IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 1.4.2008. CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL Crl.O.P.No.4476 of 2008 A.P.Mohammed Ali Petitioner/Accused vs. State through the Central Bureau of Investigation, Economic Offences Unit VII, New Delhi. Respondent/Complainant Criminal Original Petition filed under section 482 Cr.P.C. seeking interim return of the petitioner's passport bearing No.8560020 to the petitioner to enable him to undertake travel to the Unites States of America in C.C.No.35 of 2005 on the file of the Additional Special Judge for CBI Cases, Chennai. For petitioner : Mr.C.Mani Shankhar For respondent : Mr.N.Chandrasekaran, Special Public Prosecutor for CBI ORDER The petition is filed seeking a direction to the Additional Special Judge for CBI Cases, Chennai to return the passport of the petitioner to enable him to undergo a travel to United States of America. 2. The petitioner, along with ten others, stands charged with offences punishable under sections 120B read with 420, 467, 468, 471, 475, 201, 218, 255, 258 and 259 of the Indian Penal Code and section 13(2) read with 13(1)(d) of the Prevention of Corruption Act. The petitioner was granted bail by the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai in Crime No.2849 of 2004 on condition that he should surrender his passport and should not leave India without prior permission from the court. In compliance of the https://hcservices.ecourts.gov.in/hcservices/ aforesaid condition imposed on him, the petitioner surrendered his passport bearing No.A8560020. Thereafter, he filed an application seeking relaxation of the condition imposed in the order of bail. The learned Additional Special Judge for CBI Cases, Chennai was pleased to direct that the petitioner should inform the investigating officer whenever he wants to go over to foreign country or shift is permanent residence until further orders. 3. The petitioner would contend that he has been appearing before the Additional Special Judge for CBI Cases, Chennai who is trying the case for the past two years without seeking any exemption from appearance. The petitioner's daughter is staying along with her husband and two kids in USA. The petitioner has received a letter dated 13.12.2007 from his daughter. She is in a family way and she is expected to deliver her child in the month of May 2008. She has requested him and his wife to come and stay with her during her delivery time. The petitioner is a retired IPS Officer drawing pension from the Government. He has got a permanent residence at Chennai and Ilayangudi. He owns a commercial property at Royapettah. His brother's family and younger sisters are also in India. He has strong social roots in the city of Chennai. He has to come back to Chennai after spending sometime with her daughter in the hour of need. The U.S. Authorities are also very strict as far as the stay of the foreigners in their country is concerned. Of course, the earlier application moved by the petitioner seeking permission to visit his daughter at Saudi Arabia was dismissed on the ground that the trial will be delayed. The petitioner will be put to mental agony if he is not permitted to visit his daughter at this crucial juncture. He will not raise any objection in future that witnesses had been examined in his absence. Therefore, with the above averments, he has sought for interim custody of his passport. 4. The respondent-CBI filed counter stating that the case against six other accused persons were also split up as they pleaded guilty of the charges and the trial against the remaining accused including the petitioner herein commenced on 28.2.2008. LW1 (approver) was partly examined. The approvers will have to identify the accused persons before the court. The trial will be delayed if the petitioner goes over to foreign country. Grave charges have been levelled against the petitioner. Sufficient materials have been collected by the investigating agency to establish the case of the prosecution. The petitioner had also obtained superannuation. His daughter is residing in United States of America. Hence, the prosecution apprehends that the petitioner may not come back to India if he is permitted to go over there and therefore, the respondent would contend that the petition is liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 5. Learned counsel appearing for the petitioner would submit that the petitioner could stay only for sixty days in the United States of America. The next date of trial hearing has been posted to 24.4.2008. In the face of the strict immigration laws in vogue in the United States of America, there is no possibility for the petitioner to stay put in America. The Additional Special Judge for CBI Cases, Chennai has already relaxed all the conditions he had imposed at the time when he granted bail to the petitioner. The petitioner has to take his illiterate wife to the United States of America where she will be grilled at the time when she lands at the United States of America. She cannot withstand the probing questions put by the immigration authorities in the land of Unites States of America. Further, as a parent, the petitioner has to be with his daughter atleast for a short while during her delivery time. Therefore, the learned counsel appearing for the petitioner would submit that the petitioner has made out a case for return of his passport. 6. Learned Special Public Prosecutor for the CBI would contend that the Trial is in progress and the approver is virtually in the box. The earlier petition moved by the petitioner was already dismissed by the Trial Court and the revision preferred as against the said order also stood dismissed. The gravity of charge laid as against the petitioner will have to be seriously considered by this court while disposing of this application. It is his further submission that the petitioner will not be available for trial if he is permitted to go over to foreign country. 7. On a careful perusal of the order of bail granted by the Additional Chief Metropolitan Magistrate, Egmore, Chennai in Crl.M.P.No.2849 of 2004, the court finds that he has directed the petitioner to surrender his passport and not to leave India without prior permission of the court. As rightly pointed out by the learned counsel appearing for the petitioner, all the conditions imposed by the Additional Chief Metropolitan Magistrate, Egmore, Chennai were fully relaxed by the Additional Special Judge for CBI Cases, Chennai. The only fresh condition found in the order passed in Crl.M.P.No.225 of 2005 in C.C.No.35 of 2005 by the Trial Court is that the petitioner should inform the investigating officer whenever he wanted to go over to foreign country and to shift his residence. Therefore, it is found that the custody of the passport of the petitioner with the Trial Court has no legal sanction. At any rate, it is found that the Trial Court as well as this court in the earlier applications moved by the petitioner seeking return of his passport, rejected the plea for return of the passport considering the gravity of the charge https://hcservices.ecourts.gov.in/hcservices/ and the pendency of the Trial. 8. It is true that the petitioner is facing graver charge before the Trial Court. But, the court cannot ignore the fact that the petitioner, a retired Director General of Police, had attended all the hearings for about two long years before the Trial Court. In fact, the trial commenced only on 28.2.2008 after the petition seeking return of passport was filed by the petitioner before this court invoking the provision under section 482 of the Code of Criminal Procedure. Now, the continuation of the trial has been posted to 24.4.2008 based on the submissions made in the petition filed by the CBI bringing to the notice of the Trial Court about the criminal revision petition filed before this court against the order passed by the Trial Court to summon certain documents. Therefore, as rightly pointed out by the learned counsel appearing for the petitioner, there may not be any progress in the trial of the case even on 24.4.2008. Even otherwise, it is found that the petitioner has given up his right to object for the continuation of the trial in his absence. He has also undertaken that he would not raise a plea that the witnesses examined in his absence had no occasion to identify him during the course of trial. 9. After all, the petitioner seeks permission to go over to United States of America only for sixty days. The petitioner has produced the letter emanated from his daughter to show that she has requested fondly his and his wife's presence at the hour of delivery of child in a place thousands of kilometres away from India. The longing of the daughter to have her parents by her side at the crucial hour of need and the parental aspiration to take care of their daughter at the time of delivery are quite understandable. The immigration laws in the United States of America is very stringent. Overstay in the United States of America will deprive the petitioner of his right to travel again to United States of America apart from penal consequences. A person who travels to United States of America will have to pack off even a day prior to the expiry of the period granted under the Visa. The absence of the petitioner for about sixty days will not hamper the course of trial, as the continuation of the trial has been posted to 24.4.2008 and the possibility of the continuation of the Trial on that particular date is also very bleak in view of the criminal revision case preferred by the CBI before this court as against the order passed by the Trial Court. 10. It is true that the earlier petition moved by the petitioner seeking return of his passport was dismissed by the Trial Court and the same was also confirmed by this court in Criminal Revision Case No.574 of 2007. Of course, this court considered the gravity of the https://hcservices.ecourts.gov.in/hcservices/ offence while dismissing the earlier petition seeking return of passport. The court also observed that if the petitioner was allowed to go over to foreign country, it would very much hamper the progress of the trial of the case. It is now found that the trial has already begun and the approver is virtually in the box. But, the continuation of the trial has been posted to 24.4.2008. The further examination of the approver on that particular date also is very bleak as the criminal revision case filed by the CBI as against the order passed by the Trial Court is pending disposal before this court. Therefore, the absence of the petitioner for a shortwhile in the above circumstances will not hamper the progress of the trial. There is no bar for the petitioner to come out with a fresh petition seeking return of the passport even if the earlier petition filed by him was rejected by the competent court. In the earlier petition, he sought permission to go over to Saudi Arabia to pay a visit to his daughter. But, the petitioner has come out with a very strong case now before this court again seeking return of his passport. 11. Except the bald allegation that he may not return from foreign country if he is permitted to go over to foreign country, there is no material to back such a wild allegation as against the retired Deputy Inspector General of Police, who, of course, is facing the graver charges as detailed above. 12. The petitioner has social roots in the city of Chennai. He is also found to be a pensioner under the Government of Tamil Nadu apart from the fact that he owns house and a commercial property in the city of Chennai. Those facts were not disputed by the CBI. Under the above circumstances, no occasion would arise for his overstay in order to derail the trial of the case. Admission of guilt by the other accused and the splitting up of the case as against them do not have any bearing on the petition filed by the petitioner seeking interim custody of the passport. The petitioner has made out a case for return of his passport to travel to United States of America for sixty days. 13. In view of the above, directing the Additional Special Judge for CBI Cases, Chennai to arrange for return the passport of the petitioner bearing No.8560020 to the petitioner to enable him to travel to United States of America for a period of sixty days, the petition stands allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ssk. To 1. The Additional Special Judge for CBI Cases, Chennai. 2. The Central Bureau of Investigation, Economic Offences Unit VII, New Delhi. 3.The Special Public Prosecutor for CBI, Chennai-104. +1cc to Mr.C.Manishankar, Advocate Sr 17838 SGL (CO) km/1.4. Crl.O.P.No.4476/2008 https://hcservices.ecourts.gov.in/hcservices/