Brijesh Singh and anr. Vs. State by All Women Police Station, Ulsoorgate, Bangalore and ors. - Court Judgment

Mohamed Anwar, J.

1. Brijesh Singh, petitioner in Cr. P. No. 2571 of 2001, is A-l in Crime No. 12 of 2001 of Ulsoorgate Women's Police Station booked against him and his four relatives for the offences under Section 498-A read with Section 109, under Section 506 of the IPC and under Sections 3 and 4 of the Dowry Prohibition Act. on the complaint of his wife Smt. Sharmila. lodged with the police on 11-6-2001. He has filed the petition under Section 439(l)(b) of the Cr. P.C. praying to set aside the order dated 26-7-2001 in Cr. R.P. No. 218 of 2001 passed by the learned Principal City Civil and Sessions Judge, Bangalore.

2. Petitioner in Cr. P. No. 2639 of 2001 is the said Smt. Sharmila Brijesh Singh, wife of petitioner in Cr. P. No. 2571 of 2001. She has filed her petition under Section 482 of the Cr. P.C. against the State by Ulsoorgate Police, her husband Brijesh Singh and two others with a prayer to set aside the order dated 12-7-2001 of the 6th Additional Metropolitan Magistrate, Bangalore, and the said order dated 26-7-2001of the learned Principal City Civil and Sessions Judge, Bangalore, insofar as it relates to returning of the passport in question to her husband,

3. Certain relevant facts leading to filing these two petitions may be stated as under;

Petitioner, Brgesh Singh is hereinafter referred to as the 'husband', and his wife Smt. Shannila is henceforth referred to as the 'wife'. The marriage between them had taken place on 13-10-2001. Both are educated and qualified persons. The husband had been employed and was working as Analyst Programmer in an establishment in Sydney, Australia. His official address furnished by a memo filed on 18-10-2001 is as follows:

Mr. Brijesh Singh, Analyst Programmer, Interpro Cri Private Limited, Level 23, 1, Market Street, Sydney, NSW 2000, P.O. Box Q 609 QVB, Sydney, NSW-1230, Australia.

His residential address at Australia given in the memo is as under:

Mr. K. Brijesh Singh, 12-F, 30-34, The Plaza, Churchill Avenue, Strathfeild, NSW - 2134.

In the said memo, he has also furnished his permanent residential address in India and the same is as under:

Mr. Brijesh Singh,Aged 32 years,S/o. Mr. K.R. Kesari Singh,No. 1/30, Main Bazaar,Kurnool,Andhra Pradesh.

4. After marriage, certain irreconcilable differences arose between the spouses. As a result, on 11-6-2001, the wife gave her complaint to the respondent-police against her husband and his four relatives alleging commission of the said offences by them against her. Then the said Crime No. 12 of 2001 was registered against all the accused and investigation was taken up by the concerned Investigating Officer. In course of investigation, the husband was arrested by the police on 12-6-2001 and was produced before the learned Magistrate on 13-6-2001, who remanded him to judicial custody. His passport with visa was also seized from him on 15-6-2001 and was subjected to P.F. No. 1 of 2001. The bail application was filed for him. It was allowed and the Al-husband was released on bail on 16-6-2001 by the learned Magistrate with four conditions. They were:

'1. He shall execute personal bond for Rs. 10,000/- with like sum surety;

2. He shall not leave India till the disposal of this case;

3. He shall not threaten or tamper any of the prosecution witness;

4. He shall appear before the 10 as and when required for investigation'.

5. Thereafter, on 2-7-2001, he filed an application under Section 437(2) of the Cr. P.C. praying to relax the aforesaid bail condition Nos. 2 and 4. Another application under Sections 451 and 457 of the Cr. P.C. was also filed by him praying to release his said passport to his interim custody, Those applications were opposed by the State. They came to be allowed by the learned Magistrate on certain conditions by his common order dated 12-7-2001, which conditions are reproduced below;

'1. He shall execute a bond for Rs. 2,00,000/- with two solvent sureties, shall furnish full address of his relatives who are residing at Bangalore, or nearby for service of his summons and shall appear before Court soon after service of suit summons to the person whose address furnished by him, failing which, his bond will be forfeited without service of notice;

2. Shall not make threatening phone calls directly or indirectly to the complainant or address any threatening letters;

3. The sureties are jointly and severally liable to pay the bond amount, in case the accused failed to appear before Court, soon after service of summons to the address furnished by the accused'.

These conditions in the order dated 12-7-2001 of the learned Magistrate were common conditions both for bail to the accused husband and for delivery of the custody of the passport to him.

6. In terms of the said order, Al-husband furnished for the bail bond with the requisite sureties, and he also took delivery of his said passport and visa.

7. The order of the learned Magistrate releasing the passport to the custody of Al-husband was challenged by the wife in revision before the learned Sessions Judge in Cr. R.P. No. 217 of 2001. Insofar as the learned Magistrate's order relaxing the conditions for bail of the husband is concerned, the same was challenged by the State by filing a revision in Cr. R.P. No. 218 of 2001 before the learned Sessions Judge. Then, the learned Sessions Judge, after hearing the parties, disposed of both the said revision petitions by his common order dated 26-7-2001 in the following terms:

'Both the revision petitions in Cr. R.P. Nos. 217 and 218 of 2001 are partly allowed, thereby the composite order passed by the 6th Additional Chief Metropolitan Magistrate, Bangalore City, in Crime No. 12 of 2001, dated 12-7-2001 insofar as relaxing conditions of bail dated 16-6-2001 is set aside, and the order dated 12-7-2001, allowing the application filed by A-l under Sections 451 and 457 of the Cr. P.C. is confirmed, with the following conditions.-

1. A-l shall execute indemnity bond for Rs. 2,00,000/- with one solvent surety for the like sum, before taking the passport and visa to his interim custody; and

2. He shall surrender passport and visa before the Court whenever called upon to do so.

If A-l has already taken to his interim custody, the passport and visa, he shall execute indemnity bond with one solvent surety for Rs. 2 lakhs, as aforesaid'.

8. By that order of the learned Sessions Judge, the revision petition of the State filed in Cr. R.P. No. 218 of 2001 stood allowed by setting aside the learned Magistrate's order dated 12-7-2001 by which the bail conditions for Al-husband's bail were relaxed, whereas the wife's revision petition in Cr. R.P. No. 217 of 2001 stood, in effect, dismissed. Aggrieved by the order of the learned Sessions Judge, insofar as it related to setting aside of the order of the learned Magistrate dated 12-7-2001 passed relaxing the bail conditions, the husband has now approached this Court with his petition under Section 439(l)(d) of the Cr. P. in Cr. P. No. 2571 of 2001 challenging the validity thereof. Likewise, the wife has also filed her petition in Cr. P. No. 2639 of 2001 under Section 482 of the Cr. P.C. praying to set aside the order of the learned Sessions Judge relating to delivery of passport to her husband on conditions.

9. I have heard the arguments of the learned Counsels for both parties. Smt. Pramila Nesargi who argued in support of wife's petition in Cr. P. No. 2639 of 2001 was also permitted to argue against husband's petition in Cr. P. No. 2571 of 2001. It was vehemently argued by her that once the passport is given to the custody of the husband, he will get back to Australia and will not return to India and will not be available for trial in the criminal case which is going to be launched by the investigating police after completion of investigation, more so when there does not exist any extradition treaty between India and Australia.

10. It has to be recorded with regret that though the complaint was filed by the wife on 11-6-2001 with the police, the Investigating Officer is stated to have not yet completed the investigation into the alleged offences although the most reasonable time within which she could have concluded the investigation and filed her final report might not have exceeded two to three months of time from the date of filing of the complaint. For the reasons best known to her, she is still dragging her feet, although she happens to be a lady police officer. However, the above contention was canvassed by Smt. Pramila Nesargi, on the basis of certain correspondence which were stated to have been carried on by the husband with his wife, wherein he is said to have stated that once he goes back to Australia, he may not come to India. She sought to draw support for this contention from the following decisions of Supreme Court:

(1) Sunil K. Sinha v State of Bihar, : AIR1999SC1533 ;

(2) Chief Enforcement Officer I Enforcement Director and Another v. Jairaj V. Java, : (2000)9SCC232 ;

(3) Hazari Lal Gupta v Rameshwar Pro sad and Another, : 1972CriLJ298 ;

(4) Mohammed Kunju and Another v State ofKarnataka, : 2000CriLJ165 ;

(5) Supreme Court Legal Aid Committee Representing Under-trial Prisoners v Union of India and Others, : (1994)6SCC731 ;

(6) Nrisingha Murari Chakraborty and Others v State of West Bengal, : 1977CriLJ961 .

11. Apart from the above, it was also maintained by Smt. Pramila Nesargi that once the learned Magistrate had passed his order dated 16-6-2001 granting bail to the husband imposing certain conditions, he had no power to alter the same much less any power under Sub-section (2) of Section 437 of the Cr. P.O. under which subsequent application was made for the husband seeking amendment of condition Nos. 2 and 4 thereof.

12. Mr. M.T. Nanaiah, learned Counsel for husband, per contra, argued in support of the subsequent order dated 12-7-2001 of the learned Magistrate passed allowing husband's both applications filed under Section 437(2) of the Cr. P.C. and under Sections 451 and 457 of the Cr. P.C. He rightly submitted that regard being had to the undisputed fact that the husband is employed in Australia and had been working there at the aforestated addresses furnished by him, denial of delivery of passport to him would work out untold hardship and irreparable loss to him, in that, if he is compelled to stay at India till conclusion of the trial of the criminal case contemplated against him, he would be left virtually without any job in India. Therefore, in the circumstances, Mr. Nanaiah argued that, the order of the learned Magistrate releasing the passport to the husband in exercise of his discretion cannot be faulted with. In support of this contention, reliance was placed by him on a recent decision of the Supreme Court in Gian Singh v State of Rajasthan, : (1999)5SCC694 . That apart, he also argued that the composite order dated 12-7-2001 of the learned Magistrate passed on the aforestated two applications of the husband, was an interlocutory order which was not subject to any revision before the learned Sessions Judge in view of the legal bar contained in Sub-section (2) of Section 397 of the Cr. P.C.

13. As regards competency of the learned Sessions Judge to entertain revision against the order dated 12-7-2001 of the learned Magistrateinsofar as it related to the bail for the husband, 1 find sufficient legal force and weight in the contention of Mr. M.T. Nanaiah. In the first instance, it must be pointed out that the argument of Smt. Pramila Nesargi for the wife highlighted to impress upon the Court that the trial Magistrate had no power to pass the subsequent order dated 12-7-2001 altering or amending or deleting the conditions of the earlier bail order dated 16-6-2003 in any manner whatsoever is unacceptable. Of course, Sub-section (2) of Section 437 of the Cr. P.C., under which the application was filed by the husband, does not confer any such power on the leaned Magistrate. But then, Sub-section (5) impliedly confers such power on him. This provision reads:

'(5) Any Court which has released a person on bail under Sub-section (1) or (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody'.

Once by this provision in Section 437 of the Cr. P.C. when the learned Magistrate is conferred with the power to cancel his order, then, as a logical corollary, it follows that he does have the power as well to amend or effect necessary alterations, short of cancellation, in the earlier bail order passed by him. Then, it is needless to state that any bail order passed by a Trial Court is an interlocutory order within the meaning of Sub-section (2) of Section 397 of the Cr. P.C. (vide Usmanbhai Da-woodbhoi. Memon and Others v State of Gujarat, : 1988CriLJ938 . Therefore, the contrary view taken by the learned Sessions Judge in his impugned order that the order of the learned Magistrate dated 12-7-2001 passed modifying his earlier order dated 16-6-2001 was without jurisdiction and was, therefore, subject to revision before him, is wholly erroneous. In that view of the legal position, the learned Sessions Judge ought not to have entertained the State's revision in Cr. R.P. No. 218 of 2001 by which the modified bail order of the learned Magistrate was challenged. As a necessary legal consequence, the order of the learned Sessions Judge dated 26-7-2001 passed setting aside the order dated 12-7-2001 of the learned Magistrate, by allowing the State's revision in Cr. R.P. No. 218 of 2001, is obviously an order without jurisdiction and is of no effect in the eye of law. The resultant legal position, therefore, would be that the order dated 12-7-2001 of the learned Magistrate passed in modification of his earlier order dated 16-6-2001 stands unaffected. Therefore, the husband's Cr. P. No. 2571 of 2001 is entitled to succeed, without more.

14. Now, adverting to the order of the learned Magistrate as also of the learned Sessions Judge insofar as they related to the husband's prayer for delivery of his passport to him, as already indicated, under the composite order dated 26-7-2001, the husband's application under Sections 451 and 457 of the Cr. P.C. was allowed by the learned Magistrate on two conditions stated therein. The question now that arises as regards point of jurisdiction of the learned Sessions Judge to entertain the revision of the wife against that order in Cr. R.P. No. 217 of 2001 is that whether that order also could be called as an 'interlocutory order'for the purposes of Sub-section (2) of Section 397 of the Cr. P.C. There is no dispute, as was submitted by Smt. Pramila Nesargi that a passport is the property of a person (vide Nrisingh Murali Chakraborty's case, supra). There is also no dispute that the said passport was the property of the husband. It was seized and subjected to P.F. and was produced before the learned Magistrate. The object of its seizure was to prevent the husband from leaving India and placing himself beyond the jurisdiction of the Trial Court, so that his attendance at the trial of the criminal case, to be still filed against him by the police, could be ensured. In other words, the object of seizure of the passport by the police and its retention in custody of the Trial Court was to place necessary restrictions on the liberty of the movements of the husband to secure his attendance on the hearing dates in the criminal trial against him. In view of this backdrop, it cannot be strictly stated that any order passed relating to delivery of the custody of the passport to the husband could be either an interlocutory order simpliciter or for that matter a final order. Such an order vacillates somewhere between these two orders. In that view of the matter, it cannot be stated and held that such order which neither falls within the purview of an interlocutory order nor within the ambit of a final order, would not be subject to revision by virtue of Sub-section (2) of Section 397 of the Cr. P.C. Therefore, the wife's revision before the learned Sessions Judge in Cr. R.P. No. 217 of 2001 was rightly held as maintainable by the learned Sessions Judge. The argument of Mr. M.T. Nanaiah assailing the maintainability of that revision before the learned Sessions Judge, does not find favour with me.

15. Let me now advert to the validity and propriety of the order of the learned Sessions Judge permitting delivery of the custody of the said passport to the husband, which stands impugned by the wife herein (Cr. P. No. 2639 of 2001).

16. In Sunil K. Sinha's case, supra, cited by Smt. Pramila Nesargi, the appeal of an undertrial prisoner for grant of bail had been disposed of by Supreme Court with its brief order dated 27-3-1998 observing that he was entitled to be enlarged on bail in view of the long incarceration of the appellant since 1996 and the trial was not likely to be concluded in the near future, with the direction that he be released on bail in a sum of Rs. 1,00,000/- with two sureties of the like amount and that the bail bond to be accepted on the condition that if the appellant is a passport holder, he shall surrender the passport to the learned Special Judge.

17. In the case of Chief Enforcement Officer /Enforcement Director, supra, the accused undertrial prisoner was a resident of Dubai. He was a businessman. He was permitted to visit Dubai for the purpose of business with permission of High Court. While granting him bail, he was directed to surrender his passport before the Trial Court for the speedy progress of the trial of the case against him.

18. In Hazari Lal Gupta's case, supra, the accused was living and was doing business in U.K. While seeking his bail from the Trial Court, it was stated and undertaken by him that he would surrender his passport and would not leave India pending his trial. On the basis of thoseundertakings, he was granted bail. Subsequently, he applied for modification of the bail order deleting those undertakings which were incorporated as conditions in the bail. That was rejected by the Trial Court and the High Court. Then he approached the Hon'ble Supreme Court, without success, since the undertaking given by him for the purpose of bail order was binding on him. Obviously, this authority is of no relevance for the case in hand.

19. In the case of Mohammed Kunju, supra, the accused was a foreign national. When he was granted bail, he jumped it and slipped out of India. As a result, legal action against his sureties for levy of the penalty under their forfeited bail bonds was initiated. That action was challenged by the sureties before this Court and, thereafter, before Hon'ble Supreme Court. While dealing with the legality or otherwise of the said legal proceeding against sureties, an observation was made by Hon'ble Supreme Court that while granting bail to the accused foreign national, the Court could have imposed the condition to surrender his passport as a measure to prevent him to escape out of India.

20. In Supreme Court Legal Aid Committee Representing Under-trial Prisoners' case, supra, in a large number of cases, the accused were undertrial prisoners, who were involved in commission of the offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. They were all incarcerated for a considerable period pending their trial, for one reason or the other. While directing their release on bail, the Hon'ble Supreme Court was pleased to order that such of the undertrial accused, who were holding the passport shall deposit the same with the Trial Court, and if any of them are foreigners, their passports shall be impounded and production of certificate of assurance from the concerned Embassy or the High Commission of their country be insisted upon.

21. All the above decisions of Supreme Court were cited by Smt. Pramila Nesargi to buttress her argument that if the accused involved in a criminal case resides abroad, it is always necessary that his passport shall be got deposited with the Trial Court and it shall not be released to him in any circumstance.

22. Rebutting the above contention, as indicated, Mr. M.T. Nanaiah sought to draw support from the recent decision of the Supreme Court in Gian Singh's case, supra. In that case, the accused, who was an Indian, had acquired British citizenship and was settled down in England. He was being prosecuted for the offence under Section 498-A of the IPC on the complaint filed by the father of his (accused's) daughter-in-law alleging perpetration of cruelty by the accused against her. His passport was seized during investigation and was produced in the Court of the Trial Magistrate. His request to release it was turned down by the Courts below. He then approached Hon'ble Supreme Court with his appeal to release the same to him. Allowing the appeal, the Supreme Court observed:

'3. ..... If his passport is not released to him he will be compelled to remain in India which unfortunately is not his present home, and continue to remain here until the final end of the criminalproceedings now launched. Nobody knows when the trial will commence and end. But the respondent's Counsel expressed apprehension that if the appellant is allowed to go back to England or to leave India he might not make himself available for the trial. The situation is not therefore free from difficulty. On the one side the legal process has to reach its normal culmination and on the other side the agony of the appellant that he cannot go home is genuine. We think a solution has to be worked out in the interest of justice'.

So observing, it directed the Trial Court to return the passport to the appellant on his executing a bond for sum of Rs. 3,00,000/- with two solvent sureties to the satisfaction of the said Court. While giving such a direction, further pertinent observation at paragraph 5 of its order was made by Hon'ble Supreme Court thus:

'5. To ensure his attendance in the Court when trial begins, we may make a provision. We agree that it would be difficult for the appellant to be present on all posting dates in the Trial Court. Therefore, we permit him to appear through Counsel except on days when his presence is imperatively needed. He must file an application before the Trial Court through Counsel and seek dispensation of this personal presence and ensure that his Counsel would be present on his behalf on days except when his presence is indispensable. If he makes such an application the Trial Court shall dispense with his physical presence in Court'.

23. I have bestowed my consideration on rival contentions put forward by both sides in the light of the Supreme Court decisions relied on by the respective parties. On a careful consideration of the pros and cons of the matter, I find that the husband's petition deserves to be allowed in the light of the recent pronouncement of Supreme Court in the case of Gian Singh, supra.

24. At this juncture, it has to be noted that in the course of argument, when the Court called upon the learned Counsel for the husband that let the husband deposit a sum of Rs. 1,00,000/- with the Trial Court as additional security for taking delivery of the passport from the Trial Court, to ensure his attendance, when required, on the hearing dates in course of the trial proceeding against him, this suggestion was readily accepted by him. Therefore, for all the reasons stated and discussed above, I find that the wife's petition in Cr. P. No. 2639 of 2001 is liable to be rejected and the husband's petition in Cr. P. No. 2571 of 2001 is entitled to succeed.

25.' Hence, Cr. P. No. 2571 of 2001 is allowed. The order dated 26-7-2001 of the learned Sessions Judge passed allowing Cr. R.F. No. 218 of 2001 before him and setting aside the order dated 12-7-2001 of the trial Magistrate which was passed in modification of his earlier bail order dated 16-6-2001, is quashed. The aforestated addresses of petitioner-husband furnished in course of this proceeding shall form part of the record of the Trial Court proceeding. Further, the following conditionsshall be treated as additional conditions incorporated in the bail order of the learned Magistrate, dated 12-7-2001:

(1) that husband shall deposit a sum of Us. 1,00,000/- in the Court of the learned trial Magistrate by end of December 2001;

(2) that on first Sunday of every alternate month, petitioner-husband shall mark his regular attendance in the office of the High Commission at Australia; and

(3) that he shall not shift himself to any country other than Australia, except India, without written permission of the Trial Court, till conclusion of the trial against him, if charge-sheeted by the concerned investigating police.

Besides the above, it is also ordered that the aforequoted observation of the Supreme Court at paragraph 5 of its order pronounced in Gian Singh's case, supra, shall form part of the said modified bail order dated 12-7-2001. The notice to the husband of the next hearing date on which his personal attendance becomes necessary for further progress in the case, shall be given to him at least fifteen days prior to that date of hearing.

The wife's Cr. P. No. 2639 of 2001 is rejected.