interesting issues about the interface between the fundamental right to travel abroad and its curtailment under a judicial order as an incident to regulate conditions governing the grant of bail
whether the appellant is likely to flee from justice if he were to be permitted to travel to the US, we find, on the basis of the previous record of the appellant, that there is no reason or justification to deny him the permission which has been sought to travel to the US for eight weeks. The appellant is an Indian citizen and holds an Indian passport. While it is true that an FIR has been lodged against the appellant, that, in our view, should not in itself prevent him from travelling to the US, where he is a resident since 1985, particularly when it has been drawn to the attention of the High Court and this Court that serious consequences would ensue in terms of the invalidation of the Green Card if the appellant were not permitted to travel. The record indicates the large amount of litigation between the family of the appellant and the complainant. Notwithstanding or perhaps because of this, the appellant has frequently travelled between the US and India even after the filing of the complaint and the FIR. We accordingly are of the view that the application for modification was incorrectly rejected by the High Court and the appellant ought to have been allowed to travel 13 Writ Petition Urgent 2 of 2020 19 to the US for a period of eight weeks. We accordingly permit the appellant to do so, subject to his furnishing an undertaking to this Court before the date of travel that he will return to India after the expiry of a period of eight weeks and that he shall be available on all dates of hearing before the court of criminal jurisdiction, unless specifically exempted from personal appearance. The undertaking shall be filed in this court before the appellant undertakes travel. On the return of the appellant after eight weeks and if it becomes necessary for him to travel to the US, the appellant shall apply to the concerned court for permission to travel and any such application shall be considered on its own merits by the competent court. The appellant shall travel only upon the grant of permission and subject to the terms imposed. The passport of the appellant shall be handed over to the appellant to facilitate his travel, subject to the condition that he shall deposit it with the investigating officer immediately on his return.
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 648 of 2020
(Arising out of SLP(Crl) No 3420 of 2020)
Parvez Noordin Lokhandwalla ...Appellant(s)
Versus
State of Maharashtra & Anr. ...Respondent(s)
J U D G M E N T
Dr Dhananjaya Y Chandrachud
1 Leave granted.
2 This appeal arises from a judgment and order of a Single Judge of the High Court of
Judicature at Bombay1 dated 23 July 2020. The High Court, by its order which is in
appeal, declined to modify its earlier order dated 19 May 2020 so as to permit the
appellant to travel to the US for a period of eight weeks from 25 July 2020 to 6
September 2020. The appellant sought the leave of the High Court to do so since as
a Green Card holder, it was mandatory for him to return to the US within a stipulated
period of his departure from that country, failing which the conditions for
revalidation of the Green Card would not be fulfilled. The High Court declined to
relax the conditions imposed by it for the grant of interim bail on the ground that an
FIR has been registered against the appellant. Though the period during which the
appellant sought to travel abroad has lapsed, the cause survives. The appeal raises
interesting issues about the interface between the fundamental right to travel
1 “High Court”
2
abroad and its curtailment under a judicial order as an incident to regulate
conditions governing the grant of bail.
3. The genesis of the present case arises from a private complaint which was filed in
January 2014 by Mehraj Rajabali Merchant in the court of the JMFC Thane alleging
that the appellant has fabricated a Power of Attorney dated 19 December 2011 by
forging the signature of his brother, Shalin Lokhandawalla. On 10 April 2014, the
JMFC passed an order, by which he directed an investigation under Section 156(3)
of the Code of Criminal Procedure 19732
in terms of the following directions:
“1. The Kapurbavdi police station is directed to register the
crime and investigate into the matter.
2. Further it is hereby directed to submit the report before the
court for taking action, if any, u/s.340 of Cr.P.C.”
4 A First Information Report was registered against the appellant on 22 April 2014 in
which the appellant is alleged to be involved in offences punishable under Sections
420, 467, 468, 469, 470, 471 and 474 of the Indian Penal Code 18603
read with the
provisions of Section 34.
5 The appellant and the co-accused, Arun Fatehpuria, had preferred an application
for grant of anticipatory bail before the Sessions Court Thane, which granted interim
protection from arrest to both the accused on 17 February 2018. On 16 April 2018,
the Sessions Court at Thane confirmed the interim order and granted anticipatory
bail to the co-accused, Arun Fatehpuria, primarily on the basis that the allegations in
the complaint depend largely on documentary material, rendering custodial
interrogation unnecessary. However, the interim order protecting the appellant was
2
“CrPC”
3
“IPC”
3
cancelled because the counsel representing the appellant withdrew the
application on his behalf.
6 The appellant is an Indian citizen and holds an Indian passport. He holds a Green
Card, enabling him to reside in the US. He has resided in the US since 1985. However,
between 10 March 2015 and 10 January 2020, the appellant visited India on sixteen
occasions, details of which have been filed on an affidavit dated 7 August 2020 in
these proceedings. A tabulated chart (Annexure P-3 to the affidavit) contains
details of his travel history, and is extracted below:
“Sr.
No.
Arrival Date Departure Date
1. 10/3/2015 Mumbai Mumbai
2. 19/03/2015 Mumbai
3. 21/4/2015 Mumbai
4. 22/4/2015 Mumbai
5. 7/5/2015 Mumbai
6. 10/5/2015 New Delhi
7. 21/8/2015 Mumbai
8. 24/8/2015 Mumbai
9. 3/2/2016 New Delhi
10. 11/2/2016 New Delhi
11. 14/2/2016 New Delhi
12. 24/2/2016 New Delhi
13. 24/6/2016 Mumbai
14. 28/7/2016 Mumbai
15. 10/2/2017 New Delhi
16. 4/5/2017 Mumbai
17. 10/7/2017 Mumbai
18. 15/7/2017 Mumbai
19. 24/7/2017 Mumbai
20. 9/8/2017 Mumbai
21. 19/10/2017 Mumbai
4
22. 3/11/2017 Mumbai
23. 11/11/2017 India (City not
known)
24. 26/2/2018 Mumbai
25. 1/6/2018 Mumbai
26. 10/7/2018 India (City not
known)
27. 26/9/2018 Mumbai
28. 26/10/2018 Mumbai
29. 22/11/2018 Mumbai
30. 14/12/2018 Mumbai
31. 4/4/2019 Mumbai
32. 22/5/2019 Mumbai
33. 10/1/2020 Mumbai
7 The appellant arrived in India on 10 January 2020. He was arrested on 21 February
2020 at the point of departure in Mumbai in pursuance of a look-out notice which
appears to have been issued on the basis of the FIR dated 22 April 2014. An
application for bail was filed before the Sessions Court in the first week of March
2020 but was rejected on 4 May 2020. On 23 April 2020, the appellant filed an
application for bail before the High Court of Judicature at Bombay. The High Court,
by its order dated 19 May 2020, granted temporary bail to the appellant, subject to
the following conditions:
“a) The applicant be released on temporary bail for a period of
eight weeks in C.R. No.I-156 of 2014 registered with
Kapurbavadi Police Station, Thane on his furnishing P.R. Bond
of Rs.25,000/- with one or more sureties to make up the
amount.
b) Till the procedure for furnishing sureties is completed, the
applicant is permitted to furnish cash bail.
c) Before his actual release from jail, the Applicant is directed
5
to surrender his Passport and/or Green Card issued by the
United States of America with the Investigating Agency, if
not earlier seized by it or other Government Authorities.
d) After his release from jail, the applicant is directed not to
leave jurisdiction of Thane Police Commissionerate without
prior permission of the trial Court.
e) Place the Application for regular bail before the regular
Court after normal functioning of the Court begins.”
8 On 10 June 2020, the appellant filed an IA before the High Court seeking permission
to visit the US for a period of eight weeks. The High Court was hearing only urgent
applications during the course of the lock down occasioned by the outbreak of
Covid-19. The Registry of the High Court informed him on 15 June 2020 that no
urgency was found in the praecipe for urgent listing. The appellant filed fresh
praecipes for urgent listing on 17 June 2020 and 19 June 2020. On 26 June 2020, a
Single Judge (Justice S. K. Shinde) expressed his inability to take up the IA for
relaxation of the conditions attached to the grant of interim bail since the order
dated 19 May 2020 had been passed by Justice A. S. Gadkari. The contention of
the appellant, it may be noted, has been that under the conditions prescribed by
the US Immigration and Nationality Act 1952, he has to return for a short period for
revalidating the Green Card. Among them are the following:
“(C) An alien lawfully admitted for permanent residence in
the United States shall not be regarded as seeking an
admission into the United States for purposes of the
immigration laws unless the alien-
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a
continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having
departed the United States,
6
(iv) has departed from the United States while
under legal process seeking removal of the
alien from the United States, including removal
proceedings under this chapter and
extradition proceedings,
(v) has committed an offense identified in section
1182(a)(2) of this title, unless since such offense
the alien has been granted relief under section
1182(h) or 1229b(a) of this title, or is attempting
to enter at a time or place other than as
designated by immigration officers or has not
been admitted to the United States after
inspection and authorization by an immigration
officer.”
9 The High Court, by its order dated 26 June 2020, rejected the application for
considering his prayer for relaxing the conditions attaching to the grant of interim
bail following which the appellant moved this Court4
. By an order dated 13 July
2020, this Court requested the High Court to take up the IA filed by the appellant
seeking permission to travel to the US, at an early date. This Court, in its order dated
13 July 2020, noted the submission of the learned counsel for the appellant in
paragraph 2 of its order and then issued the following directions:
“2. Mr Subhash Jha, learned counsel appearing on behalf
of the petitioner, submitted that in the event that the
petitioner is unable to arrive in the US by 29 July 2020, he will
not be in a position to retain his Green Card as he is required
to return to the US within 180 days of his departure and his
status will then be that of an alien seeking entry into the US.
3. Since the interim application which has been filed by the
petitioner is pending before the High Court, we request the
High Court to take it up at an early date having regard to
the timeline which has been set out in the submissions which
have been recorded above. We clarify that since the interim
application is still pending before the High Court, we have
not expressed any view on the merits of the matter. The
observations contained in the order declining to entertain
the praecipe shall not come in the way of the disposal of
the interim application. The Special Leave Petition is
4 SLP (Crl) No 3034 of 2020
7
accordingly disposed of.
4. The Registry of the Bombay High Court may obtain, if
required, administrative directions of the Hon'ble Chief
Justice for the assignment of the interim application.”
10 In pursuance of the order of this Court, the High Court heard the IA and has
declined to grant permission to the appellant to visit the US for a period of eight
weeks, by its order dated 23 July 2020.
11 Mr. Subhash Jha, learned counsel appearing on behalf of the appellant submits that:
(i) The appellant is a resident of the US since 1985; holds a Green Card since
2010 and has not violated any provision of law in the US;
(ii) The appellant and the members of his family have been involved in a long
drawn out litigation against the complainant, both of a civil and criminal
nature;
(iii) In the private complaint that was instituted by the complainant in January
2014, the co-accused was granted anticipatory bail by the Sessions Judge,
Thane on the ground that the complaint essentially turns upon documents;
(iv) Between 2015 and 2020, the appellant has visited India on as many as sixteen
occasions;
(v) The family of the appellant, which includes him, his brother Shalin and two
sisters, jointly owns properties at Thane and Panvel worth more than Rs 100
crores and the appellant is the only member of the family who is looking after
the litigation;
8
(vi) Far from being a fugitive from justice, the appellant has consistently travelled
to India and the mere filing of the private complaint and the registration of
an FIR should not preclude him from travelling to the US, failing which he
would incur serious consequences of the invalidation of his Green Card;
(vii) While the court which grants bail under Section 439 of the Code of Criminal
Procedure 1973 can impose conditions which ensure the presence of the
accused to face trial, the conditions must balance the liberty of the accused
and not result in the arbitrary deprivation of the right to livelihood; and
(viii) The order of the JMFC dated 10 April 2014 has been passed as a matter of
routine course without application of mind and has been misused by the
police machinery to harass and arrest the appellant at the behest of an
adversary.
12 Mr Jha further submitted that the appellant would undertake to come to India on
every hearing of the criminal cases before the concerned courts and he has no
intention to evade the process of law. Mr. Jha has stated that in pursuance of the
notice issued by this court, the complainant has been served.
13 On the other hand, Mr. Sachin Patil, learned counsel appearing on behalf of the
State of Maharashtra, who appeared in pursuance of the notice issued by this Court
on 29 July 2020, submitted that the conduct of the appellant has been improper. Mr.
Patil stated that, on the grant of anticipatory bail by the Sessions Court in 2018, the
appellant left for the US, without seeking permission, though as a matter of fact, he
returned subsequently to India on several occasions until 2020, when he was
arrested. It was urged that the appellant has not complied with the conditions on
which he was granted interim bail for eight weeks and he ought to have, but has
9
not, surrendered after the period was over. Mr. Patil submitted that since the
appellant is facing a criminal trial, the Court may expedite the course of the trial, but
not permit him to leave for the US at this stage; there being no guarantee of his
return.
14 The language of Section 437(3) of the CrPC which uses the expression “any
condition… otherwise in the interest of justice” has been construed in several
decisions of this court. Though the competent court is empowered to exercise its
discretion to impose “any condition” for the grant of bail under Sections 437 (3) and
439 (1) (a) of the CrPC, the discretion of the court has to be guided by the need to
facilitate the administration of justice, secure the presence of the accused and
ensure that the liberty of the accused is not misused to impede the investigation,
overawe the witnesses or obstruct the course of justice. Several decisions of this
Court have dwelt on the nature of the conditions which can legitimately be
imposed both in the context of bail and anticipatory bail.
15 In Kunal Kumar Tiwari v The State of Bihar5
, the appellant who was alleged to have
committed offences under Sections 498-A, 341, 323, 379 and 506, read with Section
34 IPC and Sections 3 and 4 of the Dowry Prohibition Act 1961 was denied
anticipatory bail by the High Court. However, the High Court directed that if the
appellant was willing to treat his wife with dignity and care but she refuses to live
with him or both parties prefer to obtain a divorce by mutual consent, the court
below would release the appellant on provisional bail. The trial court was permitted
to confirm the provisional bail after one year and was directed to monitor the
relationship between the parties, who would appear before it every three months.
This Court, while holding that the conditions imposed by the High Court on grant of
5
(2018) 16 SCC 74
10
bail were onerous and arbitrary, observed:
“9. …Sub-clause (c) of Section 437(3) allows Courts to
impose such conditions in the interest of justice. We
are aware that palpably such wordings are capable
of accepting broader meaning. But such conditions
cannot be arbitrary, fanciful or extend beyond the
ends of the provision. The phrase 'interest of justice' as
used under the Sub-clause (c) of Section 437(3)
means "good administration of justice" or "advancing
the trial process" and inclusion of broader meaning
should be shunned because of purposive
interpretation.
10. … from the perusal of the impugned order it is clear that
the court exceeded its jurisdiction in imposing such
arbitrary conditions. Some of the conditions imposed
are highly onerous and are absurd. Such onerous
anticipatory bail conditions are alien and cannot be
sustained in the eyes of law. The conditions imposed
appear to have no nexus with the good
administration of justice or advancing the trial process,
rather it is an over-zealous exercise in utter disregard
to the very purpose of the criminal justice system. In
view of the above, the impugned order passed by
the High Court is set aside and the interim protection
granted to the Petitioner by this Court… is made
absolute.”
16 In Dataram Singh v State of Uttar Pradesh6
, this Court observed that:
“7. ….The grant or refusal of bail is entirely within the discretion of
the judge hearing the matter and though that discretion is
unfettered, it must be exercised judiciously and in a humane
manner and compassionately. Also, conditions for the grant of bail
ought not to be so strict as to be incapable of compliance,
thereby making the grant of bail illusory.”
17 In Sumit Mehta v. State (NCT of Delhi)7
, in the context of conditions under Section
438 (2) of the CrPC, this Court observed that a balance has to be struck between
the rights of the accused and the enforcement of the criminal justice system while
6
(2018) 3 SCC 22
7
(2013) 15 SCC 570
11
imposing conditions on the grant of bail:
“11. While exercising power Under Section 438 of the Code, the
Court is duty bound to strike a balance between the individual's
right to personal freedom and the right of investigation of the
police. For the same, while granting relief under Section 438(1),
appropriate conditions can be imposed Under Section 438(2) so as
to ensure an uninterrupted investigation. The object of putting such
conditions should be to avoid the possibility of the person
hampering the investigation. Thus, any condition, which has no
reference to the fairness or propriety of the investigation or trial,
cannot be countenanced as permissible under the law. So, the
discretion of the Court while imposing conditions must be exercised
with utmost restraint.”
This Court also discussed the scope of the discretion of the court to impose “any condition”
on the grant of bail and observed:
“15. The words "any condition" used in the provision should not be
regarded as conferring absolute power on a Court of law to
impose any condition that it chooses to impose. Any condition has
to be interpreted as a reasonable condition acceptable in the
facts permissible in the circumstance and effective in the
pragmatic sense and should not defeat the order of grant of bail.”
18 In Barun Chandra Thakur v. Ryan Augustine Pinto8
, this Court restored a condition
mandating that the respondent seek prior permission from a competent court for
travel abroad. The condition, which was originally imposed by the High Court while
granting anticipatory bail was subsequently deleted by it. This Court made the
following observations with respect to imposing restrictions on the accused’s right to
travel:
“9. ….There could be no gainsaying to that the right to travel
abroad is a valuable one and an integral part of the right to
personal liberty. Equally, however, the pre-condition of securing
prior permission before travelling abroad is a crucial ingredient
which undoubtedly was engrafted as a condition for the grant of
anticipatory-bail in this case. ……At best, the condition for seeking
8 Criminal Appeal No. 1618 of 2019 (Arising out of SLP (Crl.) No. 9873 of 2019), order dated 21 October 2019.
12
permission before travelling abroad could have been regulated,
not deleted altogether.”
19 This Court has passed multiple orders previously allowing an accused enlarged on
bail to travel abroad. In Ganpati Ramnath v State of Bihar9
, this Court allowed an
accused-applicant to travel abroad for medical treatment, modifying its earlier bail
order, noting that the applicant had travelled abroad on the ground of medical
necessity on six occasions with the permission of the court and had returned. In K.
Mohammed v The State of Kerala10, this Court allowed the accused-appellant to
travel abroad to meet in the exigencies of a family situation. In Tarun Trikha v State
of West Bengal11, this Court allowed the accused-petitioner to travel to Indonesia in
connection with his employment and to return once the work was completed. In
Pitam Pradhan v State of A P12,this Court while granting anticipatory bail, permitted
the petitioner to travel abroad noting that his job required him to travel abroad at
frequent intervals and may lose his employment if he were not permitted to travel
abroad.
20. Having heard the learned counsel appearing on behalf of the appellant and the
learned counsel for the State of Maharashtra, it is necessary for the Court to notice
at the outset that a large amount of litigation is pending between the appellant
and the complainant, Mehraj Rajabali Merchant. The appellant has furnished
details of the litigation between the parties as well as of the criminal prosecutions, in
his affidavit dated 7 August 2020. This has been summarised in a tabular statement:
9 Crlmp. Nos. 6304 & 6305/2017 in Criminal Appeal Nos. 1187/2004, order dated 4 May 2017.
10 Criminal Appeal Nos. 547/2012, order dated 2 March 2020.
11 Special Leave to Appeal Crl. Nos. 4643/2015, order dated 29 May 2015.
12 Special Leave to Appeal (Crl) No(s).9664/2013, order dated 26 February 2014.
13
“I. Cases initiated by Merchants
(Disposed)
Sr.No. Court & Case Parties Disposal
Date
1. Civil SD. Court,
Thane
RCS/200577/2005
Ms. Lokhandwala
Weigh Bridge Vs. M/s
Asam Transport
Disposed
2. 4th Civil Judge
JMFC, Thane
RCC/420380/2010
Firdaus Rajabali
Merchant Vs. Farida
Firoz Lokhandwala
08/10/2010
3. 1st C J Magistrate,
Thane
CR.MA/300998/2013
Firdaus Rajabali
Merchant Vs. Parvez
Noor Lokhandwala
03/01/2014
4. 4th Joint Civil Judge
Sr. Division, Thane
RCS/201541/2001
Firoz Pirbhai
Lokhandwala Vs
Nooruddin Pirbhai
Lokhandwala
16/09/2016
5. Add. Dist. Judge,
Thane
Civil MA/286/2019
Mehraj Rajabali
Merchant Vs.
1. Parvez Noor
Lokhandwala
2. Farida Noor
Lokhandwala
3. Faizmin Amin
Hussain
4. Dinaz Akbar
5. Shalin Noor
Lokhandwala
6. Arun Fathepuria
7. Firadaus Rajabali
Merchant
8. Municipal Comr.
of Thane
25/01/2020
II. Cases initiated by Lokhandwallas
(Disposed)
Sr.No. Court & Case Parties Disposal Date
1. 4th Civil Judge S D,
Thane
RCS/200143/2011
Parvez Noor.
Lokhandwala Vs
Firdaus Rajabali
Merchant
07/01/2013
2. Dist & Session
Court, Thane
Shalin Noor.
Lokhandwala Vs.
11/08/2015
14
Civil
MA/100012/2008
Hindustan Petroleum
3. 2nd Joint Civil
Judge SD, Thane
RCS/201901/2012
Farida Noor.
Lokhandwala Vs.
Farida Firoz
Lokhandwala
22/01/2019
4. 4th Joint Civil
Judge SD, Thane
Sp.
Case/200905/2012
Farida Noor.
Lokhandwala Vs.
Farida Firoz
Lokhandwala
13/09/2019
III. Cases initiated by Merchants (Active)
Sr.
No.
Court & Case Parties Stage Next date
1. 2nd Joint Judge, Sr.
Division, Thane
Sp.
Case/200393/2010
Firdaus Rajabali
Merchant Vs.
Farida Firoz
Lokhandwala
Argument 3.8.2020
2. 2nd Civil Judge,
JD, JMFC, Thane –
Misc. Cr.
Application
799/2017
Firdaus Rajabali
Merchant Vs.
1. Parvez N.
Lokhandwala
2. Farida N.
Lokhandwala
Order 10.8.2020
3. 8th Dist. Judge
MCA/10/2020
Mehraj Rajabali
Merchant Vs.
1. Parvez Noor.
Lokhandwala
2. Farida Noor.
Lokhandwala
3. Faizmin Amin
Husain
4. Dinaz Akbar
5. Shalin Noor.
Lokhandwala
6. Arun
Fatehpuria
7. Firdaus
Rajabali
Merchant
8. Thane
Municipal
Corp.
Commissioner
Notice
Unready
19.08.2020
4. 5th Court Joint
Civil Judge Sr.
Mehraj Rajabali
Merchant Vs.
File of Stay 19.8.2020
15
Div., Thane
Civil
MA/200687/2015
1. Parvez Noor.
Lokhandwala
2. Farida Noor.
Lokhandwala
3. Faizmin Amin
Husain
4. Dinaz Akbar
5. Shalin Noor.
Lokhandwala
6. Arun
Fatehpuria
7. Firdaus
Rajabali
Merchants
8. Thane
Municipal
Corp.
Commissioner
9. Ganesh
Hanuman
Autee
10. Sanjay Salvi
11. Amarjit
Singh Dhri
5. Civil Judge Senior
Division, Thane
Civil
MA/200404/2015
Farida Firoz
Lokhandwala
Vs. Farida Noor.
Lokhandwala
Notice 19.8.2020
6. 5th Court Joint
Civil Judge, Sr.
Div, Thane
RCS/200566/2013
Mehraj Rajabali
Merchant Vs.
Parvez
Nooruddin
Lokhandwala
Evidence 3.9.2020
7. 3rd Joint Civil
Judge Sr. Division,
Thane
Sp.
Case/424/2017
Mehraj Rajabali
Merchant Vs.
Parvez Noor
Lokhandwala
Summons 17/09/2020
IV.Cases initiated by Lokhandwallas (Active)
Sr.
No.
Court & Case Parties Stage Next date
1. 4th Joint Civil
Judge Sr. Division,
Thane
Farida Noor.
Lokhandwala
Vs. Farida
Argument 19/08/2020
16
Civil
MA/200315/2015
Firoz
Lokhandwala
2. 1st CJM, Thane
Cri M.A./91/2014
Farida N.
Lokhandwalla
Vs. Firdaus
Rajabali
Merchant &
Ors.
Arg on Exh.
Unready
24/09/2020
V. Misc Cases
Sr.
No.
Court & Case Parties Stage Next date
1. Supreme Court
SLP (CRL) No.
3420/2020
SLP (CRL)
No.3034/2020
Parvez N.
Lokhandwalla
Vs. State of
Maharashtra
Argument 12/08/2020
(tentative)
2. High Court
LD/VC/BA/24/2020
Parvez N.
Lokhandwalla
Vs. State of
Maharashtra
Argument Praecipe
circulated
06/08/2020
(tentative)
3. High Court
ASDB-LD-VC
No.102 of 2020
along with
WP/891/2018
Parvez N.
Lokhandwalla
Vs. State of
Maharashtra &
Ors
Amendment
carried out
Seeking
circulation
21 The private complaint which is the genesis of the present proceedings was instituted
in January 2014. The gravamen of the allegation is that the appellant has forged
and fabricated the Power of Attorney of 19 December 2011 of his brother Shalin. Mr.
Jha submits that, as a matter of fact, the Power of Attorney has not been used at
any point; his brother was present in India at the time when conveyance was
entered into; and that his brother has never raised any objection. However, we are
not inclined to go into these factual aspects at the present stage. It would suffice to
note that the co-accused was granted bail by the Sessions Judge Thane on 16 April
17
2018. We are called upon to decide only whether the appellant should be
permitted to travel to the US for eight weeks. In evaluating this issue, we must have
regard to the nature of the allegations, the conduct of the appellant and above all,
the need to ensure that he does not pose a risk of evading the prosecution. The
details which have been furnished to the Court by the appellant, indicate that he
has regularly travelled between the US and India on as many as sixteen occasions
between 2015 and 2020. He has maintained a close contact with India. The view of
the High Court that he has no contact with India is contrary to the material on
record. The lodging of an FIR should not in the facts of the present case be a bar on
the travel of the appellant to the US for eight weeks to attend to the business of
revalidating his Green Card. The conditions which a court imposes for the grant of
bail – in this case temporary bail – have to balance the public interest in the
enforcement of criminal justice with the rights of the accused. The human right to
dignity and the protection of constitutional safeguards should not become illusory
by the imposition of conditions which are disproportionate to the need to secure the
presence of the accused, the proper course of investigation and eventually to
ensure a fair trial. The conditions which are imposed by the court must bear a
proportional relationship to the purpose of imposing the conditions. The nature of
the risk which is posed by the grant of permission as sought in this case must be
carefully evaluated in each case.
22 Mr. Sachin Patil submitted that the appellant was granted temporary bail for a
period of eight weeks by the High Court, by its order dated 19 May 2020, and the
appellant has neither furnished surety nor he has surrendered after the expiry of the
period of eight weeks.
18
23 As far as the furnishing of sureties is concerned, Mr. Jha stated, on instructions, that
the directions of the High Court have been complied with. In regard to the
surrender of the appellant, the Court has been apprised of the fact that as a result
of the lock down occasioned by the outbreak of Covid-19, the High Court on the
judicial side passed successive orders13 on 26 March 2020, 15 April 2020 and 15 June
2020 extending its interim orders. In the meantime, to establish his bona fides, the
appellant states that he had moved the High Court in successive praecipes for early
hearing, while instituting an IA for modification of the conditions imposed on 19 May
2020 and, eventually, it was on the direction of this Court that the High Court passed
the impugned order.
24 Having regard to the genesis of the dispute as well as the issue as to whether the
appellant is likely to flee from justice if he were to be permitted to travel to the US,
we find, on the basis of the previous record of the appellant, that there is no reason
or justification to deny him the permission which has been sought to travel to the US
for eight weeks. The appellant is an Indian citizen and holds an Indian passport.
While it is true that an FIR has been lodged against the appellant, that, in our view,
should not in itself prevent him from travelling to the US, where he is a resident since
1985, particularly when it has been drawn to the attention of the High Court and this
Court that serious consequences would ensue in terms of the invalidation of the
Green Card if the appellant were not permitted to travel. The record indicates the
large amount of litigation between the family of the appellant and the complainant.
Notwithstanding or perhaps because of this, the appellant has frequently travelled
between the US and India even after the filing of the complaint and the FIR. We
accordingly are of the view that the application for modification was incorrectly
rejected by the High Court and the appellant ought to have been allowed to travel
13 Writ Petition Urgent 2 of 2020
19
to the US for a period of eight weeks. We accordingly permit the appellant to do so,
subject to his furnishing an undertaking to this Court before the date of travel that he
will return to India after the expiry of a period of eight weeks and that he shall be
available on all dates of hearing before the court of criminal jurisdiction, unless
specifically exempted from personal appearance. The undertaking shall be filed in
this court before the appellant undertakes travel. On the return of the appellant
after eight weeks and if it becomes necessary for him to travel to the US, the
appellant shall apply to the concerned court for permission to travel and any such
application shall be considered on its own merits by the competent court. The
appellant shall travel only upon the grant of permission and subject to the terms
imposed. The passport of the appellant shall be handed over to the appellant to
facilitate his travel, subject to the condition that he shall deposit it with the
investigating officer immediately on his return.
25 Accordingly, the order of the High Court dated 23 July 2020 shall stand set aside and
the appeal shall stand disposed of in terms of the above directions.
…………...…...….......………………........J.
[Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
[Indira Banerjee]
New Delhi;
October 01, 2020
-S-
