Dennise E. Fernandez vs State of Kerala

K. Ramakrishnan, J.—This Criminal Miscellaneous Case is filed by the petitioner, who is the accused in Crime No. 736/2013 of Kundara police station, challenging the order in CMP. No. 535/2014 of the Judicial First Class Magistrate Court, I, Kollam u/s 482 of the Code of Criminal Procedure.

It is alleged in the petition that the petitioner is the sole accused in Crime No. 736/2013 of Kundara police station and also the sole accused in Crime No. 2477/2013 of the same police station. In Crime No. 736/2013 of Kundara police station, the allegation was that he had committed the offence punishable under Sections 294(b), 323 and 307 of the Indian Penal Code and he was granted bail by the Sessions Judge, Kollam as per Annexure A order. When he was arrested in connection with another crime as Crime No. 2477/2013 of the same police station his passport was seized by the police and produced before the court. There was no condition imposed by the Sessions Judge not to leave State of Kerala or to surrender the passport as well. So the petitioner filed CMP. No. 535/2014 for release of his passport in order to enable him to go abroad to pursue his employment. The learned Magistrate by Annexure-B impugned order, dismissed the application. This is being challenged by the petitioner by filing this petition.

The learned counsel for the petitioner submitted that the reason stated by the learned Magistrate for not releasing the passport is unsustainable in law. There is no violation of condition committed by the petitioner as imposed by the Sessions Court while granting bail in Crime No. 736/2013 of Kundara police station and he was not restrained from going abroad as well. When he was arrested in connection with Crime No. 2477/2013 of Kudara police station which was registered against him alleging offences under Sections 451 and 309 of the Indian Penal Code, the police had seized his passport and produced the same before the court. So, the observation made by the Magistrate in the order that he had violated the conditions of bail is not correct. Further, when there is no condition not to leave, there is no necessity to keep the passport for a longer period. So, according to the learned counsel, the order passed by the court below is unsustainable and the same is liable to be set aside and he will have to be given the passport to enable him to go abroad to pursue his employment.

On the other hand, the learned Public Prosecutor submitted that after the commission of the earlier crime, he came and committed another crime also and if the passport is released, he is likely to abscond and he will not be available for interrogation etc. as the investigation is still in progress.

I have considered the contentions of both the parties.

It is an admitted fact that the petitioner has been arrayed as an accused in Crime No. 736/2013 of Kundara police station alleging offences under Sections 294, 323 and 307 of the Indian Penal Code and he was arrested and later he was granted bail as per Annexure A order. It is seen from Annexure A order that there is no condition not to leave the station, but what is stated is only that he shall appear before the investigating officer on every Friday between 10 a.m. and 12 noon until further orders or final report whichever is earlier and co-operate with the investigation and shall not commit similar offences during bail. It is also an admitted fact that there was no condition in the bail order to surrender the passport as well. So there is no restriction for the petitioner to go abroad using the passport though he was on bail and the Public Prosecutor had no case that he had violated any of the conditions imposed by the Sessions Judge except the fact that he had involved in another crime of attempting to commit suicide for which Crime No. 2477/2013 was registered and he was arrested in connection with that crime. Since it is a bailable offence, he was granted bail as well by the police. But at that time, his passport was seized and produced before the court. Now he wanted to go abroad to pursue his employment.

I have called for a report from the Judicial First Class Magistrate Court-I, Kollam as to whether final reports have been filed in Crime Nos. 736/2013 and 2477/2013 and a report has been received, in which it has been stated that no final report has been filed in both the cases. It is not known as to how much time will take for investigation to complete and also the trial to complete as well. Merely because a person has been involved in a crime cannot be denied the opportunity to go abroad to pursue for his employment and the court must ensure the presence of the accused for the purpose of cooperating with the investigation and also disposal of the case at the time of trial. So this Court feels that dismissal of the application filed by the petitioner to release the passport as such appears to be not correct. But, at the same time, the court must have imposed some conditions for releasing the passport or limiting the period for going abroad to ensure his presence for the investigation of the case to go smoothly. So, considering the circumstances, this Court feels that the petition can be disposed of as follows:

If the petitioner applies to the court below for releasing the passport for a specific period specifying the purpose for which he wants the passport and seeking permission to go abroad, then the learned Magistrate is directed to consider and dispose of that application fixing the period and also on conditions on which it can be granted in view of the dictum laid down in the decision reported in Asok Kumar v. State of Kerala (2009 (2) KLT 712) and Muhammed Vs. State of Kerala, as expeditiously as possible, at any rate, within two weeks from the date of filing of the application and before that he must get relaxation of the condition to appear before the Investigating Officer from the Sessions Court. Further, the petitioner is at liberty to approach the Sessions Court for relaxation of the condition to enable him to go abroad for that purpose as well. If the petitioner has violated the condition to appear before the investigating officer as directed by the Sessions Judge, the Investigating Officer is at liberty to move the Sessions Court for cancellation of the bail. If permitting him to go abroad will result in violation of the bail order, he cannot go abroad without getting relaxation of such condition namely appear before the Investigating Officer as stated in the bail order from the Sessions Court.

With the above directions and observations, the petition is disposed of.