Hilomi Samirbhai Deliwala (Jain) vs State Of Gujarat

1. The petitioner has approached this Court invoking Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, with the grievance that, though she has got admission for further studies abroad, required 'no objection certificate' is not being issued by the police authorities, because of pendency of one criminal case against her, arising from a road accident.

2. Heard learned advocates. Mr. Prajapati, learned advocate for the petitioner and Mr. Dabhi, learned Additional Public Prosecutor for the State have taken this Court through the material on record.

3. Mr. Prajapati, learned advocate for the petitioner has submitted that, the petitioner be granted appropriate relief to enable her to go abroad for further studies, on any condition which this Court deems proper.

R/SCR.A/3503/2020 ORDER

4. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under :

4.1 The date of birth of the petitioner is 13.08.1996.

4.2 On 04.04.2018, while the petitioner was driving car, an accident took place. One lady pedestrian was hit, she got injured and died after three days. An offence therefore came to be registered on 07.04.2018 at the Sabarmati Police Station, Ahmedabad City being C.R.- I No.39 of 2018 punishable under Sections 279, 337, 338, 304-A of the Indian Penal Code and Sections 177, 184 and 134-B of the Motor Vehicle Act. On being referred to the Court, it is registered as Criminal Case No.89268 of 2018 in the Court of the Chief Metropolitan Magistrate, Ahmedabad. The said case is pending.

4.3 The petitioner has completed her graduation. She intends to go abroad for higher studies.

4.4 She has got admission in Trinity Western University at Langley, British Colombia, Canada for the course of MBA (International Business), starting from September, 2020. Fees are also paid on her behalf.

4.5 She needs to get VISA for it, which she intends to apply. One of the requirements is that 'no objection certificate' should be obtained from the concerned police authorities.

4.6 Police has given certificate dated 29.07.2020, inter alia mentioning therein the details of the above noted criminal Page 2 of 4 Downloaded on : Fri Aug 28 23:24:27 IST 2020 R/SCR.A/3503/2020 ORDER case. No fault can be found in it, since it is a matter of record.

4.7 The petitioner approached the Trial Court with the prayer that, the police authorities be directed to give certificate. The request, in substance was to the effect that, police be directed to give clear NOC. The Magistrate has rejected the said request. No fault can be found in that order either.

4.8 The petitioner has approached this Court for appropriate relief.

5. This Court is faced with the situation where, neither the police authorities can be directed to give NOC in favour of the petitioner without any reference to the pending case, nor the Magistrate Court can be said to have committed any error by not accepting the request of the petitioner. Still, the fact remains that, for the trial of a road accident, which is less likely to even commence for years together, the career of the petitioner would be ruined. A citizen can not be left helpless in such circumstances. Further, considering the nature of the offence alleged, the chances of the conviction being recorded, and if at all it is done - what punishment (imprisonment and/or fine) would be imposed on the petitioner, are the issues which need to be kept in view even at this stage. On conjoint consideration of all these aspects, in the view of this Court, it would be very harsh not to allow the petitioner to travel abroad for her studies. It may result in irreversible situation for the petitioner, for which, no compensation can subsequently be given. Appropriate relief therefore needs to be granted to her, invoking powers under Article 226 of the Constitution of India.

R/SCR.A/3503/2020 ORDER

6. For the above reasons and in the peculiar facts noted above, in exercise of powers under Article 226 of the Constitution of India, the following order is passed.

6.1 It is declared that, the High Court of Gujarat or any Court subordinate thereto (in the present case - the Court of the Chief Metropolitan Magistrate, Ahmedabad) do not have any objection, if the petitioner is granted VISA by any country for her studies or for any other purpose, inspite of the fact that, the present petitioner is facing a Criminal Case No.89268 of 2018 in the Court of the Chief Metropolitan Magistrate, Ahmedabad arising from the road accident registered by the Sabarmati Police Station, Ahmedabad City vide C.R.- I No.39 of 2018 punishable under Sections 279, 337, 338, 304-A of the Indian Penal Code and Sections 177, 184 and 134-B of the Motor Vehicle Act.

6.2 While considering VISA application of the present petitioner, the concerned Authorities - Embassy / Consulate / High Commissioner can take into consideration the above declaration.

6.3 Rule is made absolute in above terms. Direct service is permitted.

(PARESH UPADHYAY, J) SALIM/MHDAVE/34 Page 4 of 4 Downloaded on : Fri Aug 28 23:24:27 IST 2020