PARVEZ NOORDIN LOKHANDWALLA versus STATE OF MAHARASHTRA & ANR.

[2020] 11 S.C.R. 117

PARVEZ NOORDIN LOKHANDWALLA

STATE OF MAHARASHTRA & ANR.

(Criminal Appeal No. 648 of 2020)

OCTOBER 01, 2020

[DR. DHANANJAYA Y CHANDRACHUD ANDINDIRA BANERJEE, JJ.]

Code of Criminal Procedure, 1973 – ss.437, 439 – Bail –Nature of conditions imposed – Right to travel abroad – FIR lodgedagainst appellant in 2014 alleging forgery – Appellant eventuallyarrested in 2020 – High Court granted conditional interim bail tothe appellant for eight weeks – However, declined to relax theconditions imposed to permit him to visit the US – Held: Conditionswhich court imposes for the grant of bail have to balance the publicinterest in the enforcement of criminal justice with the rights of theaccused – Conditions imposed must bear proportional relationshipto the purpose of imposing such conditions – Appellant is an Indiancitizen and holds an Indian passport – large amount of litigation ispending between the appellant and the complainant – Appellant hasregularly travelled between the US and India on as many as sixteenoccasions between 2015 and 2020 – High Court’s view that he has nocontact with India is contrary to the material on record – FIR lodgedagainst him should not in itself prevent him from travelling to the US,where he is resident since 1985, particularly when seriousconsequences would ensue in terms of the invalidation of the GreenCard if he were not permitted to travel – Appellant permitted to travelto the US for eight weeks subject to furnishing undertaking asdirected – Penal Code, 1860 – ss.420, 467, 468, 469, 470, 471 and474.

Disposing of the appeal, the Court

HELD: 1.1 The language of Section 437(3) of the CrPCwhich uses the expression “any condition… otherwise in theinterest of justice” has been construed in several decisions ofthis court. Though the competent court is empowered to exerciseits discretion to impose “any condition” for the grant of bail underSections 437 (3) and 439 (1) (a) of the CrPC, the discretion of thecourt has to be guided by the need to facilitate the administration

Aof justice, secure the presence of the accused and ensure thatthe liberty of the accused is not misused to impede theinvestigation, overawe the witnesses or obstruct the course ofjustice. [Para 14][127-C-D]

1.2 The private complaint which is the genesis of the presentBproceedings was instituted in January 2014. The gravamen of theallegation is that the appellant has forged and fabricated the Powerof Attorney of 19 December 2011 of his brother. The co-accusedwas granted bail by the Sessions Judge Thane on 16 April 2018.This Court is called upon to decide only whether the appellantshould be permitted to travel to the US for eight weeks. In evaluatingCthis issue, the Court must have regard to the nature of the allegations,the conduct of the appellant and above all, the need to ensure thathe does not pose risk of evading the prosecution. The appellanthas regularly travelled between the US and India on as many assixteen occasions between 2015 and 2020. He has maintained closeDcontact with India. The view of the High Court that he has no contactwith India is contrary to the material on record. The conditions whicha court imposes for the grant of bail – in this case temporary bail –have to balance the public interest in the enforcement of criminaljustice with the rights of the accused. The human right to dignityand the protection of constitutional safeguards should not becomeEillusory by the imposition of conditions which are disproportionateto the need to secure the presence of the accused, the proper courseof investigation and eventually to ensure fair trial. The conditionswhich are imposed by the court must bear proportional relationshipto the purpose of imposing the conditions. The nature of the riskFwhich is posed by the grant of permission as sought in this casemust be carefully evaluated in each case. As far as the furnishing ofsureties is concerned, it is stated, on instructions, that the directionsof the High Court have been complied with. In regard to thesurrender of the appellant, the Court has been apprised of the factthat as result of the lock down occasioned by the outbreak of Covid-G19, the High Court on the judicial side passed successive orders on26 March 2020, 15 April 2020 and 15 June 2020 extending its interimorders. In the meantime, to establish his bona fides, the appellantstates that he had moved the High Court in successive praecipesfor early hearing, while instituting an IA for modification of theHconditions imposed on 19 May 2020 and, eventually, it was on the

direction of this Court that the High Court passed the impugnedorder. [Paras 21, 23][133-F-H; 134-A-G]

1.3 There is no reason or justification to deny him thepermission which has been sought to travel to the US for eight weeks.The appellant is an Indian citizen and holds an Indian passport. Whileit is true that an FIR has been lodged against the appellant, thatshould not in itself prevent him from travelling to the US, where heis resident since 1985, particularly when it has been drawn to theattention of the High Court and this Court that serious consequenceswould ensue in terms of the invalidation of the Green Card if theappellant were not permitted to travel. The record indicates thelarge amount of litigation between the family of the appellant and thecomplainant. Notwithstanding or perhaps because of this, theappellant has frequently travelled between the US and India evenafter the filing of the complaint and the FIR. The application formodification was incorrectly rejected by the High Court and theappellant ought to have been allowed to travel to the US for periodof eight weeks. The appellant is permitted to do so, subject to hisfurnishing an undertaking to this Court before the date of travel thathe will return to India after the expiry of period of eight weeks andthat he shall be available on all dates of hearing before the court ofcriminal jurisdiction, unless specifically exempted from personalappearance. The undertaking shall be filed in this court before theappellant undertakes travel. Further directions issued. [Para24][135-A-D]

Kunal Kumar Tiwari v. The State of Bihar (2018) 16 SCC74; Dataram Singh v. State of Uttar Pradesh (2018) 3SCC 22 : [2018] 1 SCR 882; Sumit Mehta v. State (NCTof Delhi) (2013) 15 SCC 570 : [2013] 10 SCR 125;Barun Chandra Thakur v. Ryan Augustine Pinto Decisionof Supreme Court dated 21.10.2019 in Criminal AppealNo. 1618 of 2019; Ganpati Ramnath v State of BiharDecision of Supreme Court dated 04.05.2017 in CriminalAppeal Nos. 1187 of 2004; K. Mohammed v The State ofKerala Decision of Supreme Court dated 02.03.2020 inCriminal Appeal Nos. 547 of 2012; Tarun Trikha v Stateof West Bengal Decision of Supreme Court dated29.05.2015 in Special Leave to Appeal Crl. Nos. 4643 of

120SUPREME COURT REPORTS

[2020] 11 S.C.R.

A2015; Pitam Pradhan v State of P Decision of SupremeCourt dated 26.02.2014 in Special Leave to Appeal (Crl)No(s). 9664 of 2013 – relied on.

Subhash Jha, Manoj K. Mishra, Sachin Patil, Rahul Chitnis, GeoJoseph, Advs. for the appearing parties.D

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

E2. This appeal arises from judgment and order of Single Judgeof the High Court of Judicature at Bombay[1] dated 23 July 2020. TheHigh Court, by its order which is in appeal, declined to modify its earlierorder dated 19 May 2020 so as to permit the appellant to travel to the USfor period of eight weeks from 25 July 2020 to 6 September 2020. Theappellant sought the leave of the High Court to do so since as GreenFCard holder, it was mandatory for him to return to the US within stipulatedperiod of his departure from that country, failing which the conditions forrevalidation of the Green Card would not be fulfilled. The High Courtdeclined to relax the conditions imposed by it for the grant of interim bailon the ground that an FIR has been registered against the appellant.GThough the period during which the appellant sought to travel abroad haslapsed, the cause survives. The appeal raises interesting issues aboutthe interface between the fundamental right to travel abroad and its

curtailment under judicial order as an incident to regulate conditionsgoverning the grant of bail.

3. The genesis of the present case arises from private complaintwhich was filed in January 2014 by Mehraj Rajabali Merchant in thecourt of the JMFC Thane alleging that the appellant has fabricated aPower of Attorney dated 19 December 2011 by forging the signature ofhis brother, Shalin Lokhandawalla. On 10 April 2014, the JMFC passedan order, by which he directed an investigation under Section 156(3) ofthe Code of Criminal Procedure 1973[2] in terms of the following directions:

“1. The Kapurbavdi police station is directed to register the crimeand investigate into the matter.

2.Further it is hereby directed to submit the report before thecourt for taking action, if any, u/s.340 of Cr.P.C.”

4. First Information Report was registered against the appellanton 22 April 2014 in which the appellant is alleged to be involved in offencespunishable under Sections 420, 467, 468, 469, 470, 471 and 474 of theIndian Penal Code 1860[3] read with the provisions of Section 34.

5. The appellant and the co-accused, Arun Fatehpuria, hadpreferred an application for grant of anticipatory bail before the SessionsCourt Thane, which granted interim protection from arrest to both theaccused on 17 February 2018. On 16 April 2018, the Sessions Court atThane confirmed the interim order and granted anticipatory bail to theco-accused, Arun Fatehpuria, primarily on the basis that the allegationsin the complaint depend largely on documentary material, renderingcustodial interrogation unnecessary. However, the interim order protectingthe appellant was cancelled because the counsel representing the appellantwithdrew the application on his behalf.

6. The appellant is an Indian citizen and holds an Indian passport.He holds Green Card, enabling him to reside in the US. He has residedin the US since 1985. However, between 10 March 2015 and 10 January2020, the appellant visited India on sixteen occasions, details of whichhave been filed on an affidavit dated 7 August 2020 in these proceedings.A tabulated chart (Annexure P-3 to the affidavit) contains details of histravel history, and is extracted below:

2 “CrPC”3 “IPC”

ANo.Departure Date10/3/2015MumbaiMum bai19/03/2015Mum bai21/4/2015Mum baiB22/4/2015Mum bai7/5/2015Mum bai10/5/201521/8/2015Mum baiC24/8/2015Mum bai3/2/201611/2/2016D14/2/201624/2/201624/6/2016Mum bai28/7/2016Mum baiE10/2/20174/5/2017Mum bai10/7/2017Mum bai15/7/2017Mum baiF24/7/2017Mum bai9/8/2017Mum bai19/10/2017Mum baiG3/11/2017Mum bai11/11/2017known)26/2/2018Mum bai1/6/2018Mum baiH

A10/7/2018known)26/9/2018Mumbai26/10/2018MumbaiB22/11/2018Mumbai14/12/2018Mumbai4/4/2019Mumbai22/5/2019MumbaiC10/1/2020Mumbai

7. The appellant arrived in India on 10 January 2020. He was arrestedon 21 February 2020 at the point of departure in Mumbai in pursuance ofa look-out notice which appears to have been issued on the basis of theFIR dated 22 April 2014. An application for bail was filed before theSessions Court in the first week of March 2020 but was rejected on 4May 2020. On 23 April 2020, the appellant filed an application for bailbefore the High Court of Judicature at Bombay. The High Court, by itsorder dated 19 May 2020, granted temporary bail to the appellant, subjectto the following conditions:

“a)The applicant be released on temporary bail for period ofeight weeks in C.R. No.I-156 of 2014 registered withKapurbavadi Police Station, Thane on his furnishing P.R.Bond of Rs.25,000/- with one or more sureties to make upthe amount.

b)Till the procedure for furnishing sureties is completed, theapplicant is permitted to furnish cash bail.

c)Before his actual release from jail, the Applicant is directedto surrender his Passport and/or Green Card issued by theUnited States of America with the Investigating Agency, ifnot earlier seized by it or other Government Authorities.

d)After his release from jail, the applicant is directed not toleave jurisdiction of Thane Police Commissionerate withoutprior permission of the trial Court.

124SUPREME COURT REPORTS

[2020] 11 S.C.R.

Ae)Place the Application for regular bail before the regularCourt after normal functioning of the Court begins.”

8. On 10 June 2020, the appellant filed an IA before the High Courtseeking permission to visit the US for period of eight weeks. The HighCourt was hearing only urgent applications during the course of the lockBdown occasioned by the outbreak of Covid-19. The Registry of the HighCourt informed him on 15 June 2020 that no urgency was found in thepraecipe for urgent listing. The appellant filed fresh praecipes for urgentlisting on 17 June 2020 and 19 June 2020. On 26 June 2020, SingleJudge (Justice S. K. Shinde) expressed his inability to take up the IA forrelaxation of the conditions attached to the grant of interim bail since theCorder 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 theconditions prescribed by the US Immigration and Nationality Act 1952,he has to return for short period for revalidating the Green Card. Amongthem are the following:D

“(C) An alien lawfully admitted for permanent residence in theUnited States shall not be regarded as seeking an admission intothe United States for purposes of the immigration laws unless thealien-

(i)has abandoned or relinquished that status,E

(ii) has been absent from the United States for continuous periodin excess of 180 days,

(iii) has engaged in illegal activity after having departed the UnitedStates,

F(iv) has departed from the United States while under legal processseeking removal of the alien from the United States, includingremoval proceedings under this chapter and extraditionproceedings,

(v) has committed an offense identified in section 1182(a)(2) ofGthis title, unless since such offense the alien has been grantedrelief under section 1182(h) or 1229b(a) of this title, or isattempting to enter at time or place other than as designatedby immigration officers or has not been admitted to the UnitedStates after inspection and authorization by an immigrationofficer.”

9. The High Court, by its order dated 26 June 2020, rejected theapplication for considering his prayer for relaxing the conditions attachingto the grant of interim bail following which the appellant moved this Court[4].By an order dated 13 July 2020, this Court requested the High Court totake up the IA filed by the appellant seeking permission to travel to theUS, at an early date. This Court, in its order dated 13 July 2020, notedthe submission of the learned counsel for the appellant in paragraph 2 ofits order and then issued the following directions:

“2. Mr Subhash Jha, learned counsel appearing on behalf of thepetitioner, submitted that in the event that the petitioner is unableto arrive in the US by 29 July 2020, he will not be in position toretain his Green Card as he is required to return to the US within180 days of his departure and his status will then be that of an alienseeking entry into the US.

3. Since the interim application which has been filed by the petitioneris pending before the High Court, we request the High Court totake it up at an early date having regard to the timeline which hasbeen set out in the submissions which have been recorded above.We clarify that since the interim application is still pending beforethe High Court, we have not expressed any view on the merits ofthe matter. The observations contained in the order declining toentertain the praecipe shall not come in the way of the disposal ofthe interim application. The Special Leave Petition is accordinglydisposed of.

4. The Registry of the Bombay High Court may obtain, if required,administrative directions of the Hon’ble Chief Justice for theassignment of the interim application.”

10. In pursuance of the order of this Court, the High Court heardthe IA and has declined to grant permission to the appellant to visit theUS for period of eight weeks, by its order dated 23 July 2020.

11. Mr. Subhash Jha, learned counsel appearing on behalf of theappellant submits that:

(i)The appellant is resident of the US since 1985; holds aGreen Card since 2010 and has not violated any provisionof law in the US;

A(ii)The appellant and the members of his family have beeninvolved in long drawn out litigation against the complainant,both of civil and criminal nature;

(iii)In the private complaint that was instituted by thecomplainant in January 2014, the co-accused was grantedBanticipatory bail by the Sessions Judge, Thane on the groundthat the complaint essentially turns upon documents;

(iv)Between 2015 and 2020, the appellant has visited India onas many as sixteen occasions;

(v)The family of the appellant, which includes him, his brotherCShalin and two sisters, jointly owns properties at Thane andPanvel worth more than Rs 100 crores and the appellant isthe only member of the family who is looking after thelitigation;

(vi)Far from being fugitive from justice, the appellant hasDconsistently travelled to India and the mere filing of the privatecomplaint and the registration of an FIR should not precludehim from travelling to the US, failing which he would incurserious consequences of the invalidation of his Green Card;

(vii)While the court which grants bail under Section 439 of theECode of Criminal Procedure 1973 can impose conditionswhich ensure the presence of the accused to face trial, theconditions must balance the liberty of the accused and notresult in the arbitrary deprivation of the right to livelihood;and

F(viii)The order of the JMFC dated 10 April 2014 has been passedas matter of routine course without application of mindand has been misused by the police machinery to harassand arrest the appellant at the behest of an adversary.

12. Mr Jha further submitted that the appellant would undertakeGto come to India on every hearing of the criminal cases before theconcerned 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, thecomplainant has been served.

13. On the other hand, Mr. Sachin Patil, learned counsel appearingHon behalf of the State of Maharashtra, who appeared in pursuance of

the notice issued by this Court on 29 July 2020, submitted that the conductof the appellant has been improper. Mr. Patil stated that, on the grant ofanticipatory bail by the Sessions Court in 2018, the appellant left for theUS, without seeking permission, though as matter of fact, he returnedsubsequently to India on several occasions until 2020, when he wasarrested. It was urged that the appellant has not complied with the conditionson which he was granted interim bail for eight weeks and he ought tohave, but has not, surrendered after the period was over. Mr. Patilsubmitted that since the appellant is facing criminal trial, the Courtmay expedite the course of the trial, but not permit him to leave for theUS at this stage; there being no guarantee of his return.

14. The language of Section 437(3) of the CrPC which uses theexpression “any condition… otherwise in the interest of justice” has beenconstrued in several decisions of this court. Though the competent courtis empowered to exercise its discretion to impose “any condition” for thegrant of bail under Sections 437 (3) and 439 (1) (a) of the CrPC, thediscretion of the court has to be guided by the need to facilitate theadministration of justice, secure the presence of the accused and ensurethat the liberty of the accused is not misused to impede the investigation,overawe the witnesses or obstruct the course of justice. Severaldecisions of this Court have dwelt on the nature of the conditions whichcan legitimately be imposed both in the context of bail and anticipatory bail.

15. In Kunal Kumar Tiwari v The State of Bihar[5], the appellantwho 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 ofthe Dowry Prohibition Act 1961 was denied anticipatory bail by the HighCourt. However, the High Court directed that if the appellant was willingto treat his wife with dignity and care but she refuses to live with him orboth parties prefer to obtain divorce by mutual consent, the court belowwould release the appellant on provisional bail. The trial court was permittedto confirm the provisional bail after one year and was directed to monitorthe relationship between the parties, who would appear before it everythree months. This Court, while holding that the conditions imposed by theHigh Court on grant of bail were onerous and arbitrary, observed:

“9. …Sub-clause (c) of Section 437(3) allows Courts to imposesuch conditions in the interest of justice. We are aware thatpalpably such wordings are capable of accepting broader meaning.

5 (2018) 16 SCC 74

But such conditions cannot be arbitrary, fanciful or extend beyondthe ends of the provision. The phrase ‘interest of justice’ as usedunder the Sub-clause (c) of Section 437(3) means “goodadministration of justice” or “advancing the trial process” andinclusion of broader meaning should be shunned because ofpurposive interpretation.

10. … from the perusal of the impugned order it is clear that thecourt exceeded its jurisdiction in imposing such arbitraryconditions. Some of the conditions imposed are highly onerousand are absurd. Such onerous anticipatory bail conditions are alienand cannot be sustained in the eyes of law. The conditions imposedCappear to have no nexus with the good administration of justice oradvancing the trial process, rather it is an over-zealous exercise inutter disregard to the very purpose of the criminal justice system.In view of the above, the impugned order passed by the HighCourt is set aside and the interim protection granted to the PetitionerDby this Court… is made absolute.”

16. In Dataram Singh v State of Uttar Pradesh[6], this Courtobserved that:

“7. ….The grant or refusal of bail is entirely within the discretionof the judge hearing the matter and though that discretion isEunfettered, it must be exercised judiciously and in humanemanner and compassionately. Also, conditions for the grant of bailought not to be so strict as to be incapable of compliance, therebymaking the grant of bail illusory.”

17. In Sumit Mehta v. State (NCT of Delhi)[7], in the context ofFconditions under Section 438 (2) of the CrPC, this Court observed that abalance has to be struck between the rights of the accused and theenforcement of the criminal justice system while imposing conditions onthe grant of bail:

“11. While exercising power Under Section 438 of the Code, theGCourt is duty bound to strike balance between the individual’sright to personal freedom and the right of investigation of the police.For the same, while granting relief under Section 438(1), appropriateconditions can be imposed Under Section 438(2) so as to ensure

6 (2018) 3 SCC 22H7 (2013) 15 SCC 570

an uninterrupted investigation. The object of putting such conditionsshould be to avoid the possibility of the person hampering theinvestigation. Thus, any condition, which has no reference to thefairness or propriety of the investigation or trial, cannot becountenanced as permissible under the law. So, the discretion ofthe Court while imposing conditions must be exercised with utmostrestraint.”

This Court also discussed the scope of the discretion of the courtto impose “any condition” on the grant of bail and observed:

“15. The words “any condition” used in the provision should notbe regarded as conferring absolute power on Court of law toimpose any condition that it chooses to impose. Any condition hasto be interpreted as reasonable condition acceptable in the factspermissible in the circumstance and effective in the pragmatic senseand should not defeat the order of grant of bail.”

18. In Barun Chandra Thakur v. Ryan Augustine Pinto[8], thisCourt restored condition mandating that the respondent seek priorpermission from competent court for travel abroad. The condition, whichwas originally imposed by the High Court while granting anticipatory bailwas subsequently deleted by it. This Court made the followingobservations with respect to imposing restrictions on the accused’s rightto travel:

“9. ….There could be no gainsaying to that the right to travelabroad is valuable one and an integral part of the right to personalliberty. Equally, however, the pre-condition of securing priorpermission before travelling abroad is crucial ingredient whichundoubtedly was engrafted as condition for the grant ofanticipatory-bail in this case. ……At best, the condition for seekingpermission before travelling abroad could have been regulated,not deleted altogether.”

19. This Court has passed multiple orders previously allowing anaccused enlarged on bail to travel abroad. In Ganpati Ramnath v Stateof Bihar[9], this Court allowed an accused-applicant to travel abroad formedical treatment, modifying its earlier bail order, noting that the applicant

8 Criminal Appeal No. 1618 of 2019 (Arising out of SLP (Crl.) No. 9873 of 2019), orderdated 21 October 2019.

9 Crlmp. Nos. 6304 & 6305/2017 in Criminal Appeal Nos. 1187/2004, order dated 4May 2017.

Ahad travelled abroad on the ground of medical necessity on six occasionswith the permission of the court and had returned. In K. Mohammed vThe State of Kerala[10], this Court allowed the accused-appellant totravel abroad to meet in the exigencies of family situation. In TarunTrikha v State of West Bengal[11], this Court allowed the accused-petitioner to travel to Indonesia in connection with his employment andBto return once the work was completed. In Pitam Pradhan v State of AP[12], this Court while granting anticipatory bail, permitted the petitioner totravel abroad noting that his job required him to travel abroad at frequentintervals and may lose his employment if he were not permitted to travelabroad.

20. Having heard the learned counsel appearing on behalf of theappellant and the learned counsel for the State of Maharashtra, it isnecessary for the Court to notice at the outset that large amount oflitigation is pending between the appellant and the complainant, MehrajRajabali Merchant. The appellant has furnished details of the litigationDbetween the parties as well as of the criminal prosecutions, in his affidavit

dated 7 August 2020. This has been summarised in tabular statement:

Court & CasePartiesateMs. Lokhandwala DisposedEThane 4[th ]Civil Judge JMFC, 08/10/2010Thane FThane03/01/2014Noor Lokhandwala16/09/2016LokhandwalaG

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.

H12 Special Leave to Appeal (Crl) No(s).9664/2013, order dated 26 February 2014.

II. Cases initiated by Lokhandwallas (Disposed)

Court & CasePartiesD07/01/2013Thane Merchant11/08/2015ECivil 22/01/2019LokhandwalaF13/09/2019Sp.Lokhandwala

III. Cases initiated by Merchants (Active)

132SUPREME COURT REPORTS[2020] 11 S.C.R.AOrder Notice Unready BFile of Stay CDELokhandwala NoticeCivil LokhandwalaEvidenceParvez Nooruddin LokhandwalaFSummonsThaneLokhandwalaSp. GIV. Cases initiated by Lokhandwallas (Active)Court & CasePartiesStageNext dateNo.ArgumentThaneLokhandwala

Civil Firoz ALokhandwalaFarida N. Lokhandwalla UnreadyRajabali Merchant & Ors.BV. Misc CasesCourt & CasePartiesStageNext dateNo.CArgumentLokhandwalla (tentative)3420/2020MaharashtraDArgumentPraecipe Lokhandwalla circulated Maharashtra(tentative)Amendment Seeking ASDB-LD-VC Lokhandwalla carried outEOrs

21. The private complaint which is the genesis of the presentproceedings was instituted in January 2014. The gravamen of theallegation is that the appellant has forged and fabricated the Power ofAttorney of 19 December 2011 of his brother Shalin. Mr. Jha submitsthat, as matter of fact, the Power of Attorney has not been used at anypoint; his brother was present in India at the time when conveyance wasentered 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 SessionsJudge Thane on 16 April 2018. We are called upon to decide only whetherthe appellant should be permitted to travel to the US for eight weeks. Inevaluating 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

Adoes not pose risk of evading the prosecution. The details which havebeen furnished to the Court by the appellant, indicate that he has regularlytravelled between the US and India on as many as sixteen occasionsbetween 2015 and 2020. He has maintained close contact with India.The view of the High Court that he has no contact with India is contraryto the material on record. The lodging of an FIR should not in the facts ofBthe present case be bar on the travel of the appellant to the US foreight weeks to attend to the business of revalidating his Green Card.The conditions which court imposes for the grant of bail – in this casetemporary bail – have to balance the public interest in the enforcementof criminal justice with the rights of the accused. The human right toCdignity and the protection of constitutional safeguards should not becomeillusory by the imposition of conditions which are disproportionate to theneed to secure the presence of the accused, the proper course ofinvestigation and eventually to ensure fair trial. The conditions whichare imposed by the court must bear proportional relationship to thepurpose of imposing the conditions. The nature of the risk which is posedDby the grant of permission as sought in this case must be carefullyevaluated in each case.

22. Mr. Sachin Patil submitted that the appellant was grantedtemporary bail for period of eight weeks by the High Court, by its orderdated 19 May 2020, and the appellant has neither furnished surety nor heEhas surrendered after the expiry of the period of eight weeks.

23. As far as the furnishing of sureties is concerned, Mr. Jhastated, on instructions, that the directions of the High Court have beencomplied with. In regard to the surrender of the appellant, the Court hasbeen apprised of the fact that as result of the lock down occasioned byFthe outbreak of Covid-19, the High Court on the judicial side passedsuccessive orders[13] on 26 March 2020, 15 April 2020 and 15 June 2020extending its interim orders. In the meantime, to establish his bona fides,the appellant states that he had moved the High Court in successivepraecipes for early hearing, while instituting an IA for modification ofGthe conditions imposed on 19 May 2020 and, eventually, it was on thedirection of this Court that the High Court passed the impugned order.

24. Having regard to the genesis of the dispute as well as theissue as to whether the appellant is likely to flee from justice if he were tobe 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 himthe 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 istrue 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 aresident since 1985, particularly when it has been drawn to the attentionof the High Court and this Court that serious consequences would ensuein terms of the invalidation of the Green Card if the appellant were notpermitted to travel. The record indicates the large amount of litigationbetween the family of the appellant and the complainant. Notwithstandingor perhaps because of this, the appellant has frequently travelled betweenthe US and India even after the filing of the complaint and the FIR. Weaccordingly are of the view that the application for modification wasincorrectly rejected by the High Court and the appellant ought to havebeen allowed to travel to the US for period of eight weeks. Weaccordingly permit the appellant to do so, subject to his furnishing anundertaking to this Court before the date of travel that he will return toIndia after the expiry of period of eight weeks and that he shall beavailable on all dates of hearing before the court of criminal jurisdiction,unless specifically exempted from personal appearance. The undertakingshall be filed in this court before the appellant undertakes travel. On thereturn of the appellant after eight weeks and if it becomes necessary forhim to travel to the US, the appellant shall apply to the concerned courtfor permission to travel and any such application shall be considered onits own merits by the competent court. The appellant shall travel onlyupon the grant of permission and subject to the terms imposed. Thepassport of the appellant shall be handed over to the appellant to facilitatehis travel, subject to the condition that he shall deposit it with theinvestigating officer immediately on his return.

25. Accordingly, the order of the High Court dated 23 July 2020shall stand set aside and the appeal shall stand disposed of in terms of theabove directions.

Divya Pandey

Appeal disposed of.