1 wp1505.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION. Writ Petition No. 1505 of 2011 Adnan Sami Khan ....Petitioner v/s. State of Maharashtra ....Respondent Mr. Vaibhav Krishna with Ms. Laxmi Medekar i/b. M/s. Juris Consillis for the petitioner. Mr. Mahesh Jethmalani, Sr. Advocate with Mrs. Editu Dey for original Intervenor-complainant. CORAM: B.R. GAVAI, J. 7th June, 2011 P.C. Rule. Rule made returnable forthwith. 2. Shri Jethmalani, the learned Senior Counsel who appears with Smt. Editu Dey orally submits that the original complainant i.e. Mrs. Sabha Galadari is a necessary party in the present proceedings and prays that he may be permitted to address the Court on her behalf. In the interest of justice, the prayer is granted. The learned Counsel is permitted to address the Court on behalf of the original complainant. 3. Heard finally by consent of the parties. 2 wp1505.11.sxw 4. The petition takes exception to the order dated 2nd June, 2011 passed by the learned Sessions Judge, Greater Mumbai in Revision Application No. 584/2011 thereby dismissing the revision filed by the present petitioner challenging the order passed by the learned 22nd Metropolitan Magistrate, Andheri Court, Mumbai dated 23rd May, 2011 thereby rejecting the application filed by the present applicant for permission to travel abroad. 5. The applicant is facing prosecution in the Court of learned Metropolitan Magistrate for the offence punishable under Section 323, 504, 506, 498-A, 406, 420 and 384 of the Indian Penal Code on the basis of the allegations made by the estranged wife namely Sabha Adnan Sami. 6. In the said proceedings on an earlier occasion, the applicant was required to approach this Court for grant of anticipatory bail. The learned Vacation Judge of this Court vide order dated 26th May, 2009 had granted anticipatory bail by imposing certain conditions. The relevant condition would be the conditions which reads thus:- (C) The applicant/accused will not leave the Country without permission of the Sessions Court. (D) The applicant/accused shall furnish the schedule of his foreign tour if at all he has to go out for personal work or performance or any other work. 3 wp1505.11.sxw (F) The learned Counsel appearing for the applicant/accused has submitted that the applicant/accused is going to perform in Canada via other countries from 28/5/2009 till 5/6/2009 for which he prayed that the applicant/accused may be permitted to leave Indian for this particular period. Permission granted subject to handing over detail programme alongwith address of the residential accommodation itinerary to the Investigating Officer till tomorrow i.e. 27/5/2009 and the applicant/accused will report to the Investigating Officer on 7th June, 2009. 7. It is not in dispute that subsequent to the said order being passed by this Court, the applicant had on certain occasions sought permission from the learned trial Court which were granted by the it. In the said proceedings the charge sheet is already filed on 3rd December, 2009. 8. In the meantime, the proceedings under the provisions of Foreign Exchange Management Act (hereinafter referred to as FEMA Act) are also initiated against the present petitioner and in the said proceedings the Special Director vide order dated 21st December, 2010 in addition to confiscation of the flats mentioned in the said order has also imposed the penalty of Rs. 20 lacs. Being aggrieved thereby, the petitioner submits that, he has already preferred an appeal before the competent forum with an application for exemption of the deposit of the penalty. 9. The applicant who is desirous of traveling abroad for the performances in various countries, the details of which are given in the application, applied to 4 wp1505.11.sxw the Court of the learned Magistrate for grant of permission. The learned Magistrate after finding that the order has been passed against the applicant under FEMA Act, rejected the application. Being aggrieved thereby, the revision was preferred before the learned Sessions Judge. The same is also rejected. Hence, the present application. 10. Shri Vaibhav Krishna, the learned Counsel appearing on behalf of applicant submits that the applicant is renowned music performer. He submits that on earlier occasions also the permission was granted to applicant to travel abroad and on no occasion he has misused the liberty given to him. The learned Counsel further submits that though the applicant is a Pakistani national, for utilization of his potential, the India is the best country and, therefore, there is no likelihood that he would not return back to India. 11. The learned Counsel further submits that proceedings under FEMA have nothing to do with the proceedings out of which the present petition arises inasmuch as the present proceedings are on the basis of the complaint made by the estranged wife of the petitioner. 12. Shri Jethmalani, the learned Senior Counsel appearing on behalf of the Complainant submits that petitioner is not an Indian national. It is submitted that in view of the order passed in the proceedings under FEMA, the petitioner 5 wp1505.11.sxw at present does not own the property in question and also he has not paid the penalty of Rs. 20 lacs. He, therefore, submits that there is every likelihood that if the petitioner is permitted to go abroad, he would not return back to India. He, therefore, submits that accused who is facing criminal trials would not be available to the Courts for proceeding in accordance with law. The learned Counsel, therefore, submits that application as made is liable to be rejected. 13. Learned APP also vehemently opposes the application. He submits that the applicant who is facing serious charges should not be permitted to go abroad. 14. Undisputedly, on the earlier occasions when liberty was granted in favour of the applicant, he has not misused the liberty and has returned to India after the period for which permission was granted was over. The only difference now is regarding the order passed under FEMA. It is submitted that said order is already appealed against. I am of the considered view that since the applicant has not misused the liberty granted in his favour by the Courts on earlier occasion, he should not be deprived of holding the performances which are scheduled. Insofar as securing the presence of the applicant for the trial in India is concerned, stringent conditions could be imposed so as to ensure that the applicant returns to India to face the criminal trial. I further find that since 6 wp1505.11.sxw according to the applicants he is required to frequently travel abroad for performances, which fact is not disputed, it would be in the interest of justice that the permission is granted to the applicant till the conclusion of trial, however, subject to stringent conditions. This would avoid unnecessary applications on every occasion and further proceedings. 15. In the morning session, the learned Counsel for the applicant was asked to seek instructions as to whether he can provide surety of two reputed citizens, who can undertake to ensure return of the applicant to India. Accordingly in the second half, the learned Counsel has stated that two reputed citizens namely Smt. Mittal Lodhia and Rajendra Bikalal Lodhia are willing to give such an undertaking. The said two sureties are also personally present in the Court. 16. In that view of the matter, I am inclined to pass the following order: (i) The impugned orders are quashed and set aside. (ii) The application filed by the petitioner for traveling abroad as per the schedule given in the application is allowed. However, this shall be subject to the conditions 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 7 wp1505.11.sxw 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 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 would be submitted during the course of the day. (iii) The parties to act on the authenticated copy of this order. (B.R. GAVAI, J)