18.crapl-332-371-11.doc jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPLICATION NO. 332 OF 2011 IN WRIT PETITION NO. 1505 OF 2011 Ms. Sabah Adnan Sami Khan ..Applicant Vs. Adnan Sami Khan & Ors. ..Respondents WITH CRI. APPLICATION NO. 371 OF 2011 IN WRIT PETITION NO. 1505 OF 2011 Adnan Sami Khan ..Applicant Vs. State of Maharashtra ..Respondent Shri. Mahesh Jethmalani i/b Smt. Edith Dey i/b Juris Consillis for applicant in Cri. Application No. 332 of 2011 Shri. Vaibhav Krishna for respondent nos.1 to 3 in Cri. Application No. 332 of 2011 and for applicant in Cri.Application No. 371 of 2011 Shri. Y.M.Nakhwa Additional Public Prosecutor for the State CORAM : B.R.GAVAI, J. DATE : 11th AUGUST, 2011. P.C.: 1 18.crapl-332-371-11.doc 1. Both these applications could be heard and disposed of today. 2. This Court in Writ Petition No. 1505 of 2011 was considering the petition filed by the applicant in Criminal Application No. 371 of 2011 i.e. Adnan Sami Khan which inturn challenges the concurrent order passed by the Metropolitan Magistrate and the Sessions Judge rejecting the application filed by the applicant therein for travelling abroad and the revision filed by him. The application was vehemently opposed by Shri. Jethmalani, the learned Senior Counsel appearing on behalf of the applicant in Criminal Application No. 332 of 2011 who happens to be estranged wife of Adnan Sami Khan. While allowing the application, this Court in the operative order had observed thus: “The application filed by the petitioner for travelling abroad as per the schedule given in the application is allowed. However, this shall be subject to the condition that two reputed citizens who own property worth Rs. one crore and 50 lacs each respectively shall file an undertaking before this Court that they shall ensure the return of the applicant for the purposes of trial in India. The said undertaking shall be to this Court on affidavit. The said two sureties would also execute the bond in the sum of Rs. 1 crore and 50 lacs respectively to the 2 18.crapl-332-371-11.doc satisfaction of the learned trial Court. In the undertaking which would be given to this Court, the said two sureties shall state about their willingness to comply with the conditions as imposed by this Court. Taking into consideration the urgency in the matter, the period for furnishing the surety would be three weeks from today. However, on the condition that undertaking as aforesaid be submitted during the course of the day.” 3. In pursuance of the said order, the applicant-husband had approached the learned Magistrate for accepting the surety of Smt. Mittal Lodhia and Mr. Rajendra Lodhia who are husband and wife. It appears that the learned Magistrate vide his order dated 14th June, 2011 had directed the police to verify and report. By subsequent order, the learned Magistrate vide order dated 6th July, 2011 had directed the surety to furnish documents showing that she holds property worth more than Rs. 1.5 crore. However, by a subsequent order the Magistrate who was in-charge since the regular Magistrate was not available, vide order dated 2nd August, 2011 observed that since the solvent surety was not furnished within a period of three weeks from the order passed by this Court, the surety application could not be considered. 3 18.crapl-332-371-11.doc 4. The applicant-wife has approached this Court contending therein that since the husband had breached the condition of furnishing solvent surety within a period of three weeks from the date of the order passed by this Court, granting blanket permission to the husband needs to be recalled. Shri. Jethmalani, the learned Senior Counsel submits that an undertaking was given to this Court that surety would be furnished within a period of three weeks from the date of the order. He submits that the solvent surety not being supplied within a period of three weeks from the date of the order, would dis-entitle the husband from the relief granted by this Court. 5. Shri. Vaibhav Krishna, the learned Counsel appearing on behalf of husband on the contrary, submits that the said sureties who gave undertakings to this Court, have furnished the entire documents pertaining to the ownership of their properties which show that the property is worth more than Rs.1.5 crore. He submits that, however, since the time in obtaining the solvent sureties is not within the hands of the husband, the solvent surety could not be furnished within a prescribed period. He further submits that even the earlier Magistrate vide order dated 6th July, 2011 had himself directed the surety to furnish documents 4 18.crapl-332-371-11.doc showing that she holds property worth more than Rs.1.5 crore and as such it was not open to the subsequent Magistrate to reject the surety only on the ground of solvent surety not being furnished. Shri. Vaibhav Krishna further submits that a valuation report of registered valuer has already been submitted before the learned Magistrate. 6. I find that the husband cannot be penalized for the reasons which are beyond his control. 7. No doubt, this Court had directed that the persons who had given undertakings to this Court, should furnish sureties within a period of three weeks from the date of the order. However, it is not in the hands of the applicant to get the solvent surety within the prescribed period. Law does not expect a party to do impossible acts. 8. In that view of the matter, I find that both the applications can be disposed of with the following directions: i) The order passed by the Magistrate, dated 2nd August, 2011 is quashed and set aside. ii) The learned Magistrate shall further first examine as to whether there is any doubt regarding the surety provided by the persons who are willing to stand sureties for the applicant. If he finds from the valuation report and the report of the police officer that it is not necessary to provide solvent surety, he 5 18.crapl-332-371-11.doc may pass an appropriate order in that regard. Iii) In the event, he finds that there is any doubt regarding the sureties furnished by the said sureties, the learned Magistrate shall grant time of four weeks from the date of his order to the husband to provide solvent sureties. iv)It may be noted that the said two sureties i.e. Smt. Mittal Lodhia and Mr. Rajendra Lodhia have filed undertakings and have undertaken that they would ensure that Shri. Adnan Sami Khan would return to India and would be available for trial as and when the trial court require his presence. The undertakings given to this Court stand at a much higher pedestal than the sureties or solvent sureties which would be submitted to the trial Court. v) Both the applications are disposed of. [ B.R.GAVAI, J. ] 6