Dr.Vinay Kumar Jain Vs State of U.P. Thru. Prin. Secy. Home Lko. and Another

Neutral Citation No. - 2025:AHC-LKO:27437

Court No. - 14

Case :- APPLICATION U/S 482 No. - 3306 of 2025

Applicant :- Dr.Vinay Kumar Jain Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Sudeep Kumar,Prashant Kumar,Sarvesh Kumar Tiwari

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Counsel for Opposite Party :- G.A.

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Hon'ble Manish Kumar,J.

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Heard Shri Sudeep Kumar, learned counsel for the applicant and learned AGA for the State.

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The present case has been filed under Section 482 Cr.P.C./528 B.N.S.S. with following main relief:-

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" For the facts, reasons and circumstances of the case mentioned in the accompanying affidavit, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to set aside and quash the impugned order dated 10.12.2024 passed by the learned Chief Judicial Magistrate, Barabanki in Misc. Case No. 940 of 2024, whereby the application seeking permission to travel abroad was rejected. "

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The brief facts of the present case are that an FIR dated 01.11.2023 has been lodged against the applicant under Sections 420, 425, 467, 468, 471 and 120-B of Indian Penal Code at Police Station Kotwali Nagar, District Barabanki. The applicant has approached this Court by filing an Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. bearing no. 1518 of 2024 for grant of anticipatory bail. The applicant has been granted anticipatory bail by interim order of this Court dated 29.08.2024 and the same has been finalized by order dated 20.09.2024.

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Learned Counsel for the applicant has submitted that the applicant is a medical practitioner by profession and running a Nursing Home and Diagnostic Center at Barabanki. Due to the pendency of Case Crime No. 1163 of 2023, the applicant had moved an application dated 25.11.2024 for grant of permission to the applicant to visit U.S.A. for business purposes i.e. for purchase of machines, for attending conferences, to take care of his daughter, who is living in

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U.S.A and who is suffering from physical and mental agony. The said application of the applicant has been rejected by passing the impugned order dated 10.12.2024 by the Chief Judicial Magistrate, Barabanki observing that by getting order of anticipatory bail, accused is in indirect custody of the Court with the several conditions including the one that he will present himself before the Investigating Officer as and when needed and granting permission to the applicant to leave India will not only hamper the proper and impartial investigation but it will also amount to the infringement of the conditions of the anticipatory bail and bail bonds.

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It is further submitted that the Court concerned may regulate the foreign visit of applicant but cannot absolutely delete the same. The applicant has visited U.S.A. earlier at least 7 to 8 times for business purposes, attending conference and to take care of her daughter and thus, there is no chance that he will not return to India, thus, under these circumstances, rejection of application preferred by the applicant by C.J.M. Barabanki is bad in the eyes of law. In support of his submissions, he placed reliance upon the judgment of Hon'ble Supreme Court in the case of Parvez Noordin Lokhandwalla Vs. State of Maharashtra and another (2020) 10 SCC 77. The relevant extract of the said judgment is being reproduced hereinbelow:-

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"18. This Court also discussed the scope of the discretion of the court to impose “any condition” on the grant of bail and observed : (Sumit Mehta case [Sumit Mehta v. State (NCT of Delhi), (2013) 15 SCC 570 : (2014) 6 SCC (Cri) 560] , SCC p. 576, para 15)

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“ 15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail.”

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19. In Barun Chandra Thakur v. Ryan Augustine Pinto [Barun Chandra Thakur v. Ryan Augustine Pinto, 2019 SCC OnLine SC 1899] , this Court restored a condition mandating that the respondent seek prior permission from a competent court for travel abroad. The condition, which was originally imposed by the High Court while granting anticipatory bail was subsequently deleted by it. This Court made the following observations with respect to imposing restrictions on the accused's right to travel : (SCC OnLine SC para 9)

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“ 9. … There could be no gainsaying to that the right to travel abroad is a valuable one and an integral part of the right to personal

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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. … At best, the condition for seeking permission before travelling abroad could have been regulated, not deleted altogether.”

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22. The private complaint which is the genesis of the present proceedings was instituted in January 2014. The gravamen of the allegation is that the appellant has forged and fabricated the power of attorney of 19-12-2011 of his brother Shalin. Mr Jha submits that, as a matter of fact, the power of attorney has not been used at any point; his brother was present in India at the time when conveyance was entered into; and that his brother has never raised any objection. However, we are not inclined to go into these factual aspects at the present stage. It would suffice to note that the coaccused was granted bail by the Sessions Judge, Thane on 16-42018. We are called upon to decide only whether the appellant should be permitted to travel to the US for eight weeks. In evaluating this issue, we must have regard to the nature of the allegations, the conduct of the appellant and above all, the need to ensure that he does not pose a risk of evading the prosecution. 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.

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25. 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

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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. Notwithstanding or perhaps because of this, the appellant has frequently travelled between the US and India even after the filing of the complaint and the FIR. We accordingly are of the view that the application for modification was incorrectly rejected by the High Court and the appellant ought to have been allowed to travel to the US for a period of eight weeks."

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On the other hand, learned A.G.A. has opposed the application but unable to dispute the submissions made by learned counsel for the applicant and the applicability of law laid down in the case of Parvez Noordin Lokhandwalla (supra) , in the present case.

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After hearing learned counsel for the parties and going through the record of the case, it is found that this Court while passing the interim order and granting anticipatory bail to the applicant on 29.08.2024 had not put any such restriction that the applicant shall not visit abroad rather it was mentioned in the order that the applicant shall not leave India without previous permission of the Court and when the anticipatory bail was finally allowed by judgment and order dated 20.9.2024, it has been mentioned therein that " .......the interim protection granted by this Court vide order dated 29.08.2024 is made absolute ......" so there was no such condition put by this Court while granting anticipatory bail to the applicant to delete altogether the permission to the applicant to travel abroad and as per the law laid down by Hon'ble Supreme Court in the case of Parvez Noordin Lokhandwalla (supra) wherein it has been held that Court can regulate the foreign visit of applicant but it cannot be deleted altogether as such, the order dated 10.12.2024 is hereby quashed.

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The Chief Judicial Magistrate, Barabanki is directed to consider the case of the applicant in view of the discussions made hereinabove and considering the law laid down by Hon'ble Supreme

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Court in the case of Parvez Noordin Lokhandwalla (supra).

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In view of the aforesaid, the present case is hereby allowed.

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Order Date :- 9.5.2025 Ashish

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Digitally signed by :- ASHISH MISHRA High Court of Judicature at Allahabad, Lucknow Bench

Dr.Vinay Kumar Jain v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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Dr.Vinay Kumar Jain v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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