WP(C) 2651/2010 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA HON’BLE MR. JUSTICE U.B. SAHA. . WP(C) NO.2651/2010 & CRL. RVN. PTN. NO. 117/2010 Heard Ms M. Dev, learned counsel for the petitioners as well as Mr. Z. Kamar, le arned P.P. Assam. We have also heard Mr. J.M. Choudhury, learned Sr. counsel ass isted by Mr. Kamal Agarwal, learned counsel representing the Respondent No.5. Ms R. Chakraborty,learned State counsel is present on behalf of the State responde nts. The writ petition being WP(C) No.2651/2010 and Criminal Revision Petition No.117 /2010 have been filed by the same very petitioners. In the writ petition, the pr ayer is as follows :- In the premises aforesaid, it is therefore prayed that Your Lordships may be pl eased to admit this petition, call for the records and issue a Rule calling upon the respondents to show cause as to why a Writ in the nature of Mandamus should not be issued giving following direction, directing the respondents No.3 & 4 (i) to Act in accordance with law and also not to exceed their jurisdiction, (ii) not to interfere with the lives and liberty of the petitioners without d ue procedure of law, (iii) and also direct the respondent No.4 to release the passports of the peti tioners forthwith and after perusal of records appropriate writ or writs, order or direction shoul d not be issued so as to give complete relief to the petitioners and upon cause s being shown if any and upon hearing the parties may make the Rule absolute and /or pass such further or other orders as Your Lordships may deem fit and proper . - And - Pending disposal of the Rule, Your Lordships may be pleased to direct the respon dent No.4 to release the passports of the petitioners forthwith and also be plea sed to allow the petitioners to remain in outside the jurisdiction of the learne d C.J.M. Kamrup, Guwahati except when their presence are required by the Court o r Investigating Officer of All Women P.S. Case No.17/2010 and also be pleased to conduct enquiry by appropriate authority in the interest of Justice. On the other hand, the prayer made in the criminal revision petition is as follows :- In the premises aforesaid, it is therefore, prayed that Your Lordships may be p leased to admit this petition and issue notice calling upon the Opposite Party t o show cause as to why the impugned order dated 04.03.2010 (vide Annexure-4) pas sed by the learned Chief Judicial Magistrate, Kamrup, Guwahati directing the pet itioners not to leave the jurisdiction of his Court in connection with All Women P.S. Case No.17 of 2010 registered under Sections 498(A)/34 IPC should not be s et aside and/or upon cause or causes being shown and after hearing the Parties, may further be pleased to pass any other or further order or orders as to Your L ordships may deem fit and proper. - And - Pending disposal of the present petition, Your Lordships may be pleased to stay/ suspend the order dated 04.03.2010 passed in All Women Police Station Case No.17 of 2010 u/s 498(A)/34 IPC directing the petitioners not to leave the jurisdicti on of the learned Court of Chief Judicial Magistrate, Kamrup, Guwahati on the ba sis of petition dated 03.03.2010 of the informant and/or also be pleased to pass any other or further suitable interim order as to Your Lordships may deem fit a nd proper. The writ petition was entertained by order dated 10.5.2010 and as an int erim measure, the petitioners were allowed to leave the jurisdiction of the lear ned Chief Judicial Magistrate, Kamrup, Guwahati with the stipulation that they w ould appear before this Court on 24.5.2010. Accordingly, the petitioners appeare d before this Court on 24.5.2010 and the matter was adjourned to 25.5.2010. On 2 5.5.2010, this Court, while requiring the investigating agency to furnish update d version of the investigation, adjourned the matter to 28.5.2010. The earlier i nterim order was extended. Thereafter, the matter was listed again on 2.6.2010, on which date, on the agreement of both the sides, it was provided that the pet itioners should appear before the new investigating agency i.e. C.I.D. on 3.6.20 10 at 1.00 P.M. It was provided that upon such appearance, the investigating age ncy may interrogate the petitioners. It is submitted by Ms M. Dev, learned counsel appearing for the petition ers that although the petitioners had appeared in the office of the C.I.D. in te rms of the order dated 2.6.2010, but in absence of the Investigating Officer, so me other officials put some questions to the petitioners and thereafter, directe d them to appear again on 4.6.2010. On 4.6.2010 also, the petitioners appeared in the office of the C.I.D. and the Investigating Officer interrogated them. Af ter such interrogation, the petitioners were directed to appear again on 5.6.201 0 asking them to produce certain documents. Accordingly, the petitioners again appeared on 5.6.2010 and produced the documents, as were asked for by the Invest igating Officer. The aforesaid narration of the fact necessarily require us to state the background of the fact giving rise to the instant proceedings. On the basis of t he Annexure-1 F.I.R. dated 9.2.2010 lodged by the Respondent No.5 with the Offic er-in-Charge of the All Women Police Station (Women Cell), Panbazar, Guwahati, A ll Women P.S. Case No.17/2010 under Section 498(A)/34 IPC has been registered ag ainst the petitioners. In the said FIR, the allegation of dowry demand has been made. Along with the FIR, a purported E-Mail addressed to the first informant by the alleged victim girl was also enclosed. On the basis of the aforesaid FIR, the petitioners were arrested on 16. 2.2010, when they landed in the Airport at Delhi on their way from Hongkong to J aipur. After their such arrest, their passport has been seized by the Investigat ing Officer and their statements have also been recorded. After their such arres t on 16.2.2010, they had been in the jail custody till they were granted bail by this Court on 3.3.2010 in Bail Application 663/2010. For a ready reference, the bail order dated 3.3.2010 is quoted below :- Date of order : 03.03.2010 The petitioners having been arrested on 16.2.2010 in connection with All Women P.S. Case No.17/2010 registered under Section 498(A)/34 IPC, have approac hed this Court by filing this application under Section 439 CrPC, for releasing them on bail. Heard Mr. A. M. Majumdar, learned Sr. counsel appearing for the petitioners and Mr. Munir, learned P.P. appearing for the State. Mr. J.M. Choudhury, learned se nior counsel appears on behalf of the complainant and lends support to the learn ed Addl. P.P. The learned P.P. procuring the connected case diary has highlighted the materia ls so far collected by the I/O during the course of investigation of the case. On the basis of an FIR dated 9.2.2010 lodged with the O/C of Women Police Statio n (Women Cell) Panbazar, the petitioners were arrested at Delhi on their way fr om Hongkong to Jaipur, when their arrival was intimated by the victim girl to th e complainant, by E-Mail. After arrest, the passport of the petitioners were al so seized by the I/O and their statements have been recorded. The petitioner No. 1 is stated to be a victim of prostate cancer and the petitioner No.2 is a lady suffering from lymphoma treated with camo-therapy and radiotherapy. Both are i n custody since 16.2.2010. In view of the above considerations and considering the progress of investigatio n and the detention of the petitioners in custody for the last 15 days, who are the parents of the husband of the victim girl, I do not consider that their fur ther detention is necessary for custodial interrogation. Accordingly it is order ed that the petitioners namely Shri Manraj Nahata and Smt. Vimala Nahata be rel eased on bail of Rs.40,000/- each with two local sureties each of the like amoun t subject to the satisfaction of the learned CJM Kamrup, subject to further cond itions - i) that the petitioners shall not hamper with the investigation of the case or temper with evidence and assist the I/O during the course of investigation. ii) They shall assist the I/O in investigation of the case. iii) The learned CJM would be entitled to incorporate any other conditions t o secure the presence of the petitioners in future, if occasion arises. With this order the bail application stands disposed of. After the said order dated 3.3.2010 was passed by this court, the Respon dent No.5 filed an application on 3.3.2010 itself in the Court of the learned Ch ief Judicial Magistrate, Kamrup, Guwahati, which was registered and numbered as Petition No.848/2010. In the said application, the prayer made was to impose co ndition while accepting the bail bond of the accused petitioners towards their r elease in terms of the aforesaid order dated 3.3.2010 passed by this Court. The learned Chief Judicial Magistrate by his order dated 4.3.2010 while accepting the bail bond furnished by the petitioners, imposed condition that the y shall not leave the jurisdiction of the Court of the learned Chief Judicial Ma gistrate, without prior permission. It is in this condition making a grievance a gainst which the petitioners have filed Criminal Revision Petition No.117/2010. It appears that the petitioners filed the applications before the learne d Chief Judicial Magistrate to lift the condition regarding their continued pres ence within the jurisdiction of the learned Chief Judicial Magistrate and not to leave the said jurisdiction without prior permission and also seeking release o f their passports. So far as the prayer for release of the passports is concerne d, the learned Chief Judicial Magistrate by his order dated 29.3.2010 called for report from the Investigating Officer. As regards the prayer to allow the peti tioners to leave the local limit of the jurisdictional Court, it is on record th at the learned Chief Judicial Magistrate by his order dated 6.3.2010 allowed the petitioners to leave the jurisdiction of the court for a period of 30 (thirty) days. When the aforesaid orders were in operation, the petitioners filed afore said Criminal Revision Petition No.117/2010 making a grievance against the order dated 4.3.2010 passed by the learned Chief Judicial Magistrate imposing the afo resaid conditions and so also, the writ petition being WP(C) No.2651/2010 with t he aforesaid prayer. Ms M. Dev, learned counsel for the petitioners submits that having rega rd to the facts and circumstances involved in the case, more particularly, when the petitioners are the citizens of India (N.R.I. permanently residing at Honko ng) and they have got the properties at Jaipur in India, they are entitled to ge t their passports back and to leave for Hongkong, where their place of business is situated. On the other hand, Mr. J.M. Choudhury, learned Sr. counsel appearing for the Respondent No.5 and Mr. Z. Kamar, learned PP Assam, submit that since other two accused persons have not been able to be arrested and the investigation is still at the initial stage, the release of the passports enabling the petitione rs to leave India may entail consequence of non-appearance by the petitioners be fore the Investigating Officer as and when their presence may be required in fut ure. Ms R. Chakraborty, learned State counsel submits in tune with the additi onal affidavit filed today by the Superintendent of Police, CID, Assam. She has expressed inability to produce the case diary. We have carefully considered the submissions made by the learned counsel for the parties and have also perused the entire materials available on record. When th e petition for release of the passports was pending before the learned Chief Jud icial Magistrate, he had called for report from the Investigating Officer in All Women P.S. Case No.17/2010 which submitted its report vide Annexure-10 dated 5. 4.2010 and the same is reproduced below :- I have the honour to submit the report as ordered by your Hon’ble Court that du ring the period of arrest of accused Sri Manraj Nahata & Smt. Vimala Nahata, the ir passport seized due to observe some formalities of investigation. The said se ized passport is not required for further investigation of the case. Submitted for favour of your kind perusal As per the aforesaid report submitted by the police, the passport was not requir ed for further investigation of the case. In the bail order dated 3.3.2010 pass ed by this Court also, this Court recorded about recording of the statements of the petitioners by the Investigating Officer. The Court also noticed about the p rogress made in the investigation and accordingly, granted the prayer for bail. However, it was provided that the learned Chief Judicial Magistrate would be entitled to incorporate any other conditions to secure the presence of the petit ioners in future, if occasion arises. In terms of the aforesaid order passed by this Court, the learned Chief Judicial Magistrate was to ensure, if necessary, incorporation of the condition to secure the presence of the petitioners in future, if occasion arises. While t he learned Chief Judicial Magistrate was authorised to incorporate any condition to secure the presence of the petitioners, but he incorporated the condition to the effect that the petitioners must not leave the jurisdiction of his Court wi thout prior permission. Such a condition was imposed on the basis of an applicat ion filed by the Respondent No.5 i.e. the informant, about which mention has bee n made above. In our order dated 2.6.2010, we had recorded the submissions made on beh alf of the petitioners that they are ready to furnish adequate security for rel ease of the passports and their departure to the place of business. The investi gating agency was to take note of the said undertaking furnished by the petition ers. However, in the additional affidavit filed today, there is no mention of t he said aspect of the matter. The only statement made is that since other two ac cused persons have not been able to be arrested and that the C.I.D. has taken ov er the investigation only on 20.5.2010, it will be detrimental to allow the peti tioners to leave India and to release the passports. The petitioners were arrested on 16.2.2010 and since then, they were in custody till granting the bail and their passports are on seizure. In the writ p etition, they have pleaded the case of violation of the Fundamental Rights as en shrined in the Constitution of India. It is their case that in the name of inves tigation, which in the meantime has been transferred from the general investigat ing agency to the C.I.D, their Fundamental Rights cannot be infringed in the man ner and method sought to be done. As per the counter affidavit filed by the Resp ondent No.5, the case has been transferred from All Women Police Station to the C.I.D. at his behest. It is his pleaded case that such transfer has taken place on the basis of the application filed by him before the Director General of Pol ice, Assam, Guwahati. Ms M. Dev, learned counsel appearing for the petitioners submits that th e petitioners are ready to submit their original documents pertaining to their flat situated at Jaipur. She further submits that the petitioners have already submitted the bail bond of Rs.40,000/- with two sureties of the like amount. Thu s, according to her, the same will be adequate security towards procuring appear ance of the petitioners in case of necessity in future. In view of the above, we allow the writ petition and the criminal revisi on petition (C.R.P.117/2010) with the following order :- The passports be released to the petitioners forthwith and they may be allowed t o leave India subject to the condition that they will appear before the Investig ating Officer as and when their presence is reasonably felt required. However, for such appearance prior notice of one month shall be issued. The petitioners s hall submit the original documents pertaining to their flat at Jaipur to the sat isfaction of the learned Chief Judicial Magistrate, Kamrup, Guwahati. Consequent ly, the order dated 4.3.2010 passed by the learned Chief Judicial Magistrate sta nds modified to the above extent. The writ petition and the criminal revision petition are answered in the above m anner.