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Judgment
LOK PAL SINGH, J. (ORAL)
Present criminal misc. application under Section 482 of Cr.P.C. has been filed by the applicant seeking following relief:-
“direct the Registrar General of this Hon’ble Court to return the passport of the applicant to him, which was deposited by the applicant in terms
of the order dated 29/07/2011 passed by this Hon’ble Court in WPCRL No.632 of 2011.â€
Briefly stated the facts of the case are that on 29.04.2011 some representation was made by Shri Acharya Pramod Krishnam of Haridwar
addressed to the Hon’ble President of India alleging therein that the petitioner is not an Indian Citizen rather he is a citizen of Nepal and has
surreptitiously obtained an Indian passport while living at Haridwar with the help of forged documents. The representation was forwarded to the office
of the Department of Personal and Training, which in turn was forwarded to the Central Bureau of Investigation; however, no directions were issued
by the Government of India to lodge the FIR and to investigate the matter against the present applicant. Representation made by Shri Acharya
Pramod Krishnam came in the office of the Central Bureau of Investigation. C.B.I. lodged a criminal complaint against the applicant which was
registered as FIR No.RC0072011S0008 on 24.07.2011 under Sections 120-B, 420, 468, 471 IPC and under Section 12 of the Passport Act, 1967 for
criminal conspiracy, cheating, forgery of valuable security, forgery for the purpose of cheating, using forged documents as genuine and false
information or suppression of material facts for obtaining an Indian passport.
Against lodging of the FIR, by C.B.I., the applicant was constrained to file the Writ Petition No.632 of 2011 “Acharya Bal Krishna Vs. C.B.I. &
another, for quashing the FIR lodged by the C.B.I. and seeking interim protection that the C.B.I. may not arrest the petitioner in connection with the
aforesaid FIR.
This Court vide order dated 29.07.2011 granted an interim protection in favour of the applicant that the respondents shall not arrest the applicant
during the investigation. While granting the interim protection to the applicant, this Court has passed the following order:-
“In the light of the aforesaid, the Court hereby directs the respondents not to arrest the petitioner during the investigation. The petitioner is directed
to appear before the C.B.I. Office at Dehradun on 3rd August, 2011 at 11:00 a.m. and cooperate in the investigation. It is further directed that during
the investigation, the petitioner will not leave India and that he will deposit his passport before the Registrar General of this Court on or before 5th
August, 2011.
 Certified copy of the order shall be made available to the parties within 24 hrs. on payment of usual charges.
Registry is directed to place a copy of this order before the Registrar General for necessary information and action.â€
Pursuant to the order dated 29.07.2011 the applicant submitted his passport before the Registrar General of this Court. The C.B.I. after completion
of investigation submitted the charge-sheet on 10.07.2012.
On receipt of the charge-sheet, the C.B.I. issued summons to the applicant to surrender before the Special Judge, C.B.I. and on his surrender, he
was sent to judicial custody. A bail application No.951 of 2012, Acharya BalKrishna Vs. State through C.B.I., was preferred before this Court. This
Court vide order dated 16.08.2012 has been pleased to allow the bail application and the applicant was enlarged on bail on executing a personal bond
and furnishing two sureties each of like amount to the satisfaction of the Magistrate concerned. It was further ordered that any observation made by
this Court touching the merits of the case is only tentative and would not be relied upon by any of the parties, nor the Trial Court would be influenced
by such observations.
The learned Magistrate, C.B.I. framed the charges under Sections 420, 468, 471 and 120B IPC and Section 12 of the Indian Passport Act, vide
order dated 30.10.2013.
Feeling aggrieved, the applicant preferred a Criminal Revision No.284 of 2013 before the Sessions Judge, Dehradun. Learned Sessions Judge,
Dehradun vide order dated 09.06.2014 has been pleased to allow the revision in part and modified the charge so framed. Thereafter, on 29.08.2014
the charges were altered pursuant to the order dated 09.06.2014 passed by learned Sessions Judge in Criminal Revision. The charges were altered
under Section 12(1) (B) of the passport Act and Section 471 of IPC.
Feeling aggrieved by order dated 09.06.2014 the C.B.I. preferred a criminal misc. application under Section 482 Cr.P.C. This Court pleased to
dispose of the misc. criminal application vide order dated 05.01.2016 with the following observationsâ€
“If charges are altered or additional charges are framed by the learned Trial Court, it goes without saying that learned Trial Court while exercising
the power under Section 217 of the Code of Criminal Procedure shall recall the witnesses.â€
During pendency of the trial against the applicant before Special Magistrate C.B.I., the applicant was willing to go abroad and he filed an
application being application No.C-482 No. 518 of 2018 before this Court for release of passport. This Court passed the following order:-
“U.C. Dhyani, J.
Mr. S.K. Agrawal, Sr. Advocate assisted by Mr. Apoorva Agrawal and Mr. Swapnil Bisht, Advocates for the applicant.
Mr. Arvind Vashisth, Sr. Advocate assisted by Mrs. Monika Pant, Advocate for respondent CBI.
Heard learned counsel for the parties, perused the documents available on record, as also the grounds taken up in the application under Section 482
Cr.P.C.
C-482 petition no. 210 of 2015 and C-482 petition no. 423 of 2015 were earlier disposed of by this Court vide orders dated 23.02.2015 and 17.04.2015,
respectively.
Learned Sr. Advocate representing the applicant submitted that the applicant, being Secretary General of the Patanjali Yog Peeth Trust in India and a
Trustee in Nepal’s Trust established in said country, wants to supervise the ongoing rescue and rehabilitation work in Nepal in the wake of
devastating earthquake that rocks Nepal very recently.
This Court is of the view that since earlier C-482 petitions were disposed of and the applicant was permitted to visit Nepal for specific period of time,
therefore, present application under Section 482 Cr.P.C. should also be disposed of in the same terms at the admission stage itself by permitting the
applicant to visit Nepal, as per rules, for the period 15.05.2015 to 15.06.2015. Applicant shall report to the trial court on 16.06.2015 that he has
returned to India.
With the above direction, present petition under Section C-482 stands disposed of.â€
From time to time permission was sought by the applicant by filing criminal misc. applications under Section 482 of Cr.P.C. before this Court for
release of his passport. However, he was only permitted to visit Nepal.
After perusal of material available on record, it would reveal that the passport of the applicant was directed to be submitted before the Registrar
General of this Court with a further condition that he will not leave India during pendency of investigation, pursuant to order dated 29.07.2011, passed
in WPCRL No. 632 of 2011, at the time of granting stay in favour of the applicant that he will not be arrested during the course of the investigation.
The aforesaid Writ Petition was disposed of by this Court finally.
It is contended by the learned counsel for the applicant that now, the investigation is over, charges have already been framed and trial is going on
and the applicant has already been enlarged on bail. The C.B.I. has not contended in the counter affidavit that the applicant ever misused the bail
granted to him. It is further contended that the applicant is renowned person and has no criminal history at all. It is further contended that the applicant
who is renowned person and has contributed to the country in the field of Ayurveda and running a huge business. Mr. H.C. Bisht, learned counsel
appearing for the applicant would further submit that any original document is not the part of the investigation and investigation is going on the basis of
photocopy of the document. Vide order dated 29.07.2011, directions were issued by this Court to the applicant not to leave India during the course of
investigation and by that time the passport shall remain with the Registry of this Court. Further on subsequent criminal misc. applications (C-482)
petition no. 210 of 2015 and C-482 petition no. 423 of 2015 filed by the applicant for release of the passport and permission to visit Nepal, permission
was granted to him to visit Nepal. Learned counsel for the applicant contended that directions were issued by this Court to the applicant not to leave
India during the course of investigation and by that time the passport shall remain in the Registry of this Court, however, as charge sheet had been
submitted, the order passed by this Court was not effective and Registry of this Court ought to have returned the passport without any application also.
It is further contended that neither this argument was earlier raised nor the same was considered by this Court.
Article 21 of the Constitution of India provide protection of life and personal liberty-“no person shall be deprived of his life or personal liberty
except according to procedure established by lawâ€. Right to life means “right to live with dignityâ€
Right to Live with Dignityâ€"Article 21, 39(e), (f), 41 and 42 has been meant to ensure a life with human dignity. Right to live with human dignity
enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles
41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of
children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational
facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person
to live with human dignity and no Stateâ€"neither the Central Government nor any State Governmentâ€"has the right to take any action which will
deprive a person of the enjoyment of these basic essentials, Bandhua Mukti Morcha V. Union of India, (1984) 3 SCC 161, 183, 184 and Bandhua
Mukti Morcha V. Union of India, (1991) 4 SSC 177.
On perusal of the order dated 29.07.2011, it would reveal that the order was effective only during the course of the investigation. In view of this
Court, the Registrar General of this Court ought to have released the passport immediately after completion of the investigation. In my view, retention
of the passport is without any authority as there is no order passed by this Court to retain it.
The Hon’ble Apex Court in the case of Mrs.Maneka Gandhi Vs. Union of India and Another reported in (1978) 1 SCC 248 has held that
right to travel abroad is a fundamental right and it cannot be curtailed by any restriction unless the reasons are be recorded for not permitting particular
person to visit abroad. The relevant paragraphs are extracted as under:-
“188 .In view of the statement that the petitioner may make a representation in respect of impounding of passport and that the representation will
be dealt with expeditiously and that even if the impounding of the passport is confirmed it will not exceed a period of six months from the date of the
decision that may be taken on the petitioner’s representation, it is not necessary for me to go into the merits of the case any further. The Attorney
General assured us that all the grounds urged before us by the petitioner and the grounds that may be urged before the authority will be properly
considered by the authority and appropriate orders passed.
In the result, I hold that that the petitioner is not entitled to any of the fundamental rights enumerated in Article 19 of the Constitution and that the
Passports Act complied with the requirements of Article 21 of the Constitution and is in accordance with the procedure established by law. I construe
Section 10(3)(c) as providing a right to the holder of the passport to be heard before the passport authority and that any order passed under Section
10(3) is subject to a limited judicial scrutiny by the High Court and the Supreme Court.â€
The learned counsel for the applicant has further placed reliance on the judgment passed by this Court on 10.07.2018 in C-482 No. 1130 of 2018,
Pooran Singh Fartiyal Vs. State of Uttarakhand and others and on 13.07.2018 in WPMS No. 1955 of 2018, Janmejai Tiwari Vs. Union of India and
another, wherein the same controversy has already been decided by this Court. Wherein this Court has held that without reasonable and justified
reason personal liberty of the person should not be curtailed by not giving the permission to visit abroad.
The trial under Section 471 IPC and under Section 12 of the Passport Act, 1967 is pending before Special Judicial Magistrate, CBI whereof
pursuant to the order dated 29.07.2011, the passport of the applicant is lying with the Registrar General of this Court.
Having considered the rival submissions of the learned counsel for the parties and perusal of the record, it is found that there is no order brought
on record showing that there is an unfettered directions of this Court that the passport of the applicant shall remain with the Registrar General of this
Court for unlimited period. Also considering the fact that the charges framed against the applicant are not grave in nature and the applicant is a well-
known dignitary and is running a huge business empire in the country and there is no apprehension of his absconding or not coming back to India, if he
is permitted to go abroad and his passport be released.
Section 10(3) (a) of Passport Act provides suspension of passport or travel documents in certain cases Section 10(3)(a) is extracted hereunder:-
“if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof;â€
Admittedly no order under Section 10(3) (c) has been passed by the passport authority.
It is contended that since the passport of the applicant is lying with the Registrar General of this court the same could not be renewed, therefore, a
direction be also issued to the passport authority to review the passport.
Considering the entire conspectus of things, this Court is of the firm opinion that the passport of the applicant lying with the Registrar General of
this Court pursuant to the order dated 29.07.2011 should be released in his favour on the following conditions.
(i) The passport authority shall renew the passport of the applicant after completing the necessary formalities as required by the passport office.
(ii) The passport authority after renewal of the passport shall release the passport in favour of the applicant.
(ii) However, passport authority would be at liberty that, in case, any undertaking from the applicant is required at the time of releasing the passport,
while he is visiting abroad, the passport authority may take undertaking on affidavit that the applicant after his return from abroad will inform regarding
the same to the passport authority.
Registrar General of this Court is directed to return the passport of the applicant to him or his authorized agent within a period of 10 days.
With the above directions, the criminal miscellaneous application filed under Section 482 Cr.P.C. is disposed of.