Right Of Accused Should Not Become Illusory By Imposition Of Disproportionate Bail Conditions: SC

It is good to see that the Apex Court as recently as on October 1, 2020 in a thought provoking judgment titled Parvez Noordin Lokhandwalla vs. State of Maharashtra in Criminal Appeal No. 648 of 2020 manifested its genuine, grave and generous concerns for accused also who is usually condemned very soon even before the charges are actually proved against him/her! It laid down in no uncertain terms that the rights of accused should not become illusory by imposition of disproportionate bail conditions. In other words, all the courts must always see to it that disproportionate bail conditions are not imposed on the accused in any given case.

To start with, the ball is set rolling in para 2 of this notable judgment authored by Justice Dr Dhananjaya Y Chandrachud for himself and Justice Indira Banerjee after granting leave in para 1 by first and foremost observing about the facts that, “This appeal arises from a judgment and order of a Single Judge of the High Court of Judicature at Bombay (“High Court”) 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 abroad and its curtailment under a judicial order as an incident to regulate conditions governing the grant of bail.”

While dwelling on the genesis, it is then elaborated upon in para 3 that, “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 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.””

To be sure, it is then revealed in para 4 that, “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.”

While going into the details of the case, it is then laid bare in para 5 that, “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 of 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 cancelled because the counsel representing the appellant withdrew the application on his behalf.”

Briefly stated, para 6 while mentioning the details of the appellant’s travel history also unravels that, “The appellant is an Indian citizen and 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.”

To put things in perspective, the key point of what  is then stated in para 7 is that, “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.” It is also revealed that the High Court, by its order dated 19 May 2020, granted temporary bail to the appellant, subject to certain conditions which due to paucity of space are not being mentioned here.

Moving on, the key point of para 9 is that, “The High Court by its order dated 26th 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 the Court [SLP (Crl) No. 3034 of 2020].”

Furthermore, what is then unfolded in para 10 is this: “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.”

More significantly, it is then enunciated in para 14 that, “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 ground 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.”

While citing the relevant case law, it is then pointed in para 16 that, “In Dataram Singh v. State of Uttar Pradesh (2018) 3 SCC 22, 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.””

On a similar vein, the key point mentioned in para 17 is that, “In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570, 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 imposing conditions on the grant of bail.”

Again on similar lines, it is then mentioned in para 18 that, “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 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 permission before travelling abroad could have been regulated, not deleted altogether.”

More broadly, while citing several relevant case laws, it is then envisaged in para 19 that, “This Court has passed multiple orders previously allowing an accused enlarged on bail to travel abroad. In Ganpati Ramnath v State of Bihar (Crimp Nos. 6304 & 6305/2017 in Criminal Appeal Nos. 1187/2004, order dated 4 May 2017), 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 Kerala (Criminal Appeal Nos. 547/2012, order dated 2 March 2020), 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 Bengal (Special Leave to Appeal Crl. Nos. 4643/2015, order dated 29 May 2015), 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 AP (Special Leave to Appeal (Crl) No(s).9664/2013, order dated 26 February 2014), 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.”

Most significantly, para 21 which is the cornerstone of this notable judgment especially the last four sentences are very important goes on to state that, “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 of the present stage. It would suffice to note that the co-accused was granted bail by the Sessions Judge Thane on 16 April 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.”

Quite remarkably, the Bench then minces no words to hold in para 24 that, “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 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 to the US for a period of six 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 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.”

Before winding up, it is then held in the final para 25 that, “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.”

No doubt, it is a very brilliant, bold and blunt judgment. It accords a high priority to protecting the legal rights of the accused. It validates the time tested dictum in legal jargon that “Innocent until proven guilty”. Very rightly so! There can be no denying or disputing it! The Apex Court in this leading case has also given able, adequate and appropriate reasons for justifying the same and they are certainly most convincing too!

Sanjeev Sirohi

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