Code of Criminal Procedure, 1973 – ss.437, 439 – Bail – Nature of conditions imposed – Right to travel abroad – FIR lodged against appellant in 2014 alleging forgery – Appellant eventually arrested in 2020 – High Court granted conditional interim bail to the appellant for eight weeks – However, declined to relax the conditions imposed to permit him to visit the US – Held: 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 – Conditions imposed must bear a proportional relationship to the purpose of imposing such conditions – Appellant is an Indian citizen and holds an Indian passport – A large amount of litigation is pending between the appellant and the complainant – Appellant has regularly travelled between the US and India on as many as sixteen occasions between 2015 and 2020 – High Court’s view that he has no contact with India is contrary to the material on record – FIR lodged against him should not in itself prevent him from travelling to the US, where he is a resident since 1985, particularly when serious consequences would ensue in terms of the invalidation of the Green Card if he were not permitted to travel – Appellant permitted to travel to the US for eight weeks subject to furnishing undertaking as directed – Penal Code, 1860 – ss.420, 467, 468, 469, 470, 471 and
474. Disposing of the appeal, the Court
HELD: 1.1 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. [Para 14][127-C-D]
1.2 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. The co-accused was granted bail by the Sessions Judge Thane on 16 April 2018. This Court is called upon to decide only whether the appellant should be permitted to travel to the US for eight weeks. In evaluating this issue, the Court 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 appellant 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 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. As far as the furnishing of sureties is concerned, it is 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 Covid19, the High Court on the judicial side passed successive orders 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. [Paras 21, 23][133-F-H; 134-A-G]
1.3 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 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. 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 eight weeks. The appellant is permitted 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. Further directions issued. [Para 24][135-A-D]
Kunal Kumar Tiwari v. The State of Bihar (2018) 16 SCC 74; Dataram Singh v. State of Uttar Pradesh (2018) 3 SCC 22 : [2018] 1 SCR 882; Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 : [2013] 10 SCR 125; Barun Chandra Thakur v. Ryan Augustine Pinto Decision of Supreme Court dated 21.10.2019 in Criminal Appeal No. 1618 of 2019; Ganpati Ramnath v State of Bihar Decision of Supreme Court dated 04.05.2017 in Criminal Appeal Nos. 1187 of 2004; K. Mohammed v The State of Kerala Decision of Supreme Court dated 02.03.2020 in Criminal Appeal Nos. 547 of 2012; Tarun Trikha v State of West Bengal Decision of Supreme Court dated
29.05.2015 in Special Leave to Appeal Crl. Nos. 4643 of 2015; Pitam Pradhan v State of A P Decision of Supreme Court dated 26.02.2014 in Special Leave to Appeal (Crl) No(s). 9664 of 2013 – relied on.
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