Whereas in the case on hand, the petitioner/A.3 had left India for Saudi Arabia after commission of communal offences allegedly. In that back ground, the petitioner cannot be permitted to leave India, pending criminal proceedings. In the result, the Investigating Officer is directed to submit seized passport of the petitioner/A.3 to the Magistrate along with the charge sheet and the Investigating Officer will be at liberty to take steps for impounding the petitioner's passport under Section 10(3) or under Section 10-A of the Passports Act, 1967 through Court immediately thereafter. Subject to the same, the Criminal Petition is dismissed.


HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU            

CRIMINAL PETITION No.5661 of 2012  

06.08.2012

Mohammed Arifuddin Rahman  

The State of A.P., rep by Public Prosecutor,High Court of A.P.,

Counsel for the Petitioners: Sri Prabhakar Sripada

Counsel  for the Respondents:  Additional Public Prosecutor

<Gist :

>Head Note:


? Cases referred:

1. (2008) 3 Supreme Court Cases 674
2. 2000 CRI.L.J.4325


O R D E R:


        The petitioner/A.3 questions order dated 10.04.2012 passed by the VII
Additional Metropolitan Sessions Judge, Hyderabad in Crl.M.P.No.1046 of 2012 in
Cr.No.268 of 2000 of Malakpet Police Station, Hyderabad.  The petitioner is
accused of offences punishable under Section 4 of the Explosive Substances Act,
1908 and Section 153-A IPC along with two others.  He was arrested on 07.09.2011
by the Investigating Officer and the lower Court granted bail to the petitioner
on 21.11.2011 under Section 167(2) Cr.P.C.  Though in the impugned order, the
lower Court stated that the passport was not seized in this case, the said
observation is not correct factually.  The remand case dairy dated 07.09.2011
reads that the Investigating Officer seized passport of the petitioner after his
arrest in this case.
        2.  Complaint of the petitioner's counsel is that though the offence was
detected on 02.11.2000, till today the police did not prefer to file charge
sheet.  This is a case where there was attempt to cause explosion by keeping a
time bomb near Sri Sai Book Stall which is very near to Hanuman Temple,
Dilsukhnagar Bus stop, Hyderabad with an intention to endanger lives of public
and property in order to develop enmity between religions to bring disharmony
and to disturb public tranquility.  Fortunately, location of the time bomb in a
bag was detected.  It is only after arrest of A.3 on 07.09.2011, it came to
light that A.1 to A.3 was responsible for placing time bomb.  According to the
prosecution, A.1 to A.3 are close associates of Darsgah-e-Jehad-o-Shahadat (DJS)
and that after demolition of Babri Masjid, they decided to take revenge against
the Hindus and that in pursuance of their plan, they prepared an IED bomb in a
thickly populated area near Hanuman Temple where Hindu population is dominated
and that on 01.11.2000, A.1 and A.2 prepared a bomb which works on timer device
and placed it in a bag and that A.1 and A.3 took the bomb on motor cycle of A.3
and placed it infront of a book stall near Hanuman Temple, but the bomb did not
explode.  A.3 was arrested on 18.08.2001 in another crime under Sections 143,
153, 153-A and 295-A IPC and was subsequently released on bail.  According to
the prosecution, subsequent to release from jail, A.3 had been to Dammam of KSA
and settled there while working in different institutions.  While so, A.1 and
A.2 died in exchange of fire (EOF) with the police on 23.11.2002 and 24.11.2002
at Uppal and Karimnagar respectively and that thinking that he may be arrested,
A.3 did not come to India upto the year 2009 and that in the year 2009, he came
to India once secretly and again on 26.08.2011 he came to Hyderabad to celebrate
Ramzan festival along with his family members, during which time he was arrested
on 07.09.2011.  It is stated by the Additional Public Prosecutor that
investigation of the case is completed and the Investigating Officer addressed
the Government of Andhra Pradesh for issuing of sanction for prosecution for the
offence under Section 153-A IPC and that the matter is pending with the
Government for grant of sanction and that as soon as sanction is obtained, the
Investigating Officer will file the charge sheet in this case.  Therefore, the
complaint of the petitioner's counsel about long delay from the year 2000 in
filing charge sheet in this crime is unwarranted.  The police could arrest A.3
only in the year 2009 as he left India to Saudi Arabia in order to evade his
arrest in this case and in other cases.
       
        3.  According to A.3, he is working as Salesman in a Steel Trading Company
in Saudi Arabia.  The petitioner's counsel stated that A.3's VISA to Saudi
Arabia will expire on 02.10.2012.  It is further contended that the petitioner
acquired certain movable properties in Saudi Arabia like a four wheeler and
others and that in case he did not go to Saudi Arabia within the above period,
then he would lose his job as well as his livelihood in Saudi Arabia along with
his movables.  Placing reliance on Suresh Nanda v Central Bureau of
Investigation1 of the Supreme Court, it is contended by the petitioner's counsel
that seizing passport by the Investigating Officer amounts to impounding of the
same and that the Police Officer has no authority to impound a passport under
Section 10(3) and Section 10A of the Passports Act, 1967 and that the Police
Officer after seizing the passport has to take steps before the Regional
Passport Authority for impounding the passport and that no such steps are taken
in this regard and that it would be unconstitutional if the petitioner is denied
permission to travel abroad for pursuing his livelihood.  Purport of the
impugned order passed by the lower Court is not legality of seizing the passport
and retaining the same with the police without taking steps before the Regional
Passport Authority for impounding the same under Sections 10(3) and 10A of the
Passports Act, 1967.  The petitioner had only prayed for return of the passport
and relax condition of bail permitting to go to Saudi Arabia.

        4.  It is contended by the Additional Public Prosecutor that in case, the
petitioner leaves India for Saudi Arabia, there is every likelihood of the
petitioner not returning to India in the near future in order to avoid pending
criminal cases against him.  In case, the petitioner goes to Saudi Arabia and
refuses to return to India within the time allowed, then there is no way to
secure his presence in India for facing trial in this case, as it is informed
that there is no extradition treaty for India with Saudi Arabia.  Therefore,
even if petitioner's passport is ordered to be released to the petitioner, he
may not be in a position to travel abroad to Saudi Arabia unless the Court
grants permission to leave India.  In view of the communal criminal back ground
of the petitioner and his previous conduct of evading from arrest from the year
2000 onwards till the year 2011 by going away to Saudi Arabia, I agree with the
lower Court that he may not be come back to India to face trial in this case, in
case he is granted permission to leave India to Saudi Arabia for his livelihood.
       
        5. In Suresh Nanda (supra) of the Supreme Court, the petitioner therein
settled in United Kingdom for the past 23 years since before registration of
F.I.R. in the year 2006 against the accused.  In Pawan Kumar v State of
Rajasthan2 of Rajasthan High Court, the person who was accused of the offences
under Sections 304-B and 498-A IPC was eking out his livelihood at Kuwait even
prior to commission of the offences therein.  Whereas in the case on hand, the
petitioner/A.3 had left India for Saudi Arabia after commission of communal
offences allegedly.  In that back ground, the petitioner cannot be permitted to
leave India, pending criminal proceedings.

        6.  In the result, the Investigating Officer is directed to submit seized
passport of the petitioner/A.3 to the Magistrate along with the charge sheet and
the Investigating Officer will be at liberty to take steps for impounding the
petitioner's passport under Section 10(3) or under Section 10-A of the Passports
Act, 1967 through Court immediately thereafter. Subject to the same, the
Criminal Petition is dismissed.
____________________________    
SAMUDRALA GOVINDARAJULU,J        
Dt. 6th August, 2012

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