S.S. Saron, J.

1. This order will dispose of Criminal Misc. No. 35639M of 2004 and Criminal Misc. No. 35642M of 2004.

2. Criminal Misc. No. 35639M of 2004 has been filed by Arun Kapur and Criminal Misc. No. 35642M of 2004 has been filed by Arun Kapur and Akshay Kapur. The prayer made in both the petitions is for the release of the passport of the petitioners, which have been deposited in pursuance of the orders of this court and also for permission to go abroad to various countries as mentioned in the prayer clause.

3. Case FIR No. 21 dated 1.2.2003 stands registered at Police Station Civil Lines, Sonepat for the offences under Sections 406, 419 and 420 IPC against Arun Kapur. Besides, case FIR No. 22 dated 1.2.2003 stands registered at Police Station Civil Lines Sonepat under Sections 406, 419, 420, 467, 468 and 471 IPC against both Arun Kapur and Akshay Kapur. It is, therefore, that aforesaid two separate criminal miscellaneous petitions have been filed for the release of passports to enable the petitioners to go abroad.

4. The case set up by the petitioners is that they have been falsely implicated in the respective cases. Arun Kapur is the son of shri B.D. Kapur and grandson of Shri Janki Dass Kapur, who started Atlas Cycle Industries Ltd. He is the largest shareholder of the said company having more than 11% shares in M/s. Atlas Cycle Industries Ltd., which is a Public Ltd. Company. It is stated that the petitioner along with other family members is managing and controlling the diverse business of M/s. Atlas Cycle Industries Ltd. He was also designated as Assistant Joint President (Works) of M/s. Atlas Cycle Industries Ltd. and has been managing Malanpur Unit of Atlas Cycle Ltd. in Madhya Pradesh. Akshay Kumar, his son is also a major shareholder and was working as Assistant Vice President (Works) of the Sonepat Unit. It is stated that it is due to family dispute inter se between the family members, who control M/s. Atlas Cycle Industries Ltd. that false FIRs dated 1.2.2003 stand registered at Police Station, Civil Lines, Sonepat against the petitioners.

5. The limited prayer in this petition is for release of the passport as it is stated that the petitioners have to go abroad in connection with the business of the company. A similar application was moved before the learned trial Magistrate, which has been declined vide order dated 10.4.2004. The petitioners then filed Criminal revision before the Court of Session, which was dismissed on 5.5.2004 by the learned Sessions Judge, Sonepat. Hence the present petition.

6. Replies have been filed in both the cases, in which it is stated that the petition is not maintainable and is liable to be dismissed. It is stated that the matter regarding release of passport has been adjudicated by the trial Court as well as by the Sessions Judge, Sonepat in revision. It is submitted that there is apprehension that the petitioners will absent themselves in case the passports are released. Besides, disposal of the criminal case pending against them would be delayed for a long period. It is also stated that any other Director or Manager of the company or other suitable executive of the company can be sent to foreign countries in connection with the business and no irreparable loss or injury is going to be caused to the petitioner company in case, the petitioners themselves do not go abroad. It is stated that the very fact that involvement of the petitioners are in various companies and in various countries, they would not be available before the trial Court. Rather, the petitioners may pray for early disposal of their cases by having short adjournments. Therefore, it is stated that the petitions are liable to be dismissed.

7. Shri Bipan Ghai, Advocate, learned counsel appearing for the petitioners contends that the petitioners are entitled to go abroad in furtherance of the business prospects of the Company. He further contends that on all material dates of hearing the petitioners would duly appear before the trial Court and for their absence for short duration they can be allowed to appear through their counsel. Therefore, the petitioners may be given permission to go abroad. Reference is made to the order dated 1.8.2003 (Annexure P2) passed by this Court in Criminal Misc. Nos. 6353M of 2003 and 6351M of 2003 whereby permission was earlier granted to the petitioners to go abroad subject to the condition that on their return they would deposit their passports. It is contended that the petitioners in compliance of the said order have gone abroad and on return duly deposited their passports. Therefore, there is no question for the petitioners misusing the concession of going abroad. It is also contended that the petitioners have huge business interest in the country and, therefore, the apprehensions expressed by the State are without any basis.

8. In response, Shri Sudhir Nehra, Assistant Advocate General, learned counsel for the State has contended that the petitioners are not entitled to be granted permission to go abroad and in case if they go abroad they are likely to abscond. In any case, it is contended that the proceedings of the case would be delayed. Therefore, it would be more appropriate that the petitioners may seek directions for expeditious disposal of the case.

9. I have given my thoughtful consideration to the respective contentions of the learned counsel for the parties.

10. It is not in dispute that the petitioners are having business commitments to fulfil and they have to go abroad for business dealings. It is also not in dispute that the petitioners do go abroad for business dealings. It is also not in dispute that contracts have to be procured from abroad to carry out the work here. Besides, the petitioners had earlier also gone abroad in terms of the permission granted by this Court on 1.8.2003 and they have returned and redeposited their passports.

11. The Hon'ble Supreme Court in Srichand P. Hinduja v. State through C.B.I., New Delhi, 2002(3) RCR(Crl.) 186 (SC) : AIR 2002 SC 410 granted permission to go abroad to the accused in the said case. The case related to offences punishable under Sections 120B and 420 IPC as also under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. In the said case also, a plea was raised that if the appellants therein were permitted to go abroad, it would affect the smooth progress of the trial and there are reasonable grounds to believe that they would not return back to India to face the trial. It was noticed, that the appellants therein were Indian Nationals at the time of registration of the FIR and thereafter they had acquired British and Swiss Nationalities. The Hon'ble Supreme Court, after considering the facts and circumstances of the case as an interim measure allowed the accused therein to go abroad subject to their furnishing adequate sureties.

12. This Court in Brij Bhushan Singal v. Central Bureau of Investigation, 1994(3) RCR(Crl.) 498 (P&H) which is a case where the Special Judge granted bail to accused therein but impounded his passport to prevent him from going abroad, held that it was competent to review the order under Section 482 Cr.P.C. and order released of the passport. Accordingly, the accused therein was permitted to go abroad and then return within four months subject to his furnishing security in the sum of Rs. 25 lacs.

13. The Hon'ble Karnataka High Court in Brijesh Singh v. State of Karnataka, 2002(2) RCR(Crl.) 330 (Karnataka) held that passport is the property of the person and permitted the delivery of custody of passport on furnishing security to the tune of Rs. 2 lacs. Besides, the order of Magistrate relating to delivery of custody of passport of the accused, it was held, is neither interlocutory order simpliciter nor final order and revision against the said order is maintainable.

14. The Hon'ble Delhi High Court in Manmohan Singh v. C.B.I., 2004 Crl.L.J. 2919 considered the contention that the petitioner therein had travelled abroad with permission of the Court on as many as eight occasions and on each occasion the Court had desired of him to furnish a bank guarantee/FDR for a substantial amount. It was held that where the petitioner had been allowed to travel abroad on various occasions and had not belied the trust of the Court bestowed upon him and neither caused any obstruction in the trial nor has he abused his liberty, in any manner, it would be appropriate and in the interest of justice to modify the condition of bail that requires him to surrender his passport to the Court and not to leave the country without prior permission of the Court by deleting the same.

15. In the case in hand, as already noticed, the petitioners Arun Kapur and Akshay Kapur have gone abroad on one occasion after registration of the FIRs and have returned. Besides, they do have business dealings and commitments to fulfil for which they are required to go abroad. The trial in the case can carry on for the short duration they go abroad. Even otherwise, learned counsel for the petitioners has stated that the petitioners would appear on all material dates on which their presence is required. The Hon'ble Supreme Court in M/s. Bhaskar Industries Ltd. v. M/s. Bhiwani Denim and Apparels Ltd. and others, 2001(4) RCR(Crl.) 137 (SC) : AIR 2001 SC 3625 [LQ/SC/2001/1871] has held that it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence on his personal presence would itself inflict enormous sufferings or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. Therefore, in the interest of the business, discretion is given to the Magistrate to dispense with the personal appearance of the petitioner during trial of the case. In the circumstances, during the absence of the petitioners, the proceedings in the case would not be affected for the short duration that they are abroad.

16. Keeping in view the aforenoticed facts and circumstances, it would be just and expedient to allow the petitioners to go abroad subject to the conditions as enumerated hereinafter:

(i) The petitioners would execute a personal bond for a sum of Rs. 10 lacs each to the satisfaction of the trial Magistrate, undertaking to appear in Court after a period of three months.

(ii) The petitioners shall bind themselves that they shall return from abroad and appear before the learned trial Magistrate, for the purpose of trial.

(iii) The petitioners shall also furnish two sureties in the sum of Rs. 10 lacs each to the satisfaction of the learned trial Magistrate, for their return from abroad and appearance before the Court.

(iv) The sureties and bonds shall be accepted and after acceptance of the sureties a period of three months shall be given to the petitioners to go abroad.

(v) On furnishing of the necessary sureties and bonds as also the undertaking with the conditions aforenoticed and fixing the time for return of the petitioners, the passport of the petitioners shall be released to them and they would be permitted to go abroad.

(vi) On return, the petitioners shall continue to be bound by the old bonds and conditions imposed while releasing the petitioners on bail and the conditions imposed for their going abroad shall cease to be operative.

(vii) During the period, the petitioners are abroad their personal appearance shall be exempted and they shall be permitted to appear through their counsel.

With the above observations, the criminal miscellaneous petitions stand disposed of.

Thereafter, the petitioners shall be at liberty to approach the trial Magistrate for further permission to go abroad and their request shall be considered in accordance with law.