Abhishek vs State of Madhya Pradesh and others

Hon''ble Shri Justice Sujoy Paul

In this writ petition the petitioner has challenged the order dated 2.4.2012, whereby his application dated 27.3.2012 preferred under sections 451 and 457 of Cr. P.C. is rejected by the court below. The petitioner is an accused before the court below pursuant to FIR, Annexure P-2. The said case was lodged against the petitioner pursuant to a complaint by his wife for the alleged offence under sections 498-A, 506 and 34 IPC. The aforesaid application was preferred by the petitioner on the ground that he is an IT Engineer and was working in Pune with a Multi-National Company and in the course of employment he is required to travel abroad for various assignments for short duration of 5 to 8 months. Between 2008 to 2011 the petitioner has travelled abroad for three times. The petitioner was arrested pursuant to aforesaid FIR and after release on bail on 14.7.2011 he took up another job with another Multi-National Company at Chennai. This nature of job of the petitioner also compels him to travel abroad frequently for short duration. He submits that the case of the petitioner is that the court below although allowed the application but imposed a condition which is not practical in nature and it infringes his fundamental right. The main contention of the petitioner is that the court below has imposed a condition whereby the petitioner is directed to deposit a "Supurdiginama" of Rs. 20000/- and also security of the like amount with the condition that he will not use the passport for going abroad without the leave of the court during pendency of the matter. He will leave India only after seeking permission from the court and while granting such permission, the court will provide him passport on interim basis.

Learned Counsel for the petitioner submits that going abroad is a condition of service for him. To travel as per his wish and as per his business necessities is fundamental right flowing from Articles 14 and 19 of the Constitution of India. To elaborate, Shri Ankur Mody submits that the petitioner is posted at Chennai. On any fine morning he may be directed by the company/employer to go to Singapore (for example) or any other place forthwith, in that eventuality, as per the order impugned the petitioner has to come down to Gwalior, prefer an application before the court below seeking permission, obtain permission then only can materialize his visit to abroad. He submits that in private employment this is practically impossible because business assignments do not wait for a long time. On short notice petitioner may be required to go outside. In other words, Shri Mody submits that the condition imposed by the court below in fact amounts to denial of benefit of passport because it is totally impracticable to obtain permission on every occasion when he is required to go abroad.

I have heard Learned Counsel for the parties and perused the record.

The petitioner has not chosen to file copy of the application under sections 451 and 457 Cr. P.C. before this Court, which was decided by the court below. The impugned order does not reflect whether the same argument was advanced by the petitioner before the court below. In other words, neither the averments of the application are before this Court nor from the impugned order it is clear whether the same contention was advanced by the petitioner before the court below. The only contention which is dealt with by the court below is whether non-refund of passport will deprive him from his rights flowing from Articles 14 and 21 of the Constitution. On the basis of aforesaid submission the court below has not totally deprived the petitioner to take the benefit of passport. It only imposed certain conditions pursuant to which the said benefit of passport can be enjoyed by the petitioner.

Reliance was placed on Gian Singh Vs. State of Rajasthan, by Shri Ankur Mody. In the said case the Apex Court interfered in order to avoid irreparable suffering to the petitioner. In my considered opinion, in the fitness of things, the petitioner should address the court below on this subject. At the cost of repetition, as stated above, it is not clear whether the petitioner has addressed on the aforesaid issue. The court below is also required to apply its mind on this issue whether the condition imposed on the petitioner by order dated 2.4.2012 has an impact of denial of any right to the petitioner and whether such conditions are impracticable.

Considering the aforesaid, I deem it proper to remit the matter back before the court below to deal with the aforesaid facet in extenso. The court below shall deal with this aspect and take into account the judgment of Supreme Court in Gian Singh''s case (supra) and decide it in accordance with law.

Considering the aforesaid, the order dated 2.4.2012 is set aside. The matter is remitted back to the court below to rehear the parties on the application under sections 451 and 457 of Cr. P.C. and pass appropriate orders in view of the observations made above and in accordance with law. It be noted that this Court has not expressed any opinion on the merits of the case. Petition is disposed of. No costs.