KBP 1 cr.wp.3452-10.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3452 OF 2010 Kaivalya Harsukh Rawal ..Petitioner Vs State of Maharashtra ..Respondent -- Mr.N.B.Sawant, for petitioner. Ms.A.S.Pai, APP for respondent State. -- CORAM : A.M.KHANWILKAR & R.G.KETKAR, JJ. DATE : 25 th NOVEMBER, 2011 P.C.: Heard learned counsel for the parties. 2] The principal relief claimed in this petition is to quash the F.I.R. bearing No.407 of 2008 dated 3 rd August, 2008 registered for the offences punishable under Sections 465, 468, 471, 420, 34 of Indian Penal Code and Section 12(1)(b) of the Passport Act in which, the petitioner has been shown as one of the accused. Besides quashing KBP 2 cr.wp.3452-10.odt of F.I.R., the petitioner is requesting for incidental relief of quashing of look out circular issued against him and for appropriate directions against the respondents in that behalf. 3] The prosecution case in the F.I.R. is that the accused persons including the petitioner before this Court falsely represented that the old passport was damaged and gave false and wrong address for securing fresh passport in the name of Smt.Panchfula Dnyanoba Somwanshi. 4] It is alleged that accused no.1 submitted an application to the Passport Office, Mumbai giving incorrect information and on that basis, fresh Passport as also American Visa were obtained with the help of accused no.2 and accused no.3 and the petitioner before this Court. The allegation is that the accused persons facilitated the said lady to cheat the Passport Authority and Immigration Authority and travelled on 1 st March, 2008 from Mumbai to Chicago and helped her to illegally enter Chicago. 5] It is noticed that on the basis of the impugned F.I.R., KBP 3 cr.wp.3452-10.odt Investigating Officer proceeded in the matter and after completion of investigation, he has filed Charge Sheet before the concerned Court. The petitioner has been named as accused in the said Charge Sheet on the basis of material collected during the investigation which indicates his complicity in the commission of the offence. It is well established position that when the petitioner approaches the Court for quashing of F.I.R., it is open to the Investigating Officer to rely on all other material besides the contents of the F.I.R., which may point finger to the involvement or complicity of the petitioner before the Court. In the present case, on perusal of the F.I.R., there is clear allegation about involvement of the petitioner in the commission of offence. Therefore, the question of quashing of F.I.R. does not arise. Besides, it is noticed that the Investigating Officer has already collected material to indicate the complicity of the petitioner, which is already part of the Charge Sheet before the concerned Court. Thus, this is not a case where, there is no evidence at all to indicate the involvement of the petitioner. The fact that during the relevant period, the petitioner was staying abroad and never visited India in the said period will be of no avail. KBP 4 cr.wp.3452-10.odt 6] Learned counsel for the petitioner tried to persuade us to quash the F.I.R. because the investigation proceeded without obtaining prior sanction under Section 15 of the Passport Act. Even if that contention is to be accepted, that would not take the matter any further for the petitioner who has approached this Court for quashing the F.I.R. As aforesaid, even if the abovesaid contention of the petitioner is to be accepted as it is, the prosecution against the petitioner for the offence under the provisions of the Passport Act may become questionable, but not the other offences under the Indian Penal Code referred to above. The petitioner nevertheless will have to face the prosecution. 7] Taking overall view of the matter, therefore, it is not possible to interfere by invoking writ jurisdiction to quash the F.I.R. in question. Since the Charge Sheet has already been filed before the appropriate Court, it is open to the petitioner to approach that Court and take recourse to remedy of discharge, if so advised. 8] As a matter of fact, until the petitioner submits to the jurisdiction of the Court, the question of hearing the petitioner on KBP 5 cr.wp.3452-10.odt merits of the case does not arise. 9] The apprehension of the petitioner is that as soon as he lands in India, he would be arrested from the Airport Authority itself on the basis of the look out notices. It does not mean that the petitioner will be denied the opportunity to pursue his legal remedies before the concerned Court. The petitioner would be free to apply for discharge to the Court of competent jurisdiction. 10] Learned counsel for the petitioner submits that, at least, to facilitate the petitioner to appear before the Court of competent jurisdiction, some interim protection be granted so that the petitioner, within the specified time, would appear before the concerned Court and submit to the jurisdiction of that Court. He submits that the petitioner would surrender before that Court on reaching India and apply for bail as well as discharge. We have no difficulty in acceding to this limited relief claimed by the petitioner. Even though this petition is being dismissed on merits, we direct that the concerned Authorities shall not take any coercive action against the petitioner for a period of four weeks from today to enable the petitioner to appear KBP 6 cr.wp.3452-10.odt before the concerned Criminal Court i.e.22 nd Metropolitan Magistrate's Court, Andheri in Criminal Case No.2656 of 2009 within such time and apply for bail subject to satisfying that Court that he deserves to be released on bail in the fact situation of the case. If such bail application is filed by the petitioner, the same shall be decided expeditiously. The petitioner would be free to surrender before the concerned Court while moving said bail application. All questions regarding the bail application as well as proposed discharge application are left open, which shall be decided on merits. 11] Accordingly, petition is dismissed with the above observations. [R.G.KETKAR, J.] [A.M.KHANWILKAR, J.]