2020 (10) TMI 1258 - SC - Indian Laws

Permission to travel abroad - 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 - allegation is that the appellant has not complied with the conditions on which he was granted interim bail - offence of fabrication of power of attorney - forging the signature of his brother - whether the appellant should be permitted to travel to the US for eight weeks? - HELD THAT - 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. 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. The record indicates the large amount of litigation between the family of the appellant and the complainant. 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 - Application allowed.

Summary

Issues Involved:
1. Fundamental right to travel abroad and its curtailment under judicial orders.
2. Conditions imposed by courts for the grant of bail.
3. Allegations of forgery and fabrication of a Power of Attorney.
4. Compliance with bail conditions and the risk of evading prosecution.
5. Balancing the rights of the accused with the enforcement of the criminal justice system.

Analysis of the Judgment:

1. Fundamental Right to Travel Abroad and its Curtailment:
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. The appellant, a Green Card holder residing in the US since 1985, sought permission to travel to the US to revalidate his Green Card, a requirement under US Immigration laws. The High Court declined this request, leading to the appeal.

2. Conditions Imposed by Courts for the Grant of Bail:
The High Court had granted temporary bail to the appellant with conditions, including surrendering his passport and not leaving the jurisdiction of Thane Police Commissionerate without prior permission. The appellant's request to relax these conditions to travel to the US was denied. The Supreme Court noted that while courts can impose conditions to ensure the presence of the accused and the proper course of investigation, these conditions must balance the liberty of the accused and not result in arbitrary deprivation of rights.

3. Allegations of Forgery and Fabrication of a Power of Attorney:
The genesis of the case is a private complaint alleging that the appellant fabricated a Power of Attorney by forging his brother's signature. An FIR was registered against the appellant for offenses under various sections of the IPC. The appellant contended that the Power of Attorney was never used, and his brother, who was present during the conveyance, never raised any objection.

4. Compliance with Bail Conditions and the Risk of Evading Prosecution:
The appellant was granted temporary bail but was alleged not to have complied with the conditions, such as furnishing surety and surrendering after the bail period. The appellant argued that due to the Covid-19 lockdown, he could not surrender and had sought early hearings for modification of bail conditions. The Supreme Court considered the appellant's travel history and found no reason to believe he would evade prosecution, noting his regular travel between the US and India.

5. Balancing the Rights of the Accused with the Enforcement of the Criminal Justice System:
The Supreme Court emphasized that the conditions imposed for bail must bear a proportional relationship to the purpose of securing the presence of the accused and ensuring a fair trial. The appellant's frequent travel to India and the serious consequences of not revalidating his Green Card were considered. The court found that the High Court's refusal to allow travel was incorrect and permitted the appellant to travel to the US for eight weeks, subject to an undertaking to return and be available for hearings.

Conclusion:
The Supreme Court set aside the High Court's order, allowing the appellant to travel to the US for eight weeks, subject to conditions ensuring his return and compliance with court proceedings. The court balanced the appellant's right to travel and the need to ensure his presence for trial, highlighting the importance of proportionality in imposing bail conditions.