Bombay High Court

Kirti Vishwanath Kedia vs Central Bureau Of Investigation (Eob) ... on 22 August, 2025

Author: Milind N. Jadhav

Bench: Milind N. Jadhav

2025:BHC-AS:36086
                                                                         2.IA.3323.24 & IA.3359.24.doc

  Ajay

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION

                            INTERIM APPLICATION NO. 3323 OF 2024
                                             IN
                        ANTICIPATORY BAIL APPLICATION NO. 960 OF 2022

                                            WITH
                            INTERIM APPLICATION NO. 3359 OF 2024
                                             IN
                        ANTICIPATORY BAIL APPLICATION NO. 959 OF 2022

             Kirti Vishwanath Kedia                                         .. Applicant
                    Versus
             Central Bureau of Investigation (EOB) and Anr.                 .. Respondents

                                        ....................
              Dr. Sujay Kantawala a/w. Ms. Sajal Yadav, Mr. Aishwarya
               Kantawala, Jeffry Caleb and Mr. Harsh Ghangurde, Advocates i/by
               Mr. Anukul B. Seth for Applicant.
              Mr. Kuldeep S. Patil a/w. Dhavalsinh V. Patil and Mr. Yogesh A.
               Sukale, Advocates for Respondent No.1 - CBI.
              Mr. Y.Y. Dabake, APP for Respondent - State.
              Dr. Ashwini Takalkar, APP for Respondent No.2 - State.
                                                 ....................
                                                      CORAM           : MILIND N. JADHAV, J.

                                                      DATE            : AUGUST 22, 2025.
             P.C.:

1. Heard Dr. Kantawala, learned Advocate for Applicant; Mr.

Patil, learned Advocate for Respondent No.1 - CBI; Mr. Dabake,

learned APP for Respondent - State and Dr. Takalkar, learned APP for

Respondent No.2 - State.

2. Present Interim Application No.3323 of 2024 is filed by

Applicant who is arraigned as Accused No.9 in charge-sheet filed by

Respondent No.1 - Central Bureau of Investigation (EOB) (for short

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'CBI') in CBI Special Case No.1643 of 2021. Application seeks

modification of order dated 21.12.2022 passed by this Court (Coram:

Bharati Dangre, J.) in Anticipatory Bail Application No.960 of 2022 to

the extent of deletion of condition Nos.(c) and (d) stated in that order

as conditions for bail qua the Applicant before me. It is seen that the

order dated 21.12.2022 was a common order passed in 2 Bail

Applications and 4 Anticipatory Bail Applications moved by Applicants

in the said case.

3. Dr. Kantawala, learned Advocate would submit that

Applicant was not arrested during investigation and his cooperation /

availability for investigation with Respondent No.1 - CBI for purpose

of investigation is not in dispute. He would submit that learned Trial

Court after taking cognizance of order dated 15.02.2022 passed by this

Court in Anticipatory Bail Application No.960 of 2022 issued summons

to Applicant to appear on 04.04.2022 for investigation. He would

submit that Applicant filed exemption Application for personal

appearance on that date through his Advocate which was rejected and

non-bailable warrant was issued against Applicant.

3.1. He would submit that in the meantime Accused Nos.3, 12,

18, 19, 23, 25 and 26 in the Special CBI case were arrested and sent to

judicial custody and their Bail Applications were rejected by order

dated 05.12.2022. In the above circumstances, Applicant was

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constrained to approach this Court for seeking Anticipatory Bail by

filing Anticipatory Bail Application Nos.160 of 2022 and 959 of 2022.

He would submit that those Application were allowed alongwith 2

other Bail Applications and 3 other Anticipatory Bail Applications of

other co-accused persons by common order dated 21.12.2022

appended at Exhibit 'B' - page No.26 of Interim Application No.3323

of 2024.

3.2. He would submit that in that order this Court allowed

Anticipatory Bail Application of Applicant alongwith 3 other

Anticipatory Bail Applications by directing all Applicants to surrender

their passports, if any, before the Investigating Officer within one week

of their release and directed them not to leave the country without

prior permission of the Special CBI Court. These directions are

contained in the operative part nomenclatured as 'Order in

Anticipatory Bail Applications' as can be seen on page No.44 of the

Application. In the present Interim Application, Applicant before me

prays for deletion of the said twin conditions namely condition Nos.(c)

and (d) imposed by Court regarding surrender of passport and seeking

permission of Special CBI Court before leaving the country on the

following grounds:-

(i) According to Applicant, the said twin conditions are

onerous conditions as they fetter the right of Applicant

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to free travel and impose an embargo upon Applicant;

(ii) That order dated 08.04.2022 which was interim order

passed by this Court in Anticipatory Bail Application

No.939 of 2022 did not have the said conditions

curbing the travel freedom of the Applicant;

(iii) That pursuant to passing of order dated 21.12.2022

Applicant has undertaken 12 trips out of the country for

business purposes (3), family purposes (3) and for

medical purposes (6) between 07.03.2023 to

21.07.2024;

(iv) That Applicant has visited Dubai, UAE and the United

Kingdom for business purposes and Singapore for his

medical check-up and follow-up. That Applicant has on

all occasions adhered to the twin conditions and on

every occasion approached the CBI Special Court for

release of passport and sought permission of Court to

travel abroad for his business purposes, family purposes

and his medical check-up / follow up.;

(v) That not even once Applicant has derelicted or given an

opportunity to prosecution and has always complied

with all conditions of travel and returned back

considering that Applicant has substantial business

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interests, property and his family living in Mumbai /

India.

(vi) That according to Applicant the twin conditions are

onerous to in as much as Applicant is required to travel

abroad for his business purposes and most importantly

for his medical check-up/ follow up visits repeatedly at

very short notice and it is extremely cumbersome for

Applicant to approach the Court every time at the 11 th

hour for release of his passport and for seeking

permission to travel abroad since this exercise is time

consuming and on most occasions due to delay it leads

to failure of his business meetings and cancellation of

medical appointments;

(vii) Lastly, Applicant would submit that it is settled position

of law concluded by Supreme Court in a subsequent

judgment dated 16.05.2024 in the case of Tarsem Lal

Vs. Directorate of Enforcement, Jalandhar Zonal Office

in Criminal Appeal No.2608 of 2024 that once the Trial

Court has taken cognizance of the matter and passed

interim order dated 15.02.2022 (in the case of

Applicant herein) seeking appearance of Applicant and

Applicant having complied with the same then

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Applicant would not have been taken into custody. He

would submit that despite this order Applicant was

constrained to file Anticipatory Bail Applications in view

of the learned Special Court sending some of the other

co-accused persons to custody during investigation at

post-cognizance stage. He would therefore submit that

the twin conditions imposed upon Applicant in the

order granting Anticipatory Bail cannot be impose on

Applicant since he had appeared before the learned

Trial Court at post-cognizance stage as a free person

and if that is the case then the Court has no option but

to release such a person by accepting his bonds without

sureties and without imposing any additional

conditions.

3.3. He would submit that imposition of additional conditions

while granting bail by relying on provisions of Sections 437 and 439 of

the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') is bad in law

in the present facts and circumstances. He would submit that in the

peculiar facts and circumstances of the present case, except what has

been contemplated under Section 88 of the Cr.P.C., no other condition

could have been imposed on the Applicant. Hence, he would submit

that the twin conditions namely (c) and (d) in the order dated

21.12.2022 to the extent of the Applicant be quashed and set aside.

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4. PER CONTRA, Mr. Patil, learned Advocate for Respondent

No.1 - CBI would submit that imposition of the twin conditions in the

present case is imperative in view of the apprehension that Applicant

may misuse the liberty granted to him to travel abroad and may not

return back to stand to trial at all.

4.1. He would submit that Applicant is an accused person in CBI

Special Case No.1643 of 2021 arising out of offences registered under

Section 120-B, 420, 468 and 471 of IPC. He would submit that the

charges are serious and its gravity cannot be disregarded considering

that there is loss of huge public money to the tune of Rs.2,200 crores

which is a serious economic offence which affects the economic fabric

of the country at large and therefore imposition of the twin conditions

cannot be called as a fetter on the freedom to travel of Applicant. He

would submit that whenever Applicant has approached the Special

Court, it has granted permission to Applicant to travel abroad.

5. In his usual fairness, Mr. Patil would submit that in so far as

multiple visits undertaken by Applicant abroad are concerned, it is an

admitted fact that he has always complied with the conditions imposed

and always returned back on time. He would fairly submit that it is not

in dispute that Applicant was never arrested when he was interrogated

during the course of investigation or that he has not participated in

investigation. He would submit that reliance of Applicant on the

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decision of Supreme Court cannot be indicative of the proposition that

if the accused is not arrested during the course of investigation he can

never be arrested on filing of the charge-sheet as such a case would

vary on the facts and circumstances of each case. Hence he would

submit that this Court be pleased to pass appropriate orders and in the

event if inclined to grant the Application for modification may

significantly ensure that the prosecution is always in the know-how of

the whereabouts of Applicant as and when he travels abroad.

6. I have heard Dr. Kantawala, learned Advocate appearing for

Applicant and Mr. Patil, learned Advocate for Respondent No.1 - CBI

and with their able assistance perused the record and pleadings of the

case. Submissions made by the learned Advocates have received due

consideration of the Court.

7. At the outset, it is seen that investigation has been completed

and charge-sheet has been filed in the subject Special Case filed by

CBI. It is also borne out from the record that Applicant has duly

participated in investigation as and when called for by prosecution

and never derelicted from participation. Application of Applicant

before Court is for deletion of the twin conditions namely (c) and (d)

in the order granting bail requiring Applicant to deposit his passport

with the Court and seek permission of the Court as and when he has to

travel abroad. The contour of the Application is on the basis of two

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submissions one of which is fact based and second being a legal

submission.

8. According to Applicant, he is required to travel abroad

repeatedly for various purposes. The details of his travel between

March - 2023 and July - 2024 on 12 occasions which have been stated

in Application alongwith all details including the dates and purpose. It

is seen that Applicant has business interests in foreign countries for

which he is required to travel frequently for business meetings as also

recently one of the major reason for his travel abroad is for his medical

check-up and follow-up to Singapore where he has travelled on 6

occasions in the past. Applicant is suffering from a kidney ailment and

is treated abroad in Singapore, details of which have been appended to

the Application and is required to travel at short notice on receiving

the Doctor's appointment. Case of Applicant is that whenever he is

required to travel, the onerous conditions of seeking release of his

passport before travel filing Application for release of passport,

applying for permission to travel abroad to Trial Court, awaiting filing

of reply from prosecution, hearing of Application, awaiting final order

from the CBI Special Court are all such incidents which are time

consuming and most importantly they act as a fetter on his right to

travel abroad either for business purpose or medical purposes or for his

family reasons. Applicant's grievance is that the essence of his business

trips / medical check-up visits is lost because of the delay which occurs

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in the legal system from the point of Applicant making Application for

seeking release of his passport until the Trial Court passes the order

and Applicant receives it in his hand, Applicant's case is that in case of

emergency and exigency when Applicant is required to travel abroad

for the reasons, due to consumption of time either his schedule cannot

be followed or complied with or his appointments get cancelled as

there is very little time available on Applicant's hand to approach the

Court for seeking release of his passport and permission to travel

abroad.

9. That apart, in so far as travelling abroad for his medical

check-up and follow-up visits are concerned, those visits critically

depend upon availability of appointment of doctors who are treating

the Applicant in Singapore for his kidney ailment and when such

appointments are received at short notice undoubtedly it is a

cumbersome on the part of Applicant to immediately undertake the

process of applying for release of passport and seek permission to

travel abroad within a short period of time which at many a times

becomes impossible for Applicant since he has to manage his health

condition simultaneously and seek such appointments based on his

health condition. These submissions of Applicant on the factual aspect,

prima facie appeal to the Court.

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10. That apart it is seen that Applicant has deep roots in the

Society, he has substantial properties and business interests in Mumbai

and India and therefore the twin conditions of requiring Applicant to

surrender his passport after every trip abroad and once again seek its

release and permission to travel abroad is undoubtedly on the face of

record cumbersome and therefore it possibly results in loss of short

term business opportunities, but also acts as a curb and fetter of

meeting deadlines by Applicant and more so regarding his frequent

medical visits for his ailment.

11. From that perspective, I am in complete agreement and in

consonance with submissions advanced by Dr. Kantawala in interfering

with the twin conditions namely (c) and (d) in the Anticipatory Bail

Application. Needless to state that appropriate directions can be passed

requiring Applicant to share all his details of travel with prosecution

and Investigating Officer before he undertakes any such travel.

12. The second reason advanced by Applicant is on account of a

subsequent decision of the Supreme Court in the case of Tarsem Lal

(supra) dated 16.05.2024 which interprets the provisions of Section 88

of Cr.P.C. viz-a-viz Section 205 of Cr.P.C.

13. Both these provisions are reproduced below for reference:-

"88. Power to take bond for appearance.

When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons

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or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial."

"205. Magistrate may dispense with personal attendance of accused.

(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. (2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided."

14. The operative conclusion in the said decision is contained in

paragraph No.23 wherein the Supreme Court has held that an order

accepting bonds under Section 88 of Cr.P.C. does not amount to grant

of bail. It is seen that the object of Section 88 of Cr.P.C. is to ensure

appearance of a person in Court and the only condition contemplated

in Section 88 is for such person to execute a bond with or without

sureties. In the case of Applicant before me due to interim order dated

15.02.2022 he was issued summons to appear on 04.04.2022 and

hence he could not have been taken into custody. However because of

a subsequent development of some co-accused persons having been

taken into custody, the Applicant was constrained to file Anticipatory

Bail Application. It is in this background that Anticipatory Bail

Application filed by Applicant was heard and bail was granted with

conditions imposed in the said order.

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15. Considering the aforesaid background and submissions

advanced by Dr. Kantawala about the application of the ratio of the

Supreme Court order in the case of Tarsem Lal (supra) to the facts of

the present case, it is seen that Applicant was not arrested till the filing

of the charge-sheet as he was directed to appear on summons and he

had appeared. In such a situation it was incumbent upon the learned

Trial Court to direct Applicant to furnish bond as contemplated under

Section 88 of the Cr.P.C..

16. Further it is seen that Applicant had a medical surgery in

Singapore and is required to regularly do his follow-up visits with his

treating Doctor in Singapore. It is seen that he has already undergone

heart bypass surgery on 20.11.2013 by Dr. Lye Ywai Chong in

Singapore. It is also seen that he is suffering from kidney ailment. It is

also seen that Applicant is a businessman and has wide experience and

expertise in the field of construction, finance and property

development and therefore needs to travel abroad for business purpose

at short notice. It is in this background that the order came to be

passed against the Accused persons laying down the conditions

regarding surrender of passport and seeking leave of Court to travel

abroad.

17. Taking an overall view of the case in the peculiar facts and

circumstances of the Applicant's case while accepting submissions

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advanced by Dr. Kantawala on the factual grounds as also applicability

of the provisions of Section 88 of the Cr.P.C. to the case of Applicant, I

am of the opinion that the twin conditions namely (c) and (d) in the

order granting anticipatory bail to the Applicant are required to be

interfered with and deleted.

18. In view of my above observations and findings and the

peculiar facts and circumstances of the present case of Applicant, the

twin conditions namely (c) and (d) in the order dated 21.12.2022 qua

the Applicant before me in so far as Anticipatory Bail Application

No.960 of 2022 is concerned stand deleted. Passport of Applicant

shall be returned back to Applicant if in the custody of the

Investigating Officer or Trial Court forthwith.

19. However, deletion of the said conditions is subject to the

following conditions which shall be scrupulously followed by Applicant

whenever he desires to travel abroad until completion of trial:-

(i) Applicant is directed to furnish all details of his travel

abroad as and when he desires to undertake travel

abroad to the Investigating Officer in writing by giving

all such necessary details of his travel therein, details of

his tickets and visa, details of his stay abroad, details of

his return and also all such necessary details relating to

his mobile phone number which he would be using

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while being abroad, his Email ID and address where he

would be staying while being abroad. This is to ensure

that the whereabouts of the Applicant are known to the

prosecution agency;

(ii) Applicant shall ensure that he appears on all dates of

trial before the Special CBI Court in the Special case

and if on the date of any hearing he is not available for

any reason he shall ensure that his pleader/Advocate

shall appear and seek appropriate exemption from

appearance for his absence on that date in accordance

with law; and

(iii) Liberty to apply to both parties in case of any difficulty.

20. With the above directions, Interim Applications are allowed

in terms of prayer clauses 'a', 'b' and 'c'.

21. Both Interim Application Nos.3323 of 2024 and 3359 of

2024 are disposed.