TMI Blog2020 (10) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1973 CrPC 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 1860 IPC 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-accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10/7/2017 Mumbai 18. 15/7/2017 Mumbai 19. 24/7/2017 Mumbai 20. 9/8/2017 Mumbai 21. 19/10/2017 Mumbai 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility 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, (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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 100 crores and the appellant is the only member of the family who is looking after the litigation; (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 impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be imposed both in the context of bail and anticipatory bail. 15 In Kunal Kumar Tiwari v The State of Bihar (2018) 16 SCC 74, 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 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 bey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Pinto Criminal Appeal No. 1618 of 2019 (Arising out of SLP (Crl.) No. 9873 of 2019), order dated 21 October 2019, 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 tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bali Merchants 8. Thane Municipal Corp. Commissioner 9. Ganesh Hanuman Autee 10. Sanjay Salvi 11. Amarjit Singh Dhri File of Stay 19.8.2020 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 Civil MA/200315/2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 te ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
