Right to Travel Abroad: Supreme Court Allows Green Card Holder to Visit US in Parvez Noordin Lokhandwalla vs. State of Maharashtra (2020)

Introduction

Date of the Judgment: 01 October 2020
Citation: (2020) INSC 776
Judges: Dr. Dhananjaya Y Chandrachud and Indira Banerjee, JJ.

Can a court impose conditions on bail that effectively prevent an individual from traveling abroad, especially when such travel is necessary to maintain their residency status in another country? The Supreme Court of India addressed this critical question in a case involving an Indian citizen and US Green Card holder, Parvez Noordin Lokhandwalla, who was seeking permission to travel to the United States. This case highlights the delicate balance between the fundamental right to travel and the conditions imposed during the grant of bail.

Case Background

The case originated from a private complaint filed in January 2014 by Mehraj Rajabali Merchant, alleging that Parvez Noordin Lokhandwalla had forged a Power of Attorney by fabricating his brother’s signature. Based on this complaint, the Judicial Magistrate First Class (JMFC) Thane, ordered an investigation under Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC). Consequently, a First Information Report (FIR) was registered on 22 April 2014 against Lokhandwalla for offenses punishable under Sections 420, 467, 468, 469, 470, 471, and 474 of the Indian Penal Code, 1860 (IPC), read with Section 34 of the IPC.

Lokhandwalla, an Indian citizen and a US Green Card holder residing in the US since 1985, had frequently traveled between the US and India. Between 2015 and 2020, he visited India sixteen times. He was arrested on 21 February 2020, at Mumbai airport based on a look-out notice issued in connection with the 2014 FIR. After his bail application was rejected by the Sessions Court, he applied for bail at the High Court of Judicature at Bombay.

Timeline

Course of Proceedings

Initially, the Sessions Court granted interim protection from arrest to Lokhandwalla and the co-accused on 17 February 2018. However, on 16 April 2018, while the co-accused was granted anticipatory bail, Lokhandwalla’s interim protection was canceled when his counsel withdrew the application. After his arrest in February 2020, Lokhandwalla’s bail application was rejected by the Sessions Court on 4 May 2020.

Subsequently, the High Court granted him temporary bail on 19 May 2020, with conditions that included surrendering his passport and not leaving the Thane jurisdiction without prior permission. Lokhandwalla then sought permission from the High Court to travel to the US for eight weeks to maintain his Green Card status. The High Court rejected this application on 26 June 2020 and again on 23 July 2020, leading to the appeal before the Supreme Court.

Legal Framework

The Supreme Court considered the following legal provisions:

• Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC): This section empowers a Magistrate to order an investigation by the police into a cognizable offense.
  
  “Any Magistrate empowered under section 190 may order such an investigation as is mentioned in sub- section (3).”
• Sections 420, 467, 468, 469, 470, 471, and 474 of the Indian Penal Code, 1860 (IPC): These sections pertain to offenses related to cheating, forgery, and using forged documents.
  
  “Section 420: Cheating and dishonestly inducing delivery of property.”
  
  “Section 467: Forgery of valuable security, will, etc.”
  
  “Section 468: Forgery for purpose of cheating.”
  
  “Section 469: Forgery for purpose of harming reputation.”
  
  “Section 470: Forged document or electronic record.”
  
  “Section 471: Using as genuine a forged document or electronic record.”
  
  “Section 474: Having possession of document knowing it to be forged with intent to use it as genuine.”
• Section 34 of the IPC: This section addresses acts done by several persons in furtherance of common intention.
  
  “When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”
• Section 437(3) of the CrPC: This section allows courts to impose conditions while granting bail to ensure the presence of the accused and the smooth administration of justice.
  
  “When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), the Court shall impose the conditions—(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.”
• Section 439(1)(a) of the CrPC: This section deals with the powers of the High Court or Court of Session regarding bail.
  
  “A High Court or Court of Session may direct that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;”

Arguments

Appellant’s Arguments:

• The appellant has been a resident of the US since 1985 and holds a Green Card since 2010, with no violations of US law.
• The appellant and his family are involved in long-standing civil and criminal litigation with the complainant.
• The co-accused in the private complaint was granted anticipatory bail based on the documentary nature of the evidence.
• The appellant has visited India sixteen times between 2015 and 2020, showing no intent to evade the law.
• The appellant’s family owns properties in Thane and Panvel worth over Rs 100 crores, and he is responsible for managing the litigation.
• Denying his travel to the US would result in the invalidation of his Green Card, impacting his livelihood.
• Conditions for bail should balance the liberty of the accused and not arbitrarily deprive them of their right to livelihood.
• The JMFC order was passed routinely without due application of mind and has been misused to harass the appellant.
• The appellant undertook to attend all court hearings and had no intention to evade the legal process.

State of Maharashtra’s Arguments:

• The appellant’s conduct has been improper, as he left for the US after being granted anticipatory bail in 2018 without seeking permission.
• The appellant did not comply with the conditions of his interim bail by not surrendering after the eight-week period.
• Given the ongoing criminal trial, the appellant should not be permitted to leave for the US, as there is no guarantee of his return.

Innovativeness of the argument: The appellant’s argument was innovative in highlighting the practical implications of denying travel, specifically the potential loss of his Green Card, which is tied to his livelihood and residency in the US.

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the High Court was justified in declining to relax the conditions imposed for the grant of interim bail so as to permit the appellant to travel to the US for a period of eight weeks?
2. Whether the conditions imposed for the grant of bail were disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure a fair trial?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court relied on the following authorities:

Cases:

• Kunal Kumar Tiwari v. The State of Bihar, (2018) 16 SCC 74: The Supreme Court held that conditions imposed for bail should not be arbitrary or onerous and must be related to the good administration of justice.
  
  “…Sub -clause (c) of Section 437(3) allows Courts to impose such conditions in the interest of justice…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.”
• Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22: The Supreme Court emphasized that the discretion to grant or refuse bail must be exercised judiciously, humanely, and compassionately, and conditions should not be impossible to comply with.
  
  “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.”
• Sumit Mehta v. State (NCT of Delhi), (2013) 15 SCC 570: The Supreme Court stated that conditions for bail should balance individual freedom and the needs of the criminal justice system, and should not be overly restrictive.
  
  “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…any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law.”
• Barun Chandra Thakur v. Ryan Augustine Pinto, Criminal Appeal No. 1618 of 2019: The Supreme Court restored a condition requiring prior permission for travel abroad, noting that the right to travel is part of personal liberty but can be regulated.
  
  “…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.”
• Ganpati Ramnath v. State of Bihar, Crlmp. Nos. 6304 & 6305/2017: The Supreme Court allowed an accused to travel abroad for medical treatment, modifying an earlier bail order.
• K. Mohammed v. The State of Kerala, Criminal Appeal Nos. 547/2012: The Supreme Court allowed an accused to travel abroad for family reasons.
• Tarun Trikha v. State of West Bengal, Special Leave to Appeal Crl. Nos. 4643/2015: The Supreme Court allowed an accused to travel abroad for employment purposes.
• Pitam Pradhan v. State of A P, Special Leave to Appeal (Crl) No(s).9664/2013: The Supreme Court allowed an accused to travel abroad for employment purposes, noting that his job required frequent travel.

Legal Provisions:

• Section 437(3) of the CrPC: The Court discussed the scope of this provision, which allows for the imposition of conditions on bail, emphasizing that such conditions must be in the interest of justice but should not be arbitrary or overly restrictive.
• Section 439(1)(a) of the CrPC: The Court referred to this section, which provides the High Court and Court of Session the power to grant bail and impose necessary conditions.

Judgment

The Supreme Court allowed the appeal, setting aside the High Court’s order. The Court held that the High Court was incorrect in rejecting the appellant’s application for permission to travel to the US for eight weeks.

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Kunal Kumar Tiwari v. The State of Bihar, (2018) 16 SCC 74*: The Court used this case to emphasize that bail conditions should not be arbitrary or onerous and must be related to the good administration of justice.
• Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22*: The Court relied on this case to highlight that the discretion to grant or refuse bail must be exercised judiciously, humanely, and compassionately, and conditions should not be impossible to comply with.
• Sumit Mehta v. State (NCT of Delhi), (2013) 15 SCC 570*: This case was used to state that conditions for bail should balance individual freedom and the needs of the criminal justice system, and should not be overly restrictive.
• Barun Chandra Thakur v. Ryan Augustine Pinto, Criminal Appeal No. 1618 of 2019*: The Court cited this case to show that the right to travel abroad is part of personal liberty but can be regulated, and prior permission may be required.
• Ganpati Ramnath v. State of Bihar, Crlmp. Nos. 6304 & 6305/2017*: This case was cited as a precedent where the Court allowed travel abroad for medical treatment.
• K. Mohammed v. The State of Kerala, Criminal Appeal Nos. 547/2012*: This case was cited as a precedent where the Court allowed travel abroad for family reasons.
• Tarun Trikha v. State of West Bengal, Special Leave to Appeal Crl. Nos. 4643/2015*: This case was cited as a precedent where the Court allowed travel abroad for employment purposes.
• Pitam Pradhan v. State of A P, Special Leave to Appeal (Crl) No(s).9664/2013*: This case was cited as a precedent where the Court allowed travel abroad for employment purposes.

The Court emphasized that while conditions can be imposed for bail, these should not be disproportionate to the need to secure the presence of the accused. The right to travel is a part of personal liberty and should not be curtailed arbitrarily. The Court noted that the appellant had regularly traveled between the US and India, indicating no intention to evade the legal process.

The Court stated, “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 Court also observed, “The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing the conditions.”

The Court further added, “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.”

The Court allowed the appellant to travel to the US for eight weeks, subject to his undertaking to return to India and be available for all court hearings, unless exempted. The Court also directed that his passport be handed over to him for travel and be deposited with the investigating officer upon his return.

Conclusion

The Supreme Court’s judgment in Parvez Noordin Lokhandwalla vs. State of Maharashtra (2020) is significant in clarifying that while courts can impose conditions on bail, these conditions must be reasonable, proportional, and not unduly restrictive of an individual’s fundamental rights, including the right to travel. The Court emphasized that the right to travel is a part of personal liberty and should not be curtailed arbitrarily. The judgment underscores the importance of balancing the public interest in the administration of justice with the individual’s right to freedom and livelihood.

This case serves as a crucial precedent, especially for individuals who are residents or Green Card holders of other countries, ensuring that their right to travel is not unduly hampered by bail conditions. It reinforces the principle that bail conditions should not be so stringent as to make the grant of bail illusory. The Supreme Court’s approach in this case demonstrates a commitment to upholding both the rule of law and the fundamental rights of individuals.