Bombay High Court
Vishal Kotian vs State Of Maharashtra on 6 October, 2023
Bench: S. V. Kotwal
2023:BHC-AS:29517
Gokhale 1 of 4 6-apl-1183-23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1183 OF 2023
Vishal Kotian ..Applicant.
Versus
State of Maharashtra ..Respondent
__________
Mr. Sandeep R. Karnik a/w. Rohan V. Bhosle for Applicant.
Mr. S. H. Yadav, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 6 OCTOBER 2023
PC :
1. Leave to amend. Amendment to be carried out forthwith.
2. The Applicant is aggrieved by the condition imposed on
the applicant by the Metropolitan Magistrate, 13 th Court, Dadar,
Mumbai, in his order dated 11.04.2023 passed in Misc. Application
No.446-Misc/2023. The said application was for issuing no
objection for renewal of the passport for 10 years. His passport
was to expire on 06.08.2023.
3. The applicant is an accused in C.R.No.7 of 2018
registered at R.A.K. Marg police station, under sections 279, 337
and 338 of the I.P.C. The applicant was already released on bail in
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the year 2018 itself. By the impugned order, the learned Magistrate
issued no objection for renewal of the passport for 10 years and
directed the Passport Authority to renew the passport for 10 years
from the date of expiry of the passport as per rules. The applicant
is aggrieved by the 3rd condition which restricts the applicant from
leaving India without prior permission of the Court.
4. Heard Shri. Sandeep Karnik, learned counsel for the
Applicant and Shri. Yadav, learned APP for the State.
5. Learned counsel for the applicant submitted that, all
these offences are bailable and neither the Court nor the police
officers can impose any condition while releasing the applicant on
bail. Learned counsel relied on the Judgment of this Court in the
case of Sultan Kamruddin Dharani Versus Union of India; Deputy
Director, DRI, Mumbai and the State of Maharashtra 1. He
submitted that, since the offences are bailable, such condition
cannot be imposed.
6. Learned APP did not seriously object deleting that
particular condition.
1 2008 SCC OnLine Bom 1347
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7. I have considered these submissions. As rightly
submitted by learned counsel for the Applicant, the aforesaid
Judgment is squarely applicable to the facts of the present case. In
the case of Sultan Dharani (supra) also the objection was for
imposing the condition of depositing the passport and not leaving
India without prior permission of the Court; in case of bailable
offences. The relevant ratio is in paragraph-19 which reads thus:-
"19. Thus, the position of the law is that a person who
is alleged to have committed a bailable offence has an
unfettered and absolute right to be enlarged on bail
and the Court or the Police Officer concerned, as the
case may be, has no discretion to grant or refuse bail.
Subject to first proviso to sub-section (1) of section
436 of the Code of 1973, the Court may modulate the
condition of bail as regards the bail amount and the
number of sureties. However, the Court cannot impose
a condition which is not a term as to the bail. The
condition of requiring a person accused of a bailable
offence to surrender his passport to the Court is not a
term as to bail. If in such a case a condition is imposed
that bail is granted subject to condition of deposit of
passport, such a condition will defeat the absolute
right of the accused under section 436(1) of the said
Code to be set at liberty. In the circumstances, while
enlarging the Petitioner on bail in a bailable offence,
the learned Magistrate has no jurisdiction to direct
deposit of the passport. The Magistrate cannot impose
a condition while granting bail in a bailable offence of
not leaving India without the permission of the Court.
Whenever the Petitioner is enlarged on bail, he is
bound to attend the concerned Court on the date fixed
or whenever he is called upon to do so. This obligation
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is created by the bail bond. If he desires to remain
absent, he will have to seek an exemption from the
Court. In a given case if there is an apprehension that
the accused is likely to abscond, steps can also to be
taken under the appropriate provisions of law. Steps
can be also taken for impounding the passport.
8. Considering that the said ratio is squarely applicable to
the present facts of the case, the 3rd condition imposed by the
Metropolitan Magistrate in the order dated 11.04.2023 is
untenable and has to be set aside.
9. Hence, the following order:
ORDER
i) The order dated 11.04.2023 passed by the
Metropolitan Magistrate, 13th Court, Dadar,
Mumbai, in Misc. Application No.446-Misc/2023,
is modified and the 3rd condition imposing
restriction on the applicant leaving India without
prior permission of the Court, is set aside.
ii) Rest of the order passed by the Metropolitan
Magistrate is maintained as it is.
iii) With this observation, the Application is disposed
of.
(SARANG V. KOTWAL, J.)
