Bail conditions should be a balance of justice and right – Supreme Court

In the case of Parvez Noordin Lokhandwalla Vs State of Maharashtra [Criminal Appeal No. 648 of 2020] Supreme Court held that the conditions which a court imposes for the grant of bail have to balance the public interest in the enforcement of criminal justice with the rights of the accused.

A private complaint 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 by forging the signature of his brother, Shalin Lokhandawalla. 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. However, the interim order protecting the appellant was cancelled because the counsel representing the appellant withdrew the application on his behalf.

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 last five years, the appellant visited India on sixteen occasions. The appellant arrived in India in 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.

The High Court declined to permit the appellant to travel to the US for a period of eight weeks. 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. The appeal raised an interesting issue 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.

The Appellant submitted that he 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. The respondent-state submitted that the conduct of the appellant has been improper as 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 not, surrendered after the period was over.

Court referred the case of Dataram Singh v State of Uttar Pradesh [(2018) 3 SCC 22] where it was held that, “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.”

Court held 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 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. 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.”

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