A.P.Mohammed Ali v. State through the Central Bureau of Investigation, Economic Offences Unit VII, New Delhi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 1.4.2008.CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.O.P.No.4476 of 2008A.P.Mohammed AliPetitioner/Accusedvs. State through the Central Bureau of Investigation,Economic Offences Unit VII,New Delhi. Respondent/ComplainantCriminal Original Petition filed under section 482 Cr.P.C.seeking interim return of the petitioner's passport bearingNo.8560020 to the petitioner to enable him to undertake travel to theUnites States of America in C.C.No.35 of 2005 on the file of theAdditional Special Judge for CBI Cases, Chennai.For petitioner : Mr.C.Mani ShankharFor respondent : Mr.N.Chandrasekaran, Special Public Prosecutor for CBIORDERThe petition is filed seeking a direction to the AdditionalSpecial Judge for CBI Cases, Chennai to return the passport of thepetitioner to enable him to undergo a travel to United States ofAmerica. 2. The petitioner, along with ten others, stands charged withoffences punishable under sections 120B read with 420, 467, 468, 471,475, 201, 218, 255, 258 and 259 of the Indian Penal Code and section13(2) read with 13(1)(d) of the Prevention of Corruption Act. Thepetitioner was granted bail by the learned Additional ChiefMetropolitan Magistrate, Egmore, Chennai in Crime No.2849 of 2004 oncondition that he should surrender his passport and should not leaveIndia without prior permission from the court. In compliance of the https://hcservices.ecourts.gov.in/hcservices/ aforesaid condition imposed on him, the petitioner surrendered hispassport bearing No.A8560020. Thereafter, he filed an applicationseeking relaxation of the condition imposed in the order of bail.The learned Additional Special Judge for CBI Cases, Chennai waspleased to direct that the petitioner should inform the investigatingofficer whenever he wants to go over to foreign country or shift ispermanent residence until further orders. 3. The petitioner would contend that he has been appearingbefore the Additional Special Judge for CBI Cases, Chennai who istrying the case for the past two years without seeking any exemptionfrom appearance. The petitioner's daughter is staying along with herhusband and two kids in USA. The petitioner has received a letterdated 13.12.2007 from his daughter. She is in a family way and sheis expected to deliver her child in the month of May 2008. She hasrequested him and his wife to come and stay with her during herdelivery time. The petitioner is a retired IPS Officer drawingpension from the Government. He has got a permanent residence atChennai and Ilayangudi. He owns a commercial property atRoyapettah. His brother's family and younger sisters are also inIndia. He has strong social roots in the city of Chennai. He has tocome back to Chennai after spending sometime with her daughter in thehour of need. The U.S. Authorities are also very strict as far asthe stay of the foreigners in their country is concerned. Of course,the earlier application moved by the petitioner seeking permission tovisit his daughter at Saudi Arabia was dismissed on the ground thatthe trial will be delayed. The petitioner will be put to mentalagony if he is not permitted to visit his daughter at this crucialjuncture. He will not raise any objection in future that witnesseshad been examined in his absence. Therefore, with the aboveaverments, he has sought for interim custody of his passport. 4. The respondent-CBI filed counter stating that the caseagainst six other accused persons were also split up as they pleadedguilty of the charges and the trial against the remaining accusedincluding the petitioner herein commenced on 28.2.2008. LW1(approver) was partly examined. The approvers will have to identifythe accused persons before the court. The trial will be delayed ifthe petitioner goes over to foreign country. Grave charges have beenlevelled against the petitioner. Sufficient materials have beencollected by the investigating agency to establish the case of theprosecution. The petitioner had also obtained superannuation. Hisdaughter is residing in United States of America. Hence, theprosecution apprehends that the petitioner may not come back to Indiaif he is permitted to go over there and therefore, the respondentwould contend that the petition is liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/

5. Learned counsel appearing for the petitioner would submitthat the petitioner could stay only for sixty days in the UnitedStates of America. The next date of trial hearing has been posted to24.4.2008. In the face of the strict immigration laws in vogue inthe United States of America, there is no possibility for thepetitioner to stay put in America. The Additional Special Judge forCBI Cases, Chennai has already relaxed all the conditions he hadimposed at the time when he granted bail to the petitioner. Thepetitioner has to take his illiterate wife to the United States ofAmerica where she will be grilled at the time when she lands at theUnited States of America. She cannot withstand the probing questionsput by the immigration authorities in the land of Unites States ofAmerica. Further, as a parent, the petitioner has to be with hisdaughter atleast for a short while during her delivery time.Therefore, the learned counsel appearing for the petitioner wouldsubmit that the petitioner has made out a case for return of hispassport. 6. Learned Special Public Prosecutor for the CBI would contendthat the Trial is in progress and the approver is virtually in thebox. The earlier petition moved by the petitioner was alreadydismissed by the Trial Court and the revision preferred as againstthe said order also stood dismissed. The gravity of charge laid asagainst the petitioner will have to be seriously considered by thiscourt while disposing of this application. It is his furthersubmission that the petitioner will not be available for trial if heis permitted to go over to foreign country. 7. On a careful perusal of the order of bail granted by theAdditional Chief Metropolitan Magistrate, Egmore, Chennai inCrl.M.P.No.2849 of 2004, the court finds that he has directed thepetitioner to surrender his passport and not to leave India withoutprior permission of the court. As rightly pointed out by the learnedcounsel appearing for the petitioner, all the conditions imposed bythe Additional Chief Metropolitan Magistrate, Egmore, Chennai werefully relaxed by the Additional Special Judge for CBI Cases, Chennai.The only fresh condition found in the order passed in Crl.M.P.No.225of 2005 in C.C.No.35 of 2005 by the Trial Court is that thepetitioner should inform the investigating officer whenever he wantedto go over to foreign country and to shift his residence. Therefore,it is found that the custody of the passport of the petitioner withthe Trial Court has no legal sanction. At any rate, it is found thatthe Trial Court as well as this court in the earlier applicationsmoved by the petitioner seeking return of his passport, rejected theplea 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 beforethe Trial Court. But, the court cannot ignore the fact that thepetitioner, a retired Director General of Police, had attended allthe hearings for about two long years before the Trial Court. Infact, the trial commenced only on 28.2.2008 after the petitionseeking return of passport was filed by the petitioner before thiscourt invoking the provision under section 482 of the Code ofCriminal Procedure. Now, the continuation of the trial has beenposted to 24.4.2008 based on the submissions made in the petitionfiled by the CBI bringing to the notice of the Trial Court about thecriminal revision petition filed before this court against the orderpassed by the Trial Court to summon certain documents. Therefore, asrightly pointed out by the learned counsel appearing for thepetitioner, there may not be any progress in the trial of the caseeven on 24.4.2008. Even otherwise, it is found that the petitionerhas given up his right to object for the continuation of the trial inhis absence. He has also undertaken that he would not raise a pleathat the witnesses examined in his absence had no occasion toidentify him during the course of trial. 9. After all, the petitioner seeks permission to go over toUnited States of America only for sixty days. The petitioner hasproduced the letter emanated from his daughter to show that she hasrequested fondly his and his wife's presence at the hour of deliveryof child in a place thousands of kilometres away from India. Thelonging of the daughter to have her parents by her side at thecrucial hour of need and the parental aspiration to take care oftheir daughter at the time of delivery are quite understandable. Theimmigration laws in the United States of America is very stringent.Overstay in the United States of America will deprive the petitionerof his right to travel again to United States of America apart frompenal consequences. A person who travels to United States of Americawill have to pack off even a day prior to the expiry of the periodgranted under the Visa. The absence of the petitioner for aboutsixty days will not hamper the course of trial, as the continuationof the trial has been posted to 24.4.2008 and the possibility of thecontinuation of the Trial on that particular date is also very bleakin view of the criminal revision case preferred by the CBI beforethis court as against the order passed by the Trial Court. 10. It is true that the earlier petition moved by the petitionerseeking return of his passport was dismissed by the Trial Court andthe same was also confirmed by this court in Criminal Revision CaseNo.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 ofpassport. The court also observed that if the petitioner was allowedto go over to foreign country, it would very much hamper the progressof the trial of the case. It is now found that the trial has alreadybegun and the approver is virtually in the box. But, the continuationof the trial has been posted to 24.4.2008. The further examinationof the approver on that particular date also is very bleak as thecriminal revision case filed by the CBI as against the order passedby the Trial Court is pending disposal before this court. Therefore,the absence of the petitioner for a shortwhile in the abovecircumstances will not hamper the progress of the trial. There is nobar for the petitioner to come out with a fresh petition seekingreturn of the passport even if the earlier petition filed by him wasrejected by the competent court. In the earlier petition, he soughtpermission 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 beforethis court again seeking return of his passport. 11. Except the bald allegation that he may not return fromforeign country if he is permitted to go over to foreign country,there is no material to back such a wild allegation as against theretired Deputy Inspector General of Police, who, of course, is facingthe graver charges as detailed above. 12. The petitioner has social roots in the city of Chennai. Heis also found to be a pensioner under the Government of Tamil Naduapart from the fact that he owns house and a commercial property inthe city of Chennai. Those facts were not disputed by the CBI.Under the above circumstances, no occasion would arise for hisoverstay in order to derail the trial of the case. Admission ofguilt by the other accused and the splitting up of the case asagainst them do not have any bearing on the petition filed by thepetitioner seeking interim custody of the passport. The petitionerhas made out a case for return of his passport to travel to UnitedStates of America for sixty days. 13. In view of the above, directing the Additional Special Judgefor CBI Cases, Chennai to arrange for return the passport of thepetitioner bearing No.8560020 to the petitioner to enable him totravel to United States of America for a period of sixty days, thepetition stands allowed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ssk. To1. 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 17838SGL (CO)km/1.4.Crl.O.P.No.4476/2008