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2021 (3) TMI 637 - HC - CustomsFragrant violation of the judicial comity of Courts - Non application of mind while allowing bail - Permission to travel abroad to her home for one year from 06.01.2021 to 05.01.2022 - Sumuggling of Gold - HELD THAT - It is essential to observe that even if the circumstances after the order dated 31.08.2020 had in any manner been changed, it was always open to the applicant to file the application before the Trial Court seeking permission to travel abroad to seek redressal in accordance with law by either seeking a review of the order dated 31.08.2020 of this Court or filing a fresh petition in relation thereto or assailing the order dated 31.08.2020 of this Court before the Hon ble Supreme Court but in any event there could not have been any concealment of the facts that vide order dated 31.08.2020 in CRL.M.C.1529/2020, the prayer made by Begaim Akynova, holder of Khazakistan passport no.8622501 i.e. the applicant herein in relation to the very same complaint case qua which the allegations had been made against Begaim Akynova and the co-accused in relation to their apprehension on 13.09.2019 at the IGI Airport, New Delhi, with a recovery of 1875 gms of gold from Begaim Akynova holder of Khazakistan passport no.8622501 had been considered and the same was declined. Whilst setting aside the impugned order dated 06.01.2021 of the learned CMM, PHC, New Delhi vide which permission was granted to the respondent herein to travel abroad, which order is hereby set aside in toto, it is essential to observe that most unfortunately there is even a representation for the Department i.e. Department of Customs also on the date 06.01.2021 before the learned Trial Court via counsel Mr.Vishal Chadha, who the learned SPP for the Department of Customs, Mr.Satish Aggarwala present today submits is one of the counsel representing the Customs Department before the District Courts. Information be sent to the Chairman, Bar Council of India of the proceedings of the present matter which be sent through the Registrar General of this Court in relation to the manner of which the proceedings in relation to the application filed by Begaim Akynova have been conducted both by the learned counsel for Department of Customs as well as by the learned counsel for the applicant Begaim Akynova i.e. respondent to the present petition - Furthermore, the learned Trial Court seized of the proceedings on the date 06.01.2021 i.e. the learned CMM, New Delhi, has apparently not chosen to inquire as to what was the fate of the prayer made by the applicant before the learned Trial Court in proceedings before the High Court under Section 482 of the Cr.P.C., 1973 vide order dated 31.08.2020 despite the applicant thereof having mentioned therein that the High Court of Delhi had allowed the co-accused Aida Askerbkova to travel abroad to her home. That the learned Trial Court did not even choose to ascertain the status of the proceedings dated 31.08.2020 in relation to any orders that could or may have been passed and had in fact been passed in the instant case in CRL.M.C.1529/2020 whereby the prayer made by Begaim Akynova to travel abroad had been expressly declined vide paragraph 24 thereof, also cannot be overlooked. The matter be also placed before the Inspecting Committee of Judges of this Court qua the learned Trial Court in relation to the virtual non application of mind in the instant case and disregard to the hierarchy of Courts - Petition disposed off.
Issues Involved:
1. Setting aside the impugned order dated 06.01.2021 by the learned CMM, New Delhi. 2. Compliance with judicial comity and hierarchy. 3. Concealment of facts by the respondent. 4. Conduct of the Department of Customs and their counsel. 5. Application of mind by the learned Trial Court. Detailed Analysis: 1. Setting aside the impugned order dated 06.01.2021 by the learned CMM, New Delhi: The petitioner sought the setting aside of the impugned order dated 06.01.2021, which allowed the respondent, Begaim Akynova, to travel abroad for one year subject to certain conditions. The order was challenged on the grounds that it was unreasoned and lacked a fair adjudication process. The petitioner relied on the Supreme Court's verdict in "Mahipal Vs. Rajesh Kumar @ Polia & Anr." which emphasized the necessity of reasoned judicial orders, especially in matters concerning bail and liberty. 2. Compliance with judicial comity and hierarchy: The petitioner argued that the respondent had violated the judicial comity of courts and the hierarchy of the judicial system. The respondent had previously sought permission to travel abroad, which was expressly declined by the High Court in its order dated 31.08.2020. The respondent did not disclose this fact in her subsequent application before the learned CMM, New Delhi. The High Court had specifically observed that the prayer made by Begaim Akynova to travel abroad could not be granted. 3. Concealment of facts by the respondent: The respondent's application before the learned CMM, New Delhi, did not mention the High Court's order dated 31.08.2020, which had declined her prayer to travel abroad. This omission was considered deliberate and significant. The High Court noted that even if circumstances had changed, the respondent should have sought redressal through appropriate legal channels, such as seeking a review of the order or filing a fresh petition. 4. Conduct of the Department of Customs and their counsel: The High Court observed that there was a representation for the Department of Customs on 06.01.2021 before the learned Trial Court. The counsel for the Department did not make any inquiries regarding the status of the previous High Court order, which declined the respondent's prayer to travel abroad. This lack of diligence was noted as a failure on the part of the Department's counsel. 5. Application of mind by the learned Trial Court: The High Court criticized the learned CMM, New Delhi, for not inquiring about the status of the previous High Court order dated 31.08.2020. The learned Trial Court did not ascertain whether any orders had been passed in the instant case, despite the respondent mentioning that the High Court had allowed the co-accused to travel abroad. This lack of inquiry and disregard for the hierarchy of courts led to the setting aside of the impugned order. Conclusion: The High Court set aside the impugned order dated 06.01.2021 of the learned CMM, New Delhi, which granted permission to the respondent to travel abroad. The Court emphasized the importance of reasoned judicial orders, compliance with judicial comity, and the necessity for transparency and diligence by both the respondent and the Department of Customs. The matter was also referred to the Bar Council of India and the Inspecting Committee of Judges for further action regarding the conduct of the counsels and the learned Trial Court.
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