Order in Criminal Petition No. 3590 of 2011, High Court of Karnataka

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 18TH DAY OF JULY 2011 BEFORE THE HON'BLE MR JUSTICE K N KESHAVANARAYANA CRIMINAL PETITION No. 3590/2011 ALONG WITH MISC.CRL.NO.3757/11

BETWEEN: SRI.NITHYANANDA SWAMY, FORMERLY KNOWN AND CALLED AS SRI.THIRU RAJASHEKARAN, AGED ABOUT 33 YEARS. S/O LATE ARUNACHALAM, RESIDING AT NITHYANANDA DHYANAPEETAM, KALLUGOPANAHALLI VILLAGE, BIDADI HOBLI,RAMANAGAR TALUK, .. PETITIONER RAMANAGAR DISTRICT. (BY SRI.C.V.NAGESH, SENIOR COUNSEL)

AND: STATE OF KARNATAKA. BY THE STATION HOUSE OFFICER, BIDADI POLICE STATION, RAMANAGAR DISTRICT. 2. THE SUPERINTENDENT OF POLICE, SPECIAL ENQUIRIES, C.I.D .. CARLTON HOUSE.PALACE ROAD. .. RESPONDENTS BANGALORE. (BY SRI,VIJAYAKUMAR MAJAGE, HCGP FOR R-1; SRI.C.H.JADHAV. SPECIAL PUBLIC PROSECUTOR FOR R-2)

=== Page 2 === 2 THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO REVERSE AND SET ASIDE THE ORDER PASSED ON THE APPLICATION FILED IN C.C.No.204/2010 ON THE FILE OF THE CJM., RAMANAGARA DISTRICT, RAMANAGAR, UNDER SECTION 457/451 OF THE CODE OF CRIMINAL PROCEDURE. INSOFAR AS IT RELATE TO THE DIRECTIONS GIVEN TO THE PETITIONER NOT TO VISIT ANY OTHER PLACE OTHER THAN MANASA SAROVAR BY USING HIS TRAVEL DOCUMENT I.E., PASSPORT BEARING NO.Z1864348 AND FURTHER REQUIRING HIM TO RESUBMIT THE PASSPORT TO THE COURT ON 21.07.2011 AND FURTHER BE PLEASED TO MAKE THE INTERIM CUSTODY OF THE PASSPORT GRANTED TO THE PETITIONER. MISC CRL.NO.3757/11 IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO STAY THE OPERATION OF THE ORDER DATED 20.06.2011 PASSED BY THE CJM., RAMANAGARA DISTRICT, RAMANAGAR, ON THE APPLICATION FILED BY THE PETITIONER UNDER SECTION 457/451 OF THE CODE OF CRIMINAL PROCEDURE, IN C.C.NO.204/2010. INSOFAR AS IT RELATE TO THE CONDITION PROHIBITING THE PETITIONER FROM VISITING ANY OTHER PLACE OTHER THAN MANASA SAROVAR BY USING HIS TRAVEL DOCUMENT AND FURTHER REQUIRING THE PETITIONER TO RESUBMIT HIS TRAVEL DOCUMENT I.E .. THE PASSPORT TO THE COURT ON 21.07.2011. THIS CRIMINAL PETITION ALONG WITH MISC! CRL.No.3757/11 COMING FOR DICTATING ORDERS ON THIS DAY, THE COURT MADE THE FOLLOWING: ORDER

Accused No.1 in C.C. No.204/2010 on the file of the Civil Judge (Sr.Dn.) and CJM, Ramanagara District, has presented this criminal petition seeking to set aside the order dated 20.06.2011 passed on the application filed

=== Page 3 === 3 under Section 457/451 of Cr.P.C. insofar as it relates to the directions given to the petitioner not to visit any other places other than Manasa Sarovara by using his travel document-Passport and further requiring him to re- submit the passport to the Court on 21.07.2011.

2) During the course of investigation in Crime No. 141/2010 of Bidadi Police Station, the petitioner herein was apprehended and at the time of the arrest, it appears, the passport which was on his person was seized by the Investigating Officer as a property with the person arrested and later, it was subjected to PF. At the time of filing of the charge sheet, the passport was also submitted to the Committal Court. The petitioner herein after obtaining the relief of bail, sought relaxation of the condition imposed in the bail order passed by this Court in Criminal Petition No.2328/2010 and sought permission to visit Manasa Sarovara and other places. This Court by order dated 21.04.2011 passed on Misc. Crl. 2232/2011 filed in Criminal Petition No. 2328/2010 permitted the petitioner to leave the jurisdiction of the Court for the

=== Page 4 === 4 purpose of visiting Manasa Sarovara and other places and directed him to return back by the end of July 2011 and thereafter, to continue to mark his presence before the jurisdictional police station once in a month as ordered earlier. After passing of this order, the petitioner filed application under Section 451 of Cr.P.C. before the learned Magistrate seeking interim custody of the passport seized from his possession. The said application was opposed by the prosecution. After hearing both sides, the learned Magistrate by the order dated 20.06.2011, allowed the application in part, ordered return of the passport to the petitioner. However, the petitioner was directed to utilize the passport only to go to Manasa Sarovara and to come back. The learned Magistrate further directed that the petitioner shall not utilize the passport to go to any other destination, in default of which, the same would be impounded. The petitioner was further directed to appear before the said Court without fail and return the passport to the Court on 21.07.2011. The learned Magistrate further observed that. in the event of failure on the part of

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petitioner No.1 to return the passport to the court. necessary action will be taken for cancellation of the bail. Aggrieved by the said order, the petitioner/Accused No.1 has presented this petition for the reliefs noted supra. As the time granted by this Court for visiting Manasa Sarovara and other places and to return back was expiring and since he could not undertake the said journey on account of not delivering the passport to his custody by the concerned Court, he filed application -Misc. Crl. 4062/2011 in Criminal Petition No.2328/2010 for extension of time. The petition as well as application are opposed by the prosecution inter alia on the ground that the petitioner in the guise of visiting Manasa Sarovara is trying to go abroad to intimidate the victim. who is a citizen of united states of America therefore, the order passed by the learned Magistrate restricting his movement only upto Manasa Sarovara is just and proper. I have heard Sri.C.V.Nagesh. Senior Advocate appearing for petitioner/applicant and Sri.C.H.Jadhav. Special Public Prosecutor for Respondent.

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3) It is the submission of the learned Special Public Prosecutor that the permission accorded by this Court to visit Manasa Sarovara and other places would mean only such places which are on the way to Manasa Sarovara and not beyond Manasa Sarovara, therefore, there is no illegality or infirmity in the order passed by the learned Magistrate in restricting the movement of the petitioner only upto Manasa Sarovara. He also contended that the petitioner is not entitled for the interim custody of the passport as he is likely to misuse the same and flee away from justice by going out of the country with the help of the said pass port. 4) 1 have bestowed my serious considerations to the submissions made on both sides. It is pertinent to note that while granting bail to the petitioner this court has not imposed the condition that the petitioner should surrender his passport. As noticed supra, the passport appears to have been seized by the Investigating Officer while apprehending and arresting the petitioner, since the passport was on the person of the accused at that time.

=== Page 7 === 7 It is not the case of the prosecution that this passport is an incriminating material used in the commission of the offence. It is now well-settled law by catena of decisions of the Apex Court that the authority to impound passport is vested only with the authorities under the Passport Act and nobody else. No Court including the High Court is competent to order for impounding passport. In the case on hand. it is submitted by the learned Senior Counsel appearing for the petitioner that, in fact, the Investigating Officer moved the authorities under the Passport Act for an order to impound the passport and the said attempt failed. However, no document is produced to substantiate the said contention. Be that as it may, as noticed supra, the passport is not an incriminating material in the case nor the prosecution has placed any material to indicate that the authorities under the Passport Act have ordered impounding of passport. Therefore, in my opinion, the learned Magistrate is not justified in threatening impounding of the passport in the event of the petitioner not returning to the jurisdiction of that Court from

=== Page 8 === 8 Manasa Sarovara on or before 21s July 2011. Even the direction issued by the learned Magistrate directing the petitioner to appear before the Court and return the passport to that Court on 21.07.2011 runs contrary to the order passed by this Court on application-Misc. Crl. 2233/2011 filed in Criminal Petition No. 2228/2010. In the said order, this Court has granted permission to the petitioner to leave the jurisdiction of the Court for the purpose to visiting Manasa Sarovara and other places, and he was directed to return back by the end of July 2011. While this Court has granted time upto the end of 31st July 2011 for the petitioner to go to Manasa Sarovara and come back, the learned Magistrate by the impugned order has restricted that period to 21.07.2011 only. This direction of the learned Magistrate is contrary to the order of this Court and it is uncalled for. The further observations of the learned Magistrate that in the event of failure by Accused No. 1 to return passport. necessary action will be taken for cancellation of bail is also unjust and uncalled for, in the facts and circumstances of the

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case. It is necessary to note that the relief of bail was granted to the petitioner by this Court, therefore, it is only this Court or a superior Court can order cancellation of the bail and it is not for an inferior criminal court to cancel the bail granted by a superior Court.

5) The Apex Court in P.K. Shaji @ Thammanam Shaji Vs. State of Kerala [ (2005) 13 SCC 283] had an occasion to consider this aspect of the matter and has held that, as a general proposition, the bail granted by a Court can be cancelled either by the very same Court or any Court higher to it and not by an inferior to that Court. Therefore, the observation of the learned Magistrate in this regard is uncalled for.

6) Having regard to the facts and circumstances of the case, the learned Magistrate is not justified in restricting the period of visit to Manasa Sarovara and threatening further actions on failure of the petitioner to return to the jurisdiction of the Court on or before 21.07.2011. The interpretation by the learned Magistrate

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that the petitioner should go only to Manasa Sarovara and return back and not to visit any other place is again contrary to the orders of this Court. This Court, as noticed supra, permitted the petitioner to visit Manasa Sarovara and other places and return back by the end of July 2011.

7) The argument of Sri. C.H. Jadhav that the permission granted by this Court to the petitioner to visit Manasa Sarovara and other places would mean only such places which are on the way to Manasa Sarovara and not beyond Manasa Sarovara though is very much attractive but that is not intended by this Court. The permission was sought by the petitioner to go to Manasa Sarovara and other places. This Court has granted permission for the petitioner to visit Manasa Sarovara and other places. If the intended permission was only to visit Manasa Sarovara and to come back, there was no need to observe that he is permitted to visit Manasa Sarovara and other places. To go to Manasa Sarovara. obviously, one has to go through several places. He may be required to cross

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the Indian border and cross over to border of neighbouring countries. Therefore, the permission granted by this Court for visiting Manasa Sarovara and other places do not mean that only places which are on the way to Manasa Sarovara. The restriction was the time within which he was required to come back by the end of July 2011. Therefore, the learned Magistrate is not justified in holding that the petitioner should visit only Manasa Sarovara and come back, and not other places.

8) Though this Court accorded permission to the petitioner on 21.04.2011 and immediately thereafter, the petitioner moved the learned Magistrate for interim custody of the passport, the learned Magistrate has taken nearly 112 months to pass orders thereon. By the date the learned Magistrate disposed of the application on 20.06.2011, the petitioner was not left with sufficient time to apply to the authorities for Visa and undertake journey to Manasa Sarovara and other places and come back before the end of July 2011. Under these circumstances, it is just and necessary to extend the time for the

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petitioner to visit Manasa Sarovara and other places. However, it is made clear that the petitioner shall not in any way use this visit to either intimidate or threaten any of the witnesses residing overseas.

9) Having regard to the facts and circumstances of the case, it is just and necessary to extend the time for visiting Manasa Sarovara and other places upto the end of December 2011 and accordingly, the time is extended. The condition for marking attendance in the jurisdictional police station once in a month is kept in abeyance till the end of December 2011. If the petitioner undertakes the journey to Manasa Sarovara and other places within the extended period, the condition imposed by this Court regarding marking of attendance once in a month in the jurisdictional police is kept in abeyance. However, if he does not undertake the journey to Manasa Sarovara during this period. he shall abide by the said condition. The passport now in the custody of the court shall be given to the interim custody of petitioner and the petitioner shall re-deposit the passport with the

=== Page 13 === 13 jurisdictional Magistrate on or before 31.12.2011. The question as to whether the petitioner is entitled for interim custody of passport is deferred for the time being. With the above observations, this Criminal Petition as well as Crl. Misc. No. 3757/2011 filed for stay, are disposed of.

Sd/- JUDGE

KGR*

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KNKJ: 23.01.2012 CRL. PETITION No. 3590/2011

ORDER ON 'BEING SPOKEN TO'

Heard Sri. C.V. Nagesh, learned Senior Counsel appearing for the appellant.

At the end of penultimate para of the order dated 18.07.2011 this Court has observed that, the question as to whether the petitioner is entitled for the interim custody of passport is deferred for the time being. However in the last paragraph, instead of disposing of the Criminal Misc. No.3757/2011. in the light of the observations, the criminal petition has also been disposed of. Thus, the disposal of the criminal petition is not in consonance with the observations made in the previous paragraph of the order. Having kept the question of the entitlement of the petitioner to get the interim custody of the passport deferred for the time being. the criminal petition could not have been disposed of without deciding the matter in one way or the other. Therefore, the order dated 18.07.2011 is

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modified to the effect that the application filed in Criminal Misc. 3757/2011 is disposed of in the light of the observations made in the course of the order.

In the light of the observations made in the course of the order, the learned Magistrate is not justified in rejecting the application for interim custody of the passport, which is admittedly not an incriminating material for the commission of the alleged offences. Therefore, the order impugned in this petition deserves to be set aside. However, the question as to whether the petitioner is entitled for the interim custody of the passport is required to be decided by the learned Magistrate afresh in the light of the observations made in the course of the order dated 18.07.2011.

In view of the above, the petition is disposed of. The order impugned in this petition is set aside. The learned Magistrate is directed to consider the application filed by the petitioner for interim custody of the passport afresh in the light of the observations made in the course of the

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order dated 18.07.2011 and pass appropriate orders in accordance with law as, expeditiously as possible. Sd/- JUDGE

KGR*