1 cr-wp-367-11 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. WRIT PETITION NO. 367 OF 2011 Dwarkanath Nair ] Age 62 years, Occ: Business ] Residing at 603-604, Green Acres, ] Lokhandwala Complex, Andheri (E) ] Mumbai ]..Petitioner Vs. 1 The Central Bureau of Investigation ] Bank, Securities and Fraud Cell, ] Hind House, Ballard Estate, ] N.M.Marg, Mumbai-400 038 ] ] 2 The State of Maharashtra ]..Respondents .... Mr. P.R. Namjoshi Advocate i/b Pankaj Purway and Mr. Vivek Gore Advocate for Petitioner Mrs. M.H. Mhatre APP for the Respondent No.2-State Mr. D.N. Salvi Advocate for Respondent 1-C.B.I. .... CORAM : P.V.HARDAS AND M.N.GILANI, JJ. DATED : MARCH 23, 2011 ORAL JUDGMENT [PER P.V.HARDAS,J. ] 1 Rule. Rule made returnable forthwith. With the consent of the learned Counsel for the parties this petition is heard finally at the stage of admission. 2 cr-wp-367-11 2 By this petition under Article 226 of the Constitution of India the petitioner prays for issuance of appropriate writ directing respondent 1 to hand over passport to the petitioner in order to enable the petitioner to travel abroad. 3 It appears that on the basis of investigation which was carried out by the Central Bureau of Investigation, charge sheet came to be presented before the Special Judge under the Prevention of Corruption Act. It further appears that writ petitions came to be filed in this Court in which it was averred that the petitioners were not public servants and therefore, they could not be tried. The learned Single Judge of this Court in Criminal Writ Petition No. 2400 of 2008 and other connected petitions, by order dated 13th July, 2009 allowed the petition and held that cognizance could not be taken against the petitioners therein in respect of the offence under the Act of 1988. The learned Single Judge therefore directed the Special Judge to pass appropriate orders in that behalf. It appears that the Central Bureau of Investigation being aggrieved by the aforesaid judgment has filed Special Leave Petition which is said to be pending in the Supreme Court. 4 It further appears that in the light of the aforesaid judgment, the 3 cr-wp-367-11 petitioner is seeking return of his passport which had been seized. The learned Counsel for the Central Bureau of Investigation in the light of the said judgment, does not seriously oppose the prayer for return of the passport. However, the learned Counsel for the Central Bureau of Investigation insists that certain conditions be imposed in order to ensure that the petitioner is available for trial in the event the Supreme Court allows the appeal of the Central Bureau of Investigation. 5 Taking into consideration the fact that the presence of the petitioner during the trial is of a paramount importance, we allow this petition and direct the respondents to return the passport of the petitioner on condition that the petitioner shall deposit in this Court an amount of Rs. 2 lakhs and shall also submit the itinerary of his programme along with addresses and telephone numbers of his contact persons. 6 The petitioner shall obtain permission from this Court before traveling abroad. The petitioner shall also in addition to the above conditions submit a written undertaking to hand over the passport to the Central Bureau of Investigation in the event the Central Bureau of Investigation calls upon the petitioner to do so. 7 This writ petition is therefore allowed to the extent indicated 4 cr-wp-367-11 above. Rule is therefore made absolute on the above terms with no order as to costs. [ M.N.GILANI, J. ] [ P.V.HARDAS, J. ]