Chennupati Kranthi Kumari vs State Of Andhra Pradesh, Rep. By Its Public Prosecutor And Others

Ninala Jayasurya, J

Aggrieved by an Order dated 14.06.2022 in Crl.M.P.No.247 of 2022 in C.C.No.288 of 2021 on the file of the Court of II Additional Chief Metropolitan Magistrate-cum-Mahila Magistrate, Vijayawada, the present Criminal Petition has been filed.

The petitioner herein is accused No.1 in C.C.No.288 of 2021, who is facing charges for the offences under Sections 498-A, 403, 406 of IPC and Sections 3 and 4 of D.P.Act. The 4th respondent herein is the wife of the petitioner. Though, a lengthy Charge Sheet was filed by the police against the petitioner/accused No.1 and his family members, the contents of the same need not be discussed at length. Suffice to state that allegations of demand for additional dowry and retaining passports of the 4th respondent and her son, as also gold ornaments, were made against accused/petitioner. Be that as it may.

In the above said C.C., the petitioner/accused No.1 filed a miscellaneous petition vide Crl.M.P.No.247 of 2022 under Section 22(a) of Passport Act, 1967 to permit him to leave India to travel abroad/USA to attend his duty for atleast six months and a direction to the 3rd respondent to release the Original Passport, which was handed over by the police to the Passport authorities during the course of investigation. The said application was opposed by the 4th respondent/de facto complainant by filing a detailed counter. The learned Magistrate after considering the rival submissions, dismissed the said application. Aggrieved by the said Order of Dismissal, the present Criminal Petition came to be filed.

Heard Mr.Challa Dhanunjay, learned Senior Counsel. Also heard learned Assistant Public Prosecutor appearing for respondent Nos.1 and 2, Mr.N.Harinath, learned Assistant Solicitor General of India for respondent No.3 and Mr.A.Sudhakar Rao for respondent No.4/de facto complainant.

The learned Senior Counsel, inter alia, contends that the petitioner is working in a Senior position in a Software company at U.S.A., and when he came to India to perform the first death anniversary rituals of his father, the complaint was lodged against him with all false allegations and on the basis of the same, the alleged crime was registered and at the time of investigation, the petitioner gave his Passport to the Investigating Officer to cooperate with the investigation, with a bona fide belief that the same would be returned to him. He submits that the investigation agency instead of returning it after completion of investigation, had handed over the same to the Passport Authorities and the petitioner was informed that in the absence of any Court Order, it would not be released. While contending that the Passport Authorities, cannot withhold the passport of the petitioner like in the present case, the learned Senior Counsel would submit that such an action on the part of the Passport Authorities, amounts to infringement of the petitioner’s fundamental rights guaranteed under Article 21 of the Constitution of India. He further submits that the learned Magistrate went wrong in not considering the matter from the said perspective and therefore, the Order under challenge is not sustainable. The learned counsel also submits that the petitioner is at peril of losing his employment, unless he is permitted to go to abroad by directing the release of his passport. He also submits that the reasons as assigned by the learned Magistrate for dismissing the petition, are based on mere surmises and conjunctures and the Court below ought to have granted permission by imposing conditions. He also submits that in the event of the petitioner getting an acquittal in the above C.C., the loss caused to him in view of denial of permission to travel to abroad, cannot be compensated. The learned Senior Counsel also places reliance on the decision of a learned Single Judge of this Court in D.Suryaprakash Venkata Rao v. State of Andhra Pradesh MANU/AP/0270/2019. Making the above submissions, the learned Senior Counsel would submit that the Court may impose reasonable conditions for release of the petitioner’s Passport to facilitate his travel to abroad for attending his duty.

The learned Assistant Public Prosecutor, on the other hand, submits that the Order passed by the learned Magistrate is well considered and warrants no interference by this Court in the facts and circumstances of the case. He also submits that keeping in view of the interest of both the parties, the Trial Court may be directed to dispose of the C.C., as expeditiously as possible.

The learned Assistant Solicitor General, on instructions fairly submits that no Order has been passed impounding the petitioner’s passport.

The learned counsel for the 4th respondent/de facto complainant, however, strenuously contended that the petitioner is not entitled to any indulgence by this Court and the Order under challenge warrants no interference. While drawing the attention of this Court to the specific averments made in the counter-affidavit of the 4th respondent, the learned counsel would submit that the petitioner and his family members had subjected the 4th respondent for additional dowry and compelling her to accept divorce and withdraw the Criminal cases. He also submits that the petitioner though seeks a direction for release of his Passport, on the premise of violation of his fundamental rights, with a mala fide intention, kept the Passport of the 4th respondent and her son with him, without returning the same for renewal. He submits that the 4th respondent has every reason to apprehend that the petitioner after returning to U.S.A., would change the status of the 4th respondent as the Passports are with him. The learned counsel also submits that the earlier attempts made by the petitioner with regard to release of Passports were rejected and as held by the learned Magistrate if the petitioner is permitted to go to abroad, it would be difficult to secure his presence, much less for the purpose of expeditious disposal of cases registered against him. Making the said submissions, the learned counsel seeks dismissal of the Criminal Petition.

This Court has considered the submissions made on behalf of the respective parties and perused the material on record. Before dealing with the contentions, it may be appropriate to note that the petitioner on the earlier occasion, moved an application vide Crl.M.P.No.93 of 2021 in C.C.288 of 2021, under Sections 451 and 457 of Criminal Procedure Code, seeking a direction to the Regional Passport Officer to hand over the petitioner’s Original Passport for interim custody, pending C.C.No.288 of 2021. The said petition was dismissed, against which the petitioner filed Criminal Revision Petition No.9 of 2021 before the IV Additional Metropolitan Sessions Judge, Vijayawada. By an elaborate Order dated 29.06.2021, the learned Sessions Judge was pleased to dismiss the said Revision Petition, inter alia, on the premise that Revision under Section 397(2) of Cr.P.C., would not lie against an interlocutory order passed by the Trial Court. Thereafter, it appears that the petitioner filed W.P.No.14113 of 2021 seeking return of Passport and the same was Dismissed on 15.03.2022 as withdrawn. Be that as it may.

The petitioner again approached the learned Trial Court seeking a direction for release of Passport and permission to go to abroad/USA to attend his duties. The learned Trial Court, dismissed the said petition, mainly on two grounds that the petitioner can exercise his option for return of Passport after conclusion of Trial and that it is impossible to get him back and will escape from all liabilities and cases. The said reasons in the considered opinion of this Court, are not sustainable. The view expressed by the learned Magistrate with regard to exercise of option for return of Passport after conclusion of Trial is not justified, more particularly as the same is required to facilitate the petitioner to go to U.S.A., and attend his duties, else there is every possibility of losing his employment. The other reason that if he is allowed to go to abroad, it is impossible to get him back, is also equally untenable. There are ways and means to secure the presence of the petitioner, including appropriate proceedings for cancellation/impounding of Passport by invoking the provisions of the Passports Act. As observed by the learned Judge in D.Suryaprakash Venkata Rao’s case, retention of passport for a long time amounts to impounding. If there is apprehension that the accused is likely to flee the Country, the only option available to the prosecution is to file an appropriate application before the Passport authorities to impound the passport. Therefore, the learned Magistrate is not right in dismissing the petition and the impugned order is therefore liable to be set aside.

However, the relevant aspect which requires serious consideration is whether it would be appropriate to direct the release of passport and permit the petitioner to go to abroad, in the facts and circumstances of the case, more particularly, in the light of the specific averments made in the counter-affidavit of respondent No.4, which reads as follows:

“8. I submit that the petitioner is continuously doing his job in online and earning Rs.4 lakhs in India currency, but not paid single pie towards our maintenance for all these years. As my certificates are at U.S., I could not be in a position to do any job. I lost my employment in U.S. For the last 2 years, he is fixing dates stating that if does not reach U.S by that date, he will loose his job and in that way trying to get passport, but evading to return our passports. The petitioner is saying about his fundamental rights, but by curtailing our fundamental rights……..

I submit that, after dismissal of his revision petition, the petitioner started threatening me to accept for divorce, withdraw criminal cases and maintenance case as a condition to return our passports or else stating that he will go to U.S. and he will change his status. If it happens, I should be permanently confine to India only and even it is not possible to me to get certificates, gold and other belongings………”

No reply affidavit is filed adverting to the above referred allegations and therefore, the contentions advanced by the learned counsel for the 4th respondent/de facto complainant gains significance.

Therefore, in the peculiar facts and circumstances of the case and keeping in view the interest of both the parties, this Court deems it appropriate to set aside the Order under Revision and direct the release of Passport of the petitioner to facilitate his travel to abroad subject to the condition of the petitioner depositing a sum of Rs.10,00,000/- by way of F.D.R., in favour of the 4th respondent/de facto complainant along with the Original Passports of the 4th respondent/de facto complainant and her son before the learned II Additional Chief Metropolitan Magistrate-cum-Mahila Magistrate, Vijayawada, within a period of four (4) weeks from the date of receipt of a copy of this Order. Further, the petitioner shall file an Undertaking-Affidavit that he would return to India within a period of six months and cooperate for expeditious disposal of the above said C.C. In the event, the petitioner fails to return back, the F.D.R., shall stand forfeited in favour of the 4th respondent/ de facto complainant.

Accordingly, the Criminal Petition is allowed with the directions as indicated above.

Miscellaneous applications, pending if any, shall stand closed.