Law Web: Whether passport authority can reject application of accused for passport on the ground that she has not furnished surety as per S 437A of CRPC after her acquittal?

As noted above, the said order confirming the

Judgment and Order of acquittal, has not been challenged by the

CBI. It is pertinent to note that the purpose of Section 437A

Cr.P.C is to enable the Court to execute bail bonds with surety

from the accused, so as to enable them to appear before the High

Court as and when the Court issues notice in respect of any

appeal or petition filed against the judgments of the respective

Courts. Under Section 437A, the bail bonds are to remain in force for six months as per sub-section (2) of Section 437A and if the accused fails to appear, the bail bond shall stand forfeited under provision under Section 446 would thereafter apply. Section 446 deals with the procedure when bond has to be forfeited. {Para 12}

13 From the facts as narrated aforesaid, it is evident that

the petitioner had indeed furnished PR Bond as directed by the

Court and the trial Court had extended time to furnish surety. In

the interregnum, CBI had filed an appeal against the petitioner’s

acquittal and that the petitioner had appeared before the High

Court, pursuant to the notice and subsequently, after hearing the

parties, had rejected CBI’s application seeking leave to file appeal.

14 In these circumstances, there was no justification for

the CBI to give a report as given by the CBI to the respondent

No. 2. The object of Section 437A is to secure the presence of an

accused before the higher forum, after the acquittal. The

petitioner had infact furnished PR Bond of Rs. 50,000/- before

the trial Court. In the present case, the petitioner infact,

appeared before the High Court, pursuant to the notice issued in

the appeal filed by the CBI. In these circumstances, the CBI

ought to have been fair and ought to have accordingly given a

report, instead of stating that the case matter is still pending in

CBI and her file should not be cleared, when infact, there was no

proceeding pending before any Court of law, at the relevant time.

Neither has the learned counsel for the CBI been able to point

out, what were the proceedings which were pending before the

CBI at the time when such a report was forwarded to the

respondent No. 2-Authority. Therefore, the report given by the

CBI to the respondent No. 2 was clearly contrary to what had

really taken place.

17 Since the petitioner’s earlier application seeking

issuance of passport has been closed, we grant liberty to the

petitioner to apply afresh for issuance of fresh passport. If an

application is made for issuance of fresh passport, the respondent

No. 2 to issue the same in accordance with law under the

Passport Act and its Rules and keeping in mind what is stated

aforesaid in this order. The application, if filed, be considered

expeditiously.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 3017 OF 2023

Jigna Jitendra Vora Vs The State of Maharashtra & Ors.

CORAM : REVATI MOHITE DERE &

GAURI GODSE, JJ.

MONDAY, 25 th SEPTEMBER 2023

1 Heard learned counsel for the parties.

2 By this petition, the petitioner seeks quashing of the

impugned letters dated 20th March 2020 and 20th October 2020

issued by the respondent No. 2 i.e. the Regional Passport Office,

Mumbai. There is also a prayer seeking direction to the

respondent No. 2 to consider petitioner’s application seeking

issuance of passport, afresh.

3 Learned counsel for the petitioner submits that the

petitioner had applied for issuance of passport, however, her

application was rejected by the respondent No. 2 i.e. the Regional

Passport Office vide letters dated 20th March 2020 and 20th

October 2020. He submits that the reason spelt out in the letter

dated 20th March 2020 is, that the CBI informed them that “the

case matter is still pending in the CBI and hence, her

(petitioner’s ) file should not be cleared till the matter ends”.

4 Mr. Kocharekar, learned counsel for the petitioner

submits that there was no proceeding pending before the CBI

Court nor before the High Court, for the CBI to send such a

remark to the respondent No. 2. He submits that the petitioner

having been acquitted on merits by the trial Court, which

Judgment and Order was confirmed by the High Court, there was

no proceeding pending before any Court and as such, the

respondent No. 2 could not have refused to issue passport to the

petitioner. He submits that even the CBI’s stand that the case was

pending before the CBI, is contrary to the record, inasmuch as,

there is no proceeding pending against the petitioner.

5 Learned counsel appearing for the respondent No. 2

i.e. the Passport Authority submits that on receipt of a report

from the CBI stating therein, that the matter is pending before the

CBI and that the file should not be cleared, the petitioner’s file

seeking issuance of passport, came to be closed. He submits that

it is open for the petitioner to re-apply for fresh passport, since

her earlier application has been closed, in view of the CBI Report.

6 Mr. Gharat, learned Special Public Prosecutor

appearing for the respondent No. 3-CBI, submits that the

petitioner’s application seeking issuance of passport, could not

have been entertained by the respondent No. 2, as the petitioner

had failed to furnished surety within six months from the date of

the Judgment and Order of acquittal under Section 437A of the

Code of Criminal Procedure (`Cr.P.C’). He submits that as the

petitioner failed to furnish surety, the petitioner has now made

herself liable for an offence under Section 176 of the Indian Penal

Code (`IPC’).

7 Perused the papers. The petitioner was arrayed as

accused No.11 in an MCOC case, being Special Case No. 7/2012.

The sections for which the petitioner was prosecuted alongwith

other co-accused were offences punishable under Section 302 and

other Sections of the IPC as well as Section 3(25) of the Arms

Act; under Sections 3(1)(1), 3(2) and 3(4) of the Maharashtra

Control of Organised Crime Act; and under Sections 37(1)(a) and

135 of the Maharashtra Police Act.

8 After a full-fledged trial, the petitioner came to be

acquitted of all the offences by the learned Special Judge,

Mumbai, vide Judgment and Order dated 2nd May 2018. In para

13 of the said Judgment and Order dated 2nd May 2018, the

petitioner was inter alia directed to execute the PR bond of

Rs.50,000/- with one surety in the like amount under Section

437A of the Cr.P.C, for a period of six months, in order to enable

her to appear before the High Court, in the event, an appeal or a

petition is filed against the Judgment and Order of acquittal. The

bail bond was to be in force for six months. It is not in dispute

that the petitioner executed a PR Bond for Rs.50,000/- on 2nd

May 2018, however, sought time to furnish surety bond, as

directed by the learned Special Judge. The learned Special Judge

was pleased to extend the time to furnish the surety bond.

Admittedly, the surety bond was not furnished, although, PR

bond was furnished by the petitioner.

9 It is not in dispute that in the interregnum, the CBI

filed an appeal against the acquittal of the petitioner in this

Court, challenging the Judgment and Order of acquittal of the

petitioner. On 7th March 2019, the said appeal against acquittal

was filed by the CBI. On 18th March 2019, notice was issued to

the petitioner in the said appeal filed by the CBI and on 27th

August 2019, leave to file appeal against the acquittal of the

petitioner, was rejected by this Court. The said order is at

Exhibit `C’ at page 64. Admittedly, the said order of the High

Court confirming the Judgment and Order of acquittal passed by

the trial Court, has not been challenged by the CBI before the

Apex Court.

10 Pursuant to the aforesaid, the petitioner filed an

application seeking issuance of passport before the respondent

No. 2-Authority. The respondent No. 2, on receipt of a report

from the CBI, stating therein, that the ‘case matter is still pending

in the CBI and that file should not be cleared’, closed the file of

the petitioner. The same was informed to the petitioner vide

letter dated 20th October 2020. It appears that the petitioner

thereafter filed an application before the Special Judge for a

declaration that it is not necessary to file surety bond as per the

Judgment and Order dated 2nd May 2018, for the reasons spelt

out in the application. The said application was filed on 2nd

March 2022. It appears that the CBI opposed the said application

on the ground that the period to furnish the surety had expired

and that the petitioner had within the said period, not furnished

surety and as such, had made herself liable for an offence. The

said application was rejected by the learned Special Judge vide

order dated 12th April 2023, after observing in para 6 as under :

“6. Heard both parties. Perused application and say.

Upon perusal of Section 437-A Cr.P.C. it is seen that the

accused shall execute bail bonds with surety to appear

before the higher Court and these bail bonds shall be in

force for six months. The provision is very much clear.

Now the contention of the applicant that after the lapse of

period of six months and after disposing of the appeal by

the Hon’ble High Court, it be declared that it is not

necessary to furnish bail bonds. If the contention of the

applicant is considered vis-a-vis with the Section 437-A,

then also it cannot be said that six months period is

mentioned in respect of furnishing of the surety. On the

contrary, as per the said section the bail bonds shall be in

force for six months. It is the period of validity of such

bail bonds. Moreover, this Court has no power to give

declaration in this regard and therefore the application is

devoid of merit and needs to be rejected. Hence, the

following order.

ORDER

Misc.Application (MCOC) No. 399 of 2023 is rejected.”

11 It is not in dispute that the petitioner had furnished

PR Bond and in the interregnum, the CBI had challenged the

Judgment and Order of her acquittal, and the petitioner had

appeared before the High Court and this Court, after hearing the

respective parties, had dismissed the appeal filed by the CBI.

12 As noted above, the said order confirming the

Judgment and Order of acquittal, has not been challenged by the

CBI. It is pertinent to note that the purpose of Section 437A

Cr.P.C is to enable the Court to execute bail bonds with surety

from the accused, so as to enable them to appear before the High

Court as and when the Court issues notice in respect of any

appeal or petition filed against the judgments of the respective

Courts. Under Section 437A, the bail bonds are to remain in force

for six months as per sub-section (2) of Section 437A and if the

accused fails to appear, the bail bond shall stand forfeited under

provision under Section 446 would thereafter apply. Section 446

deals with the procedure when bond has to be forfeited.