Parvez Noordin Lokhandwalla vs State Of Maharashtra & Anr

“Sr.

No.",Arrival Date,Departure Date,,

1.,10-3-2015,Mumbai,Mumbai,

2.,,19-3-2015,Mumbai,

3.,21-4-2015,,Mumbai,

4.,,22-4-2015,Mumbai,

5.,7-5-2015,,Mumbai,

6.,,10-5-2015,New Delhi,

7.,21-8-2015,,Mumbai,

8.,,24-8-2015,Mumbai,

9.,3-2-2016,,New Delhi,

10.,,11-2-2016,New Delhi,

11.,14-2-2016,,New Delhi,

12.,,24-2-2016,New Delhi,

13.,24-6-2016,,Mumbai,

14.,,28-7-2016,Mumbai,

15.,,10-2-2017,New Delhi,

16.,4-5-2017,,Mumbai,

17.,,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,

30.,,14-12-2018,Mumbai,

31.,4-4-2019,,Mumbai,

32.,,22-5-2019,Mumbai,

33.,10-1-2020,,Mumbai,

10 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.",,,,

11 Mr. Subhash Jha, learned counsel appearing on behalf of the appellant submits that:",,,,

(i) The appellant is a resident of the US since 1985; holds a Green Card since 2010 and has not violated any 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 Rs",,,,

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 impose conditions which ensure the presence of,,,,

the accused to face trial, the conditions must balance the liberty of the accused and not result in the arbitrary deprivation of the right to livelihood; and",,,,

(viii) The order of the JMFC dated 10 April 2014 has been passed as a matter of routine course without application of mind and has been misused by,,,,

the police machinery to harass and arrest the appellant at the behest of an adversary.,,,,

12 Mr Jha further submitted that the appellant 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. Mr. Jha has stated that in pursuance of the notice issued by this court, the complainant has been",,,,

served.,,,,

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

issued by this Court on 29 July 2020, submitted that the conduct of the appellant has been improper. Mr. Patil stated that, 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. Mr. Patil submitted that since the",,,,

appellant is facing a criminal trial, the Court may expedite the course of the trial, but not permit him to leave for the US at this stage; there being no",,,,

guarantee of his return.,,,,

14 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. 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.,,,,

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 beyond the ends of the provision. The",,,,

phrase 'interest of justice' as used under the Sub-clause (c) of Section 437(3) means ""good administration of justice"" or ""advancing the trial process""",,,,

and inclusion of broader meaning should be shunned because of purposive interpretation.,,,,

… from the perusal of the impugned order it is clear that the court exceeded its jurisdiction in imposing such arbitrary conditions. Some of the,,,,

conditions imposed are highly onerous and are absurd. Such onerous anticipatory bail conditions are alien and cannot be sustained in the eyes of law.,,,,

The conditions imposed appear to have no nexus with the good administration of justice or advancing the trial process, rather it is an over-zealous",,,,

exercise in utter disregard to the very purpose of the criminal justice system. In view of the above, the impugned order passed by the High Court is set",,,,

aside and the interim protection granted to the Petitioner by this Court… is made absolute.â€​,,,,

16 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.â€​",,,,

17 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:,,,,

“11. While exercising power Under Section 438 of the Code, the Court is duty bound to strike a balance between the individual's right to personal",,,,

freedom and the right of investigation of the police. For the same, while granting relief under Section 438(1), appropriate conditions can be imposed",,,,

Under Section 438(2) so as to ensure an uninterrupted investigation. The object of putting such conditions should be to avoid the possibility of the,,,,

Sr.No.,Court & Case,Parties,Disposal Date,

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",8-10-2010,

3.,"1st C J Magistrate,

Thane

CR.MA/300998/2013","Firdaus Rajabali

Merchant Vs. Parvez

Noor Lokhandwala",3-1-2014,

4.,"4th Joint Civil Judge Sr.

Division, Thane

RCS/201541/2001","Firoz Pirbhai

Lokhandwala Vs

Nooruddin Pirbhai

Lokhandwala",16-9-2016,

5.,"Add. Dist. Judge,

Thane

Civil MA/286/2019","Mehraj Rajabali

Merchant Vs.

Parvez Noor

Lokhandwala

Farida Noor

Lokhandwala

Faizmin Amin

Hussain

Dinaz Akbar

Shalin Noor

Lokhandwala

Arun Fathepuria

Firadaus Rajabali

Merchant

Municipal Comr.

of Thane",25-1-2020,

Sr.No.,Court & Case,Parties,Disposal Date,

1.,"4th Civil Judge S D,

Thane

RCS/200143/2011","Parvez Noor.

Lokhandwala Vs

Firdaus Rajabali

Merchant",7-1-2013,

2.,"Dist & Session Court,

Thane Civil

MA/100012/2008","Shalin Noor.

Lokhandwala Vs.

Hindustan Petroleum",11-8-2015,

3.,"2nd Joint Civil Judge

SD, Thane

RCS/201901/2012","Farida Noor.

Lokhandwala Vs.

Farida Firoz

Lokhandwala",22-1-2019,

4.,"4th Joint Civil Judge

SD, Thane Sp.

Case/200905/2012","Farida Noor.

Lokhandwala Vs.

Farida Firoz

Lokhandwala",13-9-2019,

4.,"5th Court Joint Civil

Judge Sr.

Div., Thane Civil

MA/200687/2015","Mehraj Rajabali

Merchant Vs.

Parvez Noor.

Lokhandwala

Farida Noor.

Lokhandwala

Faizmin Amin

Husain

Dinaz Akbar

Shalin Noor.

Lokhandwala

Arun

Fatehpuria

Firdaus

Rajabali

Merchants

Thane

Municipal Corp.

Commissioner

Ganesh

Hanuman Autee

Sanjay Salvi

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,17-9-2020

3.,"High Court ASDB-

LD-VC No.102 of

2020 along with

WP/891/2018","Parvez N.

Lokhandwalla

Vs. State of

Maharashtra &

Ors","Amendment

carried out","Seeking

circulation