Bina K. Ramani vs State
2010 Latest Caselaw 647 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                            Crl. M.C. No.3605/2009

                                                       Reserved on : 26.11.2009
                                                      Date of Decision : 5.2.2010

Bina K. Ramani                                             ......Petitioner
                                    Through:       Mr. C.A. Sundaram, Sr.
                                                   Advocate with Ms. Aparna
                                                   Bhat, Advocate

                                      Versus

State                                               ...... Respondent
                                    Through:       Mr. Pawan Bahl & Mr. Jaideep
                                                   Malik, APPs

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.      Whether Reporters of local papers may be
        allowed to see the judgment?                      YES
2.      To be referred to the Reporter or not ?           YES
3.      Whether the judgment should be reported
        in the Digest ?                                   YES

V.K. SHALI, J.

1. This is a petition filed by the petitioner under Section 482 Cr.P.C. r/w

Section 439 Cr.P.C. seeking modification of the order dated 21st August,

2009 passed by the learned Additional Sessions Judge granting bail to

the petitioner, subject to the condition that the petitioner shall surrender

her passport permanently to the Investigating Agency and further

allowing the petitioner to travel abroad after seeking permission of the

Trial Court or the Investigating Agency.

2. Briefly stated, the facts leading to the filing of the present case are that

the petitioner is claiming herself to be a lady of 65 years of age. An FIR

No.493/2006 was registered against her on 4th August, 2006 under

Section 120B/420/467/468/471 IPC as a sequel of FIR No.287/99

registered on 30th April, 1999 under Section 307/302/201/420B IPC at

P.S. Mehrauli which is commonly known as Jessica Lal murder case.

The case of the prosecution is that the Jessica Lal was shot dead in a

restaurant bar of the petitioner which was located at H-5/6, Mehrauli

Road, West Delhi. The restaurant bar was being run in the name and

style of "Once Upon a Time". It is alleged that the bar did not have any

valid licence for serving the liquor but had only obtained a licence from

the MCD for running an eating house. A licence was also obtained from

the DCP(Licensing). Since the trial of the accused persons in Jessica Lal

murder case, had resulted in acquittal of all the accused persons an FIR

No.120/2006 registered at P.S. Mehrauli on 6th March, 2006 and it was

assigned to Special Investigation Team (SIT to investigate as to whether

there was complicity on the part of the investigating agency which

resulted in acquittal. During the investigation carried out by the SIT,

the factum of the present petitioner running the aforesaid eating house at

the premises bearing No.H-5/6, Mehrauli Road, New Delhi, Qutub

Colonnade under the aforesaid name, was found to be without any valid

licence from the Excise Department and thus a case came to be

registered against her also for the various aforesaid offences. The

petitioner was arrested and she remained in police custody as well as

judicial custody for a short while. She was enlarged on bail by the

learned ACMM vide order dated 15th September, 2006 on furnishing a

personal bond in the sum of Rs.2.00 lakh with one surety for the like

amount on the condition that she shall surrender her passport and shall

not leave the country without permission of this Court. She was also

directed to report to the IO on 1st Saturday of every month till the filing

of the final report or till further orders and join the investigation as and

when required by the Investigating Officer.

3. The case of the petitioner is that despite the FIR having been registered,

almost 3½ years back, the police has still not filed the final report on the

ground that they are awaiting the results from FSL. It is alleged by the

petitioner that during all these years, the petitioner had joined

investigation as and when she was required. It is alleged that as a matter

of fact, on 30th April, 2007 the Investigating Officer made a statement

that the present petitioner is not required for the purpose of further

investigation.

4. The petitioner has alleged that her brothers and younger daughter live

abroad and during the period between the date of registration of the FIR

in question and the filing of the present petition, the petitioner had to

travel abroad on number of occasions after obtaining the permission

from the Court. It is alleged by her that every time she is required to

undertake the travel abroad, she has to undergo the torturous procedure

of firstly applying to the Court for not only release of her passport but

also seeking permission to travel abroad. It is also alleged by her that the

petitioner is a respectable person and has roots in society and therefore

she is not going to flee from the processes of law. It is also stated by

her that she has already filed an undertaking before the Hon'ble Court

that she would participate in the trial as and when the same commences.

It is stated that she has not misused her liberty. As a matter of fact, it is

alleged that she had testified as a witness in Jessica Lal murder case and

but for her testimony it would not have resulted in conviction of the

accused. Hence, it is prayed by her that since the aforesaid condition of

bail requiring her to obtain release of the passport and the permission for

undertaking the travel abroad is working as an onerous condition and

causing undue hardship and mental torture, therefore the said condition

may be modified, waived or deleted from the bail order.

5. On notice being issued, the respondent filed its status report and

reiterated contents of the FIR that the petitioner was running the restro

bar under the aforesaid name and style without having valid Excise

licence and this resulted in an offence under Section 61 of the Excise

Act, 1940 apart from the allegations of forging the documents and using

forged documents as genuine for which various provisions of IPC were

invoked. It is alleged by them that the petitioner had submitted to the

authorities certain self-attested bills which were forged which have been

sent to FSL on 23rd April, 2008 and again some documents have been

sent on 7th October, 2008 and the final outcome of the chemical/forensic

examination is yet to be received and therefore the charge sheet could

not be filed. With regard to the prayer for relaxation or the modification

of the condition, the status report has curiously kept silent.

6. I have heard Sh. Sundaram, the learned senior counsel on behalf of the

petitioner and Shri Bahl, the learned counsel on behalf of the respondent.

I have also gone through the record.

7. There is no dispute about the fact that the petitioner is accused of having

committed a non-bailable offence in which the grant of bail by the Court

is a matter of discretion. While exercising the discretion in favour of the

accused, the law also permits the Court both under Section 437(2) and

439 Cr.P.C. to impose such conditions as may be considered fit by the

Court releasing the accused on bail. These conditions invariably have to

be on the lines which will not only help the Investigating Agency to

conduct the fair investigation but also ensure that the accused does not

flee from the processes of law or the accused does not tamper with the

evidence. It is on account of this reason that invariably Courts have been

in appropriate cases directing the accused person to surrender his

passport or not to undertake the travel abroad without the permission of

the Court. Similar condition has been imposed in the present case also

especially for the reason that the present petitioner had her close

relations outside the country and she was a frequent traveler and

therefore in order to ensure that she does not flee from processes of law,

the Court found it fit to impose such a condition. Thus, to begin with,

there was absolutely no infirmity in the condition having been imposed

by the learned Additional Sessions Judge originally when the bail order

was passed. But at the same time while putting a restriction on the

movement of an accused in the larger interest of the society, the Court

has to also balance the fundamental rights of an individual even though

he may be an accused. The Supreme Court in Sunil Batra Vs. Delhi

Admn. AIR 1978 SC 1675 has categorically laid down that merely

because a person is a convict or an under trial, he does not get denuded

of all his fundamental rights. This legal position has been reiterated by

the Supreme Court in subsequent judgments like State of Maharashtra

Vs. Prabhakar Pandurang Sauzgiri AIR 1966 SC 424 and Satwant

Singh Sawhney Vs. Asstt. Passport Officer AIR 1967 SC 1836. It is in

this background that the convict or under trial has been given the benefit

to cast vote. This would be more so in a case where a person though

may be an under trial, but has been released on bail with the condition or

putting a restriction on her movement to travel abroad. If the petitioner

on account of such a restriction on her movement to travel abroad was

required to obtain permission and the release of her passport this

condition per se cannot be said to unreasonable. Then the next question

which is to be considered is whether she has at any given point of time

misused the said concession or the liberty which has been granted to her?

The petitioner has made a definite averment in the petition that after the

registration of the FIR against her, not only she has travelled abroad after

obtaining permission from the Court but she has scrupulously given back

and surrendered the passport and subjected herself to the processes of

law. Thus she has not misused her concession.

8. It is really very strange that despite 3½ years having elapsed, the

Investigating Agency is still not able to file a final report before the

competent court. If on account of inapt attitude or the inapt handling of

the Investigating Agency the final report is not filed within a reasonable

time which this Court in any given case considers should not be more

than a year or so, it does not mean that the accused who has been

enlarged on bail with the condition of surrendering his passport or

seeking permission from the Court to travel abroad can be made to suffer

for such callous attitude of the Investigating Agency because in such a

case it would tantamount to taking away the right to go abroad which is a

part of personal liberty by a procedure which by no stretch of

imagination can be said to be just, fair and reasonable. It has been held

in Maneka Gandhi Vs. UOI AIR 1978 SC 597 that under Article 21 the

procedure established by law must be just, fair and reasonable through

which life or personal liberty is taken away. If this is permitted to be

done, then it will be simply putting a premium on the inaptness or

callous attitude of the Investigating Agency and also working to the

detriment of the fundamental right of an under trial who may be enlarged

on bail. The purpose of imposition of such a condition, as has already

been stated hereinbefore, is to ensure that the accused must submit

herself to the processes of law. The said purpose can be secured by

modifying the said condition of surrendering the passport and obtaining

the permission from the Court by requiring the accused to either furnish

some title deed of an immovable property to the Court to ensure that she

does not flee from the processes of law or by imposing some additional

conditions.

9. The petitioner in the instant case has categorically stated that she has

interest in immovable property at Delhi as well as at Goa, therefore I feel

that the interest of the Investigating Agency can be secured by ensuring

that she makes herself available during the course of the trial by

requiring her to file an undertaking that she will make herself available

during the course of investigation or trial.

10. For the reasons mentioned above, I feel that the prayer of the petitioner

for waiving the condition of surrendering her passport and obtaining the

permission from the competent court in terms of the order dated 21st

August, 2009 is working very onerous on the petitioner restricting her

freedom of movement and her right to travel abroad under guaranteed

Article 21 of the Constitution, especially in view of the fact that already

3½ years have elapsed and yet the Investigating Agency has not filed the

final report. Accordingly, the said condition is dispensed with, however

the petitioner is directed to furnish an undertaking in writing to the

Registrar General of this Court that she will make herself available

during the course of investigation or the trial as and when she is required

apart from furnishing itinerary of her travel abroad to the IO, including

the place where she is likely to stay and the countries she proposes to

visit and the date of departure and the date of return. This condition will

be deemed to have been incorporated as a condition of the bail till the

charge sheet is filed and after the charge sheet is filed, she would ensure

that the trial of the case shall not be adjourned or deferred on the ground

that she is undertaking to travel abroad.

11. Accordingly, with this modification of the bail order dated 21st August,

2009, the petition is allowed.

V.K. SHALI, J.

February 05, 2010 skw