VALIBHAI N.MITHIBORWALA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE applicant has moved this Court for modification of the order passed on 30th December 1998 while deciding the application being criminal application no.4024 of 1998 wherein the applicant wants modification that the conditions imposed on the applicant with regard to the permission to leave India as well as the attendance on every Sunday at the police station and prayed that the said order be suitably modified. The applicant has annexed the order passed in Criminal application no.4024 of 1998 dtd. 30th Dec.1998 wherein the Court has while releasing the accused, imposed the conditions to the effect that the petitioner no.2 viz. Valibhai Mithiborwala shall not leave India without prior permission from the police as well as subsequent order passed by my brother Justice Pandya on 8th April 1999 on an application filed by the petitioner being criminal misc. application no.1107 of 1999 and while deciding the said application, the applicant was permitted to leave India on tour undertaken by him. In this application, the applicant has also highlighted about his business activities in para 3 and has averred that the turnover of the company is about 20 corers per year, the company has engaged in manufacturing of plywood of different kind and supplies mainly to the Government and Railway Departments. While filing this application, by way of interim relief, the applicant has prayed for permitting him to go to Pakistan to visit his wife for a period of two weeks. This application is pending since 1st May 1999 and matter was notified before the vacation Court during the vacation on 21st May 1999. The copy of the application is duly served to the office of Public Prosecutor. Thereafter, the matter was notified before me for admission and even considering the request, the matter was adjourned from time to time and the matter was notified before me for hearing today. The application is supported with an affidavit of applicant dated 19th May 1999 and the copy is duly served to the office of the Public Prosecutor. No reply affidavit is filed and accordingly, the Cuort is required to consider this application on the strength of the papers attached to this application.

(2.) MR .Marwadi, the learned advocate appearing on behalf of the applicant has submitted that so for as the applicant-accused is concerned, he was released on bail as per order passed in criminal application no.4024 of 1998 dated 30th Dec,1998. While imposing conditions, the applicant was ordered 'not to leave India without prior permission from the police'. After the applicant was released on bail as per the bail order, the application for seeking modification for permission to leave India was moved by filing criminal application no.1107 of 1999 and after hearing the said application, my brother Justice Patankar has allowed the said application and permitted the applicant to leave India on tour undertaken by him as mentioned in the order. On going through the order, it transpired that the permission was sought for by the applicant as applicant was to go for pilgrimage alongwith his wife at Karbala in Iraq. Further details were also furnished about his tour. Accordingly, though as per order passed while releasing the accused on bail, the applicant was required to obtain permission from the police, this Court has entertained the application and permitted the applicant to leave India.

(3.) THE learned A.P.P. Mr.Shinde appearing for the respondent-State, has opposed this application and according to him, the applicant has sought for permission by way of interim relief to go to Pakistan for a period of two weeks and he opposed such permission and prayed that such permission be rejected. However, I fail to appreciate the contention of the learned A.P.P. because, in the main prayer of the applicant in this application is that applicant wants modification of the conditions in respect of attendance on every Sunday at the police station and also regarding permission to leave India without permission of the police. This Court is not required to examine the prosecution case as the applicant is already released on bail. This Court is also not required to ignore about the averments made by the applicant in this application in detail about his business as highlighted in para no. 3 supported with affidavit of the applicant. As observed earlier, no reply affidavit is filed and even the applicant has move a Senior Police Inspector by seeking permission on 23rd June 1999, till date, he has not taken any decision on the said application as the applicant has not yet received any communication from the said authority. With this background, this Court is required to allow the application and modify the conditions imposed on the applicant while releasing him on bail as per order dated 30th December 1998. The condition regarding obtaining prior permission from the police is redundant as the police authority is not entertaining such application.