Nahas.N vs State Of Kerala

C.Jayachandran, J

Annexure-A6 order of the Judicial First Class Magistrate Court, Kalamassery, which refused the petitioner's application (C.M.P.No.51/2024 in Crime No.937/2023 of Kalamassery police station) seeking the permission to go abroad is under challenge in this Crl.M.C. The facts are as follows:

The petitioner is the sole accused in Crime No.937/2023 of Kalamassery police station for offences under Section 376, 376(2)(n), 354(B) and 506 of Indian Penal Code. The allegation is that the petitioner had committed rape on the defacto complainant by extending a false promise of marriage at various places in Ernakulam, Munnar, Kanyakumari etc. By Annexure-A2 order, this Court granted pre-arrest bail to the petitioner. One among the bail conditions was that the petitioner shall surrender his Passport before the trial court, which was complied with.

The petitioner filed Crl.M.P.No.51/2024 seeking permission to go abroad in connection with his job at Al Ain Oasis Drinking Water Purification, U.A.E. However, the same was dismissed by the learned Magistrate holding that there is every chance of the accused absconding, if he is permitted to go abroad.

Having heard the learned counsel for the petitioner and the learned Public Prosecutor, this Court finds that this Crl.M.C. is liable to be allowed. Judicial notice is taken in respect to the fact that the final report in the crime has not been filed yet. Therefore, there is no prospects for commencement of trial in the immediate future. The petitioner has produced photostat copies of the relevant pages of his passport vide Annexure-A4, which would indicate that the petitioner is a factory worker under the employer, Al Ain Oasis Drinking Water Purification. It cannot be contemplated that the petitioner cannot go for a job, so as to eke his livelihood, only for the reason that he is accused in a crime. The legal position in this regard is settled by this Court in the decisions in Ashok Kumar v. State of Kerala [2009 (2) KLT 712] and Muhammad v. State of Kerala [2012 (4) KLT 655]. These judgments were followed in Crl.M.C.No.3582/2015 by a learned Single Judge, whereby the passport was released to the petitioner to travel abroad.

In the circumstances, Annexure-A6 order will stand set aside. The petitioner is permitted to go abroad in pursuit of his job at Al Ain Oasis Drinking Water Purification, U.A.E., for which purpose, the Jurisdictional Magistrate will release the petitioner's passport, subject to the following conditions:

i) The petitioner will swear to an affidavit undertaking that he will appear before the Investigating Officer, as also, before the trial court, as and when required by the authority concerned in writing.

ii) The petitioner will disclose in that affidavit his mobile number, as also the e-mail ID, specifically undertaking that a message sent to the mobile number or to his e-mail ID will tantamount to sufficient notice in respect of any matter in connection with the above referred crime to be made by the Investigating Officer or by the trial court.

iii) The petitioner shall execute a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties, each for the like sum to the satisfaction of the trial court.

iv) The petitioner should deposit a sum of Rs.1,00,000/- (Rupees One Lakh only) before the trial court towards security for his return as and when required by the court.