IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1796 OF 2008. Mr.Jatin R. Mehta. ..Petitioner. versus Central Bureau of Investigation/ACU-II and Another. ..Respondents. .... Mr.A.Y. Shakhare, Senior Counsel with P.M. Havnoor, for the Petitioner. Mr.H.V. Mehta with Mr. Mandar Goswami, for the Respondent No.1. Mr.J.P.Yagnik, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 10th September 2008. : 10th September 2008. : 10th September 2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. On 5th September 2008 and 9th September 2008, this petition was finally heard at the stage of admission. 2. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. : 2 : 3. The petitioner claims to be the Chairman-cum-Managing Director of Su-Raj Diamonds and Jwellery Limited. In connection with an offence registered bearing C.R.No.RC AC 2/2008, the CBI/ACU-II searched the offices of the said company and the residence of the petitioner and certain documents and articles including mobile phones, compact disks and laptops were seized. The CBI also seized five bound copies of passports of the petitioner renewed from time to time on the same day. 4. By order dated 28th July 2008, the learned Special Judge designated for CBI directed the Investigating Authority to return the passport of the petitioner. However, the petitioner was directed to file an undertaking that he will not leave India without obtaining prior permission of the Court. Accordingly, an undertaking was filed by the petitioner and the same was accepted. On 1st August 2008, the petitioner filed an application seeking permission of the learned Judge for travelling abroad for a limited period of one month from 9th August 2008 to 7th September 2008. The said : 3 : application was opposed by the learned counsel appearing for the respondent. By Judgment and Order dated 7th August 2008, the learned Special Judge rejected the application by observing that the respondent-CBI has requested the External Affairs Ministry to request the Passport Authorities to impound the passport of the petitioner. The learned Judge rejected the application by observing that the issue regarding impounding the passport was left open for consideration of the Appropriate Authority. The learned Judge however clarified that the rejection was not on the merits of the case and the rejection was only for avoiding the interference within the jurisdiction of the competent authority. 5. The learned Senior counsel appearing for the petitioner submitted that the jurisdiction to grant permission to travel abroad vested in the learned Sessions Judge and therefore, the fact that an application has been moved for impounding the passport was totally irrelevant. He placed reliance on a decision dated 8th August 1996 of the leaned Single : 4 : Judge of this Court in the case of Deepak Chabaria v/s Union of India and another in writ petition no.1002/1996. He also placed reliance on a decision of the another learned Single Judge of this Court in the case of Shyam Dwarkadas Chabira v/s Regional Passport Officer and another [2000 (Supp.) Bom.C.R. 705]. He also placed reliance on a decision of the Gujrat High Court in the case of Dhiren Baxi v/s Regional Passport Officer, Ahmedabad [AIR 2003 Gujarat 108]. The submission is that even assuming that the petitioner was not possessing a passport, once a competent court grants permission to the petitioner to travel abroad, the passport authorities will under an obligation to issue a passport to the petitioner. The learned senior counsel stated that the petitioner has filed an undertaking in this Court in which it is stated that the petitioner will not visit Singapore and Bahamas. He submitted that on receiving 72 hours’ notice, the petitioner will come back to India. He submitted that the petitioner is ready to furnish adequate security. The learned counsel appearing for the respondents pointed out that on the basis of the pendency of the criminal case, by order : 5 : dated 19th August 2008, the passport authorities have revoked/ impounded the passport of the petitioner and in absence of the passport, the petitioner is not entitled to travel abroad. He submitted that the petitioner may abscond and may not return back to India if he is permitted to travel abroad. It is submitted that as the petitioner’s wife is normally residing at Dubai, there is a genuine apprehension that the petitioner may not return. In the alternative, it is submitted that as investigation is going on at Dubai, Singapore and Bahamas, even if this Court is inclined to grant permission, the same may be granted subject to condition that the petitioner should not travel to Dubai, Singapore and Bahamas. 6. The learned senior counsel appearing for the petitioner by way of reply submitted that impounding/ revocation of the passport will not affect the power of the criminal court to grant permission to the petitioner to go abroad and if the permission is granted, the petitioner can always travel abroad, subject to getting the aforesaid order of the passport authorities set : 6 : aside by filing appropriate proceedings. 7. I have carefully considered the submissions of the learned counsel appearing for the parties. An offence complained of against the petitioner is under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 read with section 120-B of the Indian Penal Code. The main accused in the case is Professor Devi Shankar Misra working in the Physics Department of the Indian Institute of Technology, Powai, Mumbai. As per the relevant rules governing the Indian Institute of Technology (hereinafter referred to as "the I.I.T."), the Professors employed in the said Institution can undertake technology development / Industrial Consultancy Development Projects provided they can retain only 65% of the consultancy charges received and the remaining 35% are to be paid as service and other charges to the I.I.T. The allegation is that the said Professor Misra for the period between the year 2005 to 2008 entered into a criminal conspiracy with the petitioner who was running a manufacturing unit at : 7 : Singapore for abuse of his official position as a public servant and for obtaining pecuniary advantage for himself and others. It is alleged that M/s. Polishing Technologies Pvt.Ltd., Singapore, is a firm of the petitioner, which engaged services of professor Devi Shankar Misra vide an consultancy agreement with I.I.T Mumbai for setting up a Crystal Orientation Unit based on X-ray Techniques. It is alleged that Professor Misra and the wife of the petitioner have entered into a joint venture to set up a partnership at Bahamas. It is alleged that in the joint venture, Professor Misra has received an advance of sum of US $ 1 lac from the petitioner which has been deposited by the Professor Mishra in a bank account in Bahamas. It is alleged that the Professor Misra purchased a flat in a posh locality in Mumbai for which advance has been arranged by the petitioner. It is alleged that Professor Misra has not been depositing the requisite 35% share of the I.I.T in consultancy charges thereby causing huge financial loss to the I.I.T. The allegation is that the said Professor Misra in criminal conspiracy with the petitioner had abused his official position as a public servant for : 8 : pecuniary advantage to himself and the others. 8. As pointed out earlier, the petitioner’s passport was sized by the CBI. By the order dated 28th July 2008, an application made by the petitioner was allowed and the respondent was directed to return the passport of the petitioner subject to petitioner filing an undertaking that he will file an application for seeking permission to go abroad whenever he intended to go abroad. The order passed on 28th July 2008 of returning the passport has not been challenged by the respondent. An application was made by the petitioner seeking permission to go abroad between 9th August 2008 to 7th September 2008 for visiting Bangkok and Dubai. The said application was opposed on the ground that if the petitioner is allowed to go abroad, he will misuse the liberty and frustrate the further investigation. The reasons given by the learned Special Judge for rejecting the application are as under :- "He also submitted that after order dated 28/7/2008 was passed by this Court in : 9 : M.A.No.402/2008; CBI has requested External Affairs Ministry to request the passport authorities to impound passport of the applicant. The passport authorities are now examining this issue. Proposal of CBI is under consideration of that authority. It was prayed that the prayer of the applicant may be rejected. In my view, foreign visas of Indian citizens are controlled by the passport authorities. It is a matter which falls within their domain. A reference made by CBI to the said authority is under consideration of that authority. If at this juncture, any order is passed on this application, it is likely to prejudice either the applicant or the CBI. It is better; therefore; to leave this issue for the consideration of appropriate authority; because on the decision of the authority, procedure of filing appeal is also prescribed in Passport Act. If in view of the competent authority : 10 : under Passport Act, it is not in the interest of State to permit the applicant to go abroad, then he has every right to challenge that finding of the competent authority before higher forums. At this stage, therefore, I reject this application. But I make it clear by way of abundant caution that this is not an order on merit of the case. The application is being rejected to avoid causing interference in the jurisdiction of the Competent Authority. M.A.No.449/2008 stands disposed of accordingly." Now, it is brought to my notice that by order/ circular dated 19th August 2008, the Passport Authorities have impounded/ revoked the passport of the petitioner in exercise of the powers under section 10(3)(e) of the Passports Act, 1967 (hereinafter referred to as ‘the said Act of 1967’). 9. At this stage, it will be necessary to refer to the decision of this Court in the case of Shyam Chabira : 11 : (supra). This was a case where the petitioner before this Court was holding a passport, the validity of which expired on 4th July 1994. He applied for renewal of the passport. By the order dated 2nd November 1995, the passport authorities informed the petitioner that in view of pendency of a case against the petitioner for offences under the Prevention of Corruption Act, 1947 and under the Indian Penal Code, the facility of passport has been denied in exercise of the powers under section 6(2)(f) of the said Act of 1967. It is stated that the passport could not be issued to him as the passport authority had received information that the criminal case was pending against the petitioner. The order of refusal of passport was challenged by the petitioner by filing a writ petition. This court referred to sub-section (2) of section 6 of the said Act of 1967 which gives a power to the passport authorities to refuse to issue a passport for visiting any foreign country only on the grounds mentioned therein. Clause (f) of sub-section (2) of section 6 of the said Act of 1967 incorporates a ground that proceedings in respect of an offence alleged to have been committed by the : 12 : applicant are pending before a criminal court in India. In the light of the Judgment of the Apex Court in the case of Menaka Gandhi, a notification was issued by the Central Government under section 22(a) of the said Act of 1967 on 16th October 1979 for exempting the citizens of India against whom the proceedings in respect of an offence alleged to have been committed by them are pending in a criminal court in India and who produce orders from the court concerned permitting them to depart from India from the operation of provisions of clause (f) of sub-section (2) of section 6 of the said Act of 1967. It was stated in the circular that in such a case, if a permission is granted by the concerned Court, the passport will be issued. The circular provided that the concerned citizen will have to give an undertaking to the passport authority that if required by the concerned court, he shall appear before the concerned Court. By a subsequent notification dated 25th August 2003, the earlier notification was modified. After considering the said circular, in paragraph 10, this Court held as under :- : 13 : "10. In view of the aforesaid notifications by the Central Government, it is clear that the citizens against whom criminal cases are pending are made exempt from the operation of Section 6(2)(f) provided they produce orders from the concerned Court permitting them to travel abroad subject to the terms and conditions mentioned in the notifications. In other words, an application of passport is not liable to be refused on the ground of pendency of criminal case if the applicant obtains permission from the concerned Criminal Court for travelling outside India. The passport authority, therefore cannot reject the application for passport mechanically on the ground of pendency of criminal case against the application. It will be the duty of the passport authority to, bring the relevant notification to apply to the concerned Criminal Court for permission to travel abroad. If the applicant obtains such premises on from the Criminal Court where his case is pending, the passport authority will be : 14 : duty bound to issue the passport in terms of the order of the Criminal Court subject to the conditions of the notification. In the present case the passport authority has failed to bring the relevant notification to the notice of the applicant inspite of the fact that the application was pending before the authority for more than one-and-half years. In fact it is doubtful whether the passport authority himself was aware of the notification granting exemption to the citizens from the operation of Section 6(2)(f). It is matter of regret that applications are kept pending by the passport authority for such a long time particularly, when it affects the fundamental right of the citizen. At no point of time the passport authority had informed the petitioner that he was entitled to passport subject to orders of the Criminal Court. The passport authority has also failed to give information or particulars about the pending criminal case. It is an admitted position that till today the petitioner : 15 : is not served with the summons of the pending criminal case. In such a situation, it was all the more necessary for the passport authority to inform the petitioner of his right to apply to the Criminal Court for permission to travel abroad. In my opinion, it is necessary to issue specific directions to the passport authority in order to ensure that the citizens’ application for passport are not unnecessarily delayed on account of pending criminal cases." . The aforesaid decision of this Court in the said case has been followed in another decision in the case of Sham Chabira (supra). Therefore, in a case where a criminal case is pending alleging commission of an offence against a Citizen, the passport authorities cannot deny passport to the said citizen provided a permission to go abroad has been granted by the concerned court. If permission is granted, a passport or travel document cannot be denied to a citizen on the ground that a criminal case is pending in the court. : 16 : 10. In the present case, the action of revocation of the passport/ impounding of the passport has been admittedly taken in exercise of power under clause (e) of sub-section (3) of section 10 of the said Act of 1967 on the ground of pendency of the criminal proceedings in the criminal court in India. It must be noted here that under the earlier order of the learned Special Judge, the passport was ordered to be returned to the petitioner. The said order has not been challenged by the respondents. 11. In the present case, the learned Special Judge has rejected the application of the petitioner seeking permission to go abroad only on the ground that proceedings were pending before the passport authority for revocation/impounding of the passport. The fact that the accused is not holding a passport or the fact that proceedings for revocation of the passport held by him were pending will not take away the jurisdiction of the criminal court of considering and deciding the application seeking permission to travel abroad. In the present case, admittedly, the passport has been revoked/ : 17 : impounded only on the ground that the criminal case is pending against the petitioner. Even if the passport is impounded, the criminal court which is a competent court can always consider the prayer for grant of permission to go abroad and it is for the passport authorities or the concerned appellate authority to decide as to whether the order of revocation/impounding of the passport is to be cancelled or recalled. In the circumstances, in my view, the case of the petitioner ought to have been considered on merits. 12. In the present case, the allegation against the main accused Professor Misra is that acting in conspiracy with the petitioner, he has taken the entire consultancy charges without releasing 35% of the charges to the I.I.T and has abused official position as a public servant. It is alleged that Professor Misra has obtained pecuniary advantage for himself and others. There is already an undertaking filed by the petitioner that he will not visit Singapore and Bahamas. In the reply filed by the respondent, it is admitted that the petitioner’s wife is normally residing at Dubai and he : 18 : has a business there. Looking to the nature of the allegations made by the prosecution against the petitioner, this is not a case where permission to go abroad could have been denied to the petitioner. The petitioner could have been put to terms by preventing him from visiting certain areas and compelling him to furnish surety. The objection of the respondents to the petitioner visiting Singapore and the Bahamas is reasonable. Considering the nature of the allegations made in the F.I.R and the admitted position that the petitioner’s wife is normally residing at Dubai it will be unjust to deny permission to the petitioner to visit Dubai. The prayer made by the petitioner before the Trial Court was for grant of permission to travel abroad for a period of one month. A permission to travel abroad for a period of one month can be granted to the petitioner subject to various conditions. The petitioner before leaving India will have to submit a detailed travel schedule to the concerned Investigating Officer. In the schedule, he will also disclose the complete addresses of the places where the petitioner proposes to stay while he is abroad and contact : 19 : telephone numbers. By way of security, the petitioner will have to deposit a sum of Rs. 15,00,000/- with the concerned Court. It is obvious that the petitioner can travel abroad provided the order of revocation/impounding of the passport is withdrawn or set aside in accordance with the law. The undertaking furnished by the petitioner deserves to be accepted. 13. Hence, I pass the following order :- (1) The impugned Judgment and Order dated 7th August 2008 passed by the learned Special Judge in the Miscellaneous Application No.449/2008 is quashed and set aside. (2) The Petitioner is granted permission to travel abroad for a limited period of one month subject to compliance with the following conditions :- (i) The Petitioner will abide by the undertaking dated 8th September 2008 filed in this Court; : 20 : (ii) The Petitioner shall not visit Singapore and Bahamas; (iii) The Petitioner shall, atleast 72 hours prior to departure from India, submit a complete schedule of his visit abroad to the Investigating Officer setting out therein the detailed addresses of the places where he proposes to stay abroad and also the contact telephone numbers; (iv) Atleast 72 hours prior to departure from India, the Petitioner will deposit a sum of Rs.15 lacs by way of security with the Court of the learned Special Judge. The amount of security shall be refunded to the Petitioner provided he returns to India within the period of one month and provided he does not commit breach of terms and conditions incorporated herein. On Petitioner committing any breach, it will be open for the learned Special Judge to forfeit the said amount. : 21 : (3) It is made clear that the permission to go abroad is granted subject to order of revocation / impounding of the passport being cancelled or set aside in accordance with the law by the concerned Authority. (4) Parties and the concerned Court to act upon an authenticated copy of this order. [ A.S.OKA, J.]