Abdul Khalik vs State of U.P. and Another

Subhash Chandra Agarwal, J.—Heard learned Counsel for the applicant and learned A.G.A. for the State and perused the record.

This is an application u/s 439(1)(b), Cr. P.C. for setting aside the conditions imposed by Addl. Sessions Judge, Court No. 1, Azamgarh in granting the bail to the applicant by order dated 7.3.2009, passed on Bail Application No. 347 of 2009, Abdul Khalik v. State of U. P., in Case Crime No. 1079 of 2008 under Sections 307, 323, 504 and 506, I.P.C., P. S. Kotwali, Deo Gaon, District Azamgarh.

In brief the facts of the case are that the applicant Abdul Khalik was an accused in Case Crime No. 1079 of 2008 under Sections 307, 323, 504 and 506, I.P.C., P. S. Kotwali Deo Gaon, District Azamgarh. He applied for bail and the bail was granted to him by order dated 7.3.2009, passed by the Addl. Sessions Judge, Court No. 1, Azamgarh on furnishing two sureties in the sum of Rs. 20,000 and a personal bond in the like amount on the conditions that he will deposit his passport with the concerned Magistrate and shall give an undertaking that he shall be present on each date of hearing and shall not go to a foreign country without seeking permission of the Court. Against these conditions for bail the present application u/s 439(1)(b), Cr. P.C. has been filed.

It is submitted by learned Counsel for the applicant that the conditions imposed by the learned Addl. Sessions Judge are unjustified, harsh, onerous and unnecessarily curtail the right of the applicant to earn his livelihood. It is further submitted that the applicant is a permanent resident of village Khataili Khurd, P. S. Deo Gaon, District Azamgarh and for the last 29 years the applicant is working as a driver in Saudi Arab. It is further submitted that the passport of the applicant is going to expire on 14.6.2009 and is required to be returned to the applicant for getting its renewal from the passport authorities and that the applicant needs to go to Saudi Arab to earn his livelihood and he would be attending the Court as and when required. It is further submitted that an application for permission to go abroad was moved by the applicant before the Magistrate, which was rejected on the ground that the case is triable by the Court of Session. It has been prayed that the conditions imposed by Addl. Sessions Judge be removed or modified to enable the applicant to go to Saudi Arab.

Per contra learned A.G.A. submits that the conditions imposed by learned Addl. Sessions Judge are reasonable and have been imposed with a view to ensure the presence of the applicant at the time of trial and if the applicant is permitted to go abroad, he might abscond.

Learned Counsel for the applicant has placed reliance on the case of Munish Bhasin and Others Vs. State (Govt. of N.C.T. of Delhi) and Another, , in which the matter before the Hon''ble Supreme Court was that the High Court of Delhi while granting bail to the accused had imposed the conditions that the accused shall surrender his passport to the Investigating Officer and shall file affidavit in the Court that they would not move the country without permission of the Court. The accused were also directed to pay Rs. 12,500 per month by way of maintenance to the wife and the child.

Hon''ble Supreme Court found that normally conditions can be imposed to secure the presence of the accused before the Investigating Officer or before the Court, to prevent him from fleeing the course of justice, to prevent him from tampering the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the fact before the police or Court or restricting the movement of the accused in a particular area or locality or to maintain law and order etc. It was held that to subject an accused to any other conditions would be beyond jurisdiction of the Court. The Hon''ble Supreme Court set aside the conditions directing payment of maintenance to the wife and child of the accused being onerous and unwarranted but the remaining conditions regarding deposit of passport and to seek permission before going abroad were maintained.

In the instant case admittedly the applicant is working in the Saudi Arab as a driver and he has movable property and other property there. He may seek the permission of the trial court to go to Saudi Arab from time to time but the aforesaid conditions of bail which have been imposed with a view to secure his presence during the trial, cannot be said to be onerous and unreasonable. Thus, the application for modification of the conditions imposed at the time of granting bail is liable to be rejected and is accordingly rejected.

However, it appears from the records that the application moved by the applicant before the Magistrate for permission to go to Saudi Arab and for his return of the passport was rejected by the Magistrate on erroneous ground and application of this nature could not be rejected by the Magistrate on the ground that the case is triable by the Court of Session specially when the case is yet to be committed to the Court of Session, the Magistrate has full jurisdiction to entertain such application and to pass proper and reasonable order. The applicant also requires his passport for getting it renewed. He may also need permission to go to abroad to earn his livelihood or to collect his property lying abroad. For these purposes, he may move application before the Magistrate or if the case is committed, to the session court for return of his passport or for permission to go to Saudi Arab for a limited period. Such application if moved, would be considered by the courts below keeping in view the nature and hardship of the applicant and also keeping in view the requirement of the presence of the applicant at the time of trial.

With these observations, the applicant u/s 439(1)(b), Cr. P.C. is disposed of.

On an application being moved, a certified copy of this order be issued to the learned Counsel for the applicant within 24 hours.