be permitted to leave the jurisdiction of the court, may be

outside India depending upon the facts and circumstances of each case.

10. It is true that the legal position on the point cannot be put in a strait

jacket and would dependent on case to case basis. Having regard to the

facts and circumstances of this case, I am of the considered opinion that

the petitioner cannot be denied the right to go abroad to pursue studies

only on the ground that he is involved in a criminal case. Looking to the

gravity of charge and the young age of the petitioner and his quest to

acquire quality education, the request made appears to be genuine.

11. In the present case, the petitioner is ready to give an undertaking

that he would come back as and when required by the Police for the

purpose of investigation or when his appearance is required by the learned

Magistrate for the purpose of the trial. In case the petitioner is not

permitted to travel abroad to pursue his studies, the same will cause

irreparable loss to him. However, such permission to the petitioner in

connection with his studies shall be subject to certain conditions.

12 In view of the above, the present revision petition is allowed and the

order impugned is set aside. Subject to the petitioner depositing a security

of Rupees one lac with the 1st Additional Munsiff (Forest) Judicial

Magistrate 1st Class, Jammu, he is permitted to travel to London to pursue

his studies and the contrary condition in the bail order is waived. In this

regard, the petitioner shall file an undertaking before the 1st Additional

Munsiff (Forest) Judicial Magistrate 1st Class, Jammu, giving detail of the

place where he is going to travel for his studies and his contact number

and contact address in order to enable the police or the Court to contact

him as and when required. The petitioner shall also state in the affidavit

that he will be available for investigation, if any, or for trial as and when

required by the police or the Court. He shall also nominate his lawyer to

appear and receive processes on his behalf from the police and the Court.

It is made clear that in case the petitioner makes any default without

reasonable excuse, the police or the trial Court as may be shall be free to

enforce his presence through coercive means. The said affidavit which

shall be filed before the 1st Additional Munsiff (Forest) Judicial Magistrate

1st Class, Jammu would be forwarded along with security amount to the

Court concerned where the challan of this case is filed.

Allowed in aforesaid terms.

Copy of this judgment be sent down.

                                                 (SANJEEV KUMAR)
                                                     JUDGE

Jammu
03 .09.2021
Sanjeev         Whether the order is speaking:       Yes

                Whether the order is reportable:     Yes