2009 ALL MR (Cri) 1078
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. TAHILRAMANI, J.
State Of Maharashtra Vs. Rajkumar Basantani
Criminal Revision Application No.359 of 2008
1st October, 2008
Petitioner Counsel: Mr. V. B. KONDE-DESHMUKH
Respondent Counsel: Mr. MANISH BOHRA
Criminal trial - Accused absconding - Red corner notice issued - Stay of notice for one week to enable accused to return to India from U.S.A. and surrender to Court - Apprehension that stay for limited period may enable him to travel from U.S.A to any other country and then he may not be traceable - Hence, Ministry of External Affairs directed to issue Emergency Certificate in lieu of revoked passport for his travel from New York, U.S.A. to Mumbai in India. (Paras 8, 9, 11)
2. The respondent-accused was the Managing Director of Soundcraft Industries Ltd.. The said company was receiving Fixed Deposits from the investors. The prosecution case is that the Company paid regular interests to the Investors till March, 2004. Thereafter, there was default in payment of interest and also default in returning the Fixed Deposit amounts on maturity. Hence, FIR came to be lodged against the respondent. The said case is numbered as Special Case No.12 of 2005 and it is pending before the Sessions Court at Mumbai.
3. It is the prosecution case that during the course of investigation, the respondent fled outside India. Hence Red Corner notice came to be issued against him after following proper procedure. The said Red Corner Notice bears No.A/82/1-2005.
4. The respondent preferred an application before the Sessions Court where Special Case No.12 of 2005 is pending. In the said application, the respondent ought permission for surrendering before the said Court within a week and till then he had prayed for stay to the Red Corner notice issued against him. By order dated 5th July, 2008 the said application came to be allowed. The operative part of the said order reads as under :
Red corner notice dated 3.12.2004 issued against the applicant/accused is hereby stayed upto 10.7.2008 subject to complying following conditions :-
(1) The applicant/accused to surrender before this court on working day preferably in first half of the day.
(2) He should surrender within 10 hours from the time of landing in India. The intimation about his boarding, landing (before 18 hours) be given in advance to the N.A. so that if N.A. wants they can remain present at Airport and also escort to the applicant/accused and they can also remain present at the time of surrender before this Court. If N.A. want to escort the accused it is directed to see that the applicant/accused first appeared before this court.
(3) At the time of surrender he should deposit passport before this court to the officer of N.A.
(4) The Advocate for the applicant to communicate this order to the N.A. and N.A. to take further action urgently.
(5) On behalf of the N.A. Shri. A. B. Honmane, API attached to the office of N.A. is present. He is directed to inform about this order to Senior Inspector of Police, E.O.W., Unit No.7, for compliance of this order latest till 7.7.2008.
(6) Copy of this order, attested by Sheristedar of this Court be supplied to the Advocate for the applicant and to the N.A..
(7) In this way, application is disposed of."
5. Being aggrieved by the said order, the applicant-State of Maharashtra has preferred this Revision Application. The learned APP stated that there is no provision for stay of the red corner notice. Either the notice has to be set-aside in its entirety or the notice will stand as it is and there can be no stay of the red corner notice for a limited period of time. It was submitted that the red corner notice cannot be stayed in respect of one country and the stay would extend to all the countries wherein the copies of the red corner notice have been sent. The learned APP expressed apprehension that if the red corner notice is stayed then in that case, it would be possible for the respondent to travel from U.S.A. to any other country. In which case, it would be impossible for the investigating agency to again trace the respondent-accused.
6. It is seen that the respondent left India on 5th April, 2004 and since then he has not been available. The investigating agency has not been able to secure the presence of the respondent for investigation as well as for trial in all the cases in which he is being prosecuted.
7. The learned Advocate for the respondent-accused stated that if the officers wish they can remain present at the airport in Mumbai and escort the respondent to the Court and thus they can ensure that the respondent surrenders before the Court. However, the learned APP stated that if the said red corner notice is stayed, the respondent may go to some other country and then it would be impossible to trace the respondent. The learned APP submitted that as at present there is a red corner notice against the respondent, the respondent is not able to leave U.S.A. because when the respondent goes to any airport in U.S.A. he would be detained by the authorities in U.S.A..
8. It is seen that the respondent has made up his mind to surrender before the Court. Despite the fact that the respondent left India in the year, 2004, the investigating agency could not lay their hands on the respondent, so also his whereabouts could not be traced. Only after the respondent preferred an application for surrendering before the Court, the investigating agency came to know about the whereabouts of the respondent. In my opinion, if the respondent voluntarily comes to India and surrenders before the Court the investigation would progress and the question of repayment of the amount of depositors may also be settled. So also time and energy of the investigating agency and the State would be saved. However, I find much merit in the submission of the learned APP for the State that it would not be possible to stay the red corner notice for a period of one week as directed by the learned Sessions Judge. Hence, the learned APP was asked to take instructions as to how presence of respondent could be secured in Mumbai.
9. After taking instructions, the learned APP has stated that in order to enable the respondent to come to India, Ministry of External Affairs, New Delhi, may be directed to issue Emergency Certificate in lieu of revoked passport number Z-113768 of the respondent for his travel from New York in U.S.A. to Mumbai in India. The learned APP has tendered copy of the written instructions received by him, which is taken on record and marked "X" for identification.
10. The learned APP further states that the officers from E.O.W., Unit-7, Mumbai will remain present at the Airport in Mumbai in order to escort the respondent to the Sessions Court, Mumbai where Special Case No.12 of 2005 is pending.
[i] Ministry of External Affairs, New Delhi, is directed to issue Emergency Certificate in lieu of revoked passport number Z-113768 of respondent, for travel of the respondent from U.S.A. J.F.K. Airport, New York to International Airport at Sahar, Mumbai, India.
[ii] One way travel documents be issued to the respondent.
[iii] The respondent shall provide the complete details of his flight and travel schedule when he is coming to India, so that concerned immigration authorities of U.S.A. can be requested not to detain him.
[iv] The respondent shall provide all his flight and other details by 16th October, 2008 to the prosecuting agency i.e. EOW, Unit-VII. He will arrive at International Airport at Sahar, Mumbai only.
[v] The respondent shall take non-stop flight from New York to Mumbai and he shall not deplane during journey.
[vi] Prior to 15 days of his arrival to Mumbai, the respondent shall intimate all details of travel to Mumbai to concerned authorities i.e. Senior Police Inspector, E.O.W. Unit-VII, Mumbai, Ministry of External Affairs - New Delhi, C.B.I. and the N.C.B. (National Central Bureau) New Delhi i.e. Interpol so that they can take necessary action and forward copy to others for necessary action.