Malik Kashiff Khan

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IN THE HIGH COURT OF BOMBAY AT GOA

Criminal Writ Petition No. / 2024

MALIK KASHIFF KHAN ... PETITIONER

VERSUS

STATE OF GOA & ANR ... RESPONDENTS

INDEX

Sr. Particulars Page

no no.

1. Synopsis and points for

determination

2. Memo of Criminal Writ Petition with

supporting Affidavit

3. Exhibit A Colly – A copy of the

chargesheet along with supporting

documents.
4. Exhibit B Colly – A copy of the

Application dated 07.08.2024 along

with the intimation dated

30.07.2024.

5. Exhibit C - A copy of the reply

dated 12.08.2024.

6. Exhibit D - A certified copy of the

impugned Order dated 03.09.2024.

7. Vakalatnama

Porvorim, Goa

October __, 2024 Adv. for the

Petitioner
IN THE HIGH COURT OF BOMBAY AT GOA

Criminal Writ Petition No. / 2024

MALIK KASHIFF KHAN ... PETITIONER

VERSUS

STATE OF GOA & ANR ... RESPONDENTS

SYNOPSIS

The Petitioner is an Indian National

residing at the address mentioned in

the cause title. The Petitioner is the

Accused in IPC/211/2015/D before

the Judicial Magistrate First Class

“D” Court at Panaji. The Respondent

No. 1 is the State of Goa, represented

by the Ld. Public Prosecutor while the

Respondent No. 2 is the concerned


Police Station.

19.11.201 The Complainant filed a Complaint

3 alleging that the Petitioner had

accepted the amount of Rs.

10,00,000/- (Rupees Ten Lakhs Only)

from the Complainant for obtaining

the exclusive Master Franchise

Agreement for the State of Goa of

Aura Wellness Spa. It was further

alleged that after receiving the said

amount, the Petitioner did not

execute Master Franchise Agreement

with the Complainant and also

refused to refund the said amount.

04.07.201 The Respondent No. 2 filed a

5 chargesheet vide No. 205/2015.

07.08.202 The prosecution filed an Application

4 purportedly based on the intimation

dated 30.07.2024 filed by the

Complainant bearing subject

“Cancellation of Bail”. It is solely


relying on the said apprehension that

the prosecution filed the purported

Application requesting the Court to

do the needful to secure the presence

of the Accused on every date of

hearing personally.

12.08.202 The Petitioner through his advocate

4 filed a reply to the said Application

wherein it was categorically stated

that the Petitioner has been

represented by his advocate on every

date of hearing and the physical

presence of the Petitioner is not

required on every date of hearing.

03.09.202 The Ld. Trial Court without

4 considering that the Application was

not maintainable under the law and

after coming to a conclusion that the

Petitioner has been represented by an

Advocate and his surety has been

duly filed, proceeded to impose an


additional condition, albeit illegally

and arbitrarily by which the

Petitioner was required to seek

permission from the Court if he was

travelling abroad

Hence the present Criminal Writ

Petition.

POINTS FOR DETERMINATION

1. Whether the impugned Order is illegal,

arbitrary and is wholly without jurisdiction?

2. Whether the Ld. Trial Court has committed

Jurisdictional error, in as much as, it has

imposed an additional condition, which cannot

be countenanced in law?

3. Such other and further grounds as may be

raised.
ACTS AND AUTHORITIES

1. Constitution of India

2. The Bhartiya Nagarik Suraksha Sanhita, 2023

Porvorim, Goa

October __, 2024 Adv. for the

Petitioner
IN THE HIGH COURT OF BOMBAY AT GOA.

Criminal Writ Petition No. /2024

IN THE MATTER OF

ARTICLES 227 OF THE

CONSTITUTION OF INDIA

AND

IN THE MATTER OF SECTION

528 OF THE BHARTIYA

NAGARIK SURAKSHA

SANHITA, 2023

AND

IN THE MATTER OF CRIME

NO. 71/2014 REGISTERED

WITH PANAJI POLICE


STATION UNDER SECTION

420 IPC

AND

IN THE MATTER OF ORDER

DATED 03.09.2024 PASSED

BY COURT OF JUDICIAL

MAGISTRATE FIRST CLASS

‘D’ COURT AT PANAJI.

AND

IN THE MATTER OF ILLEGAL

AND ARBITRARY ORDER

WITHOUT ANY JURISDICTION

MR. MALIK KASHIFF KHAN


Son of Sardar Hashim Khan,
38 years of age, Businessman
Director of M/s. Aura Wellness &
Healing Services Pvt. Ltd.,
having its registered office at
601, 6th Floor, God’s Gift Tower,
Junction of S.V. Road & Hill Road,
Near Lucky Hotel, Bandra – 9 (West),
Mumbai. …
Petitioner

VERSUS

1. STATE OF GOA
Through Public Prosecutor,
High Court of Bombay at Goa,
Porvorim – Goa

2. THE POLICE INSPECTOR


Panaji Police Station,
Panaji – Goa. …
Respondents

[All above are Registered Addresses]

TO,

THE HONOURABLE THE

CHIEF JUSTICE AND OTHER

COMPANION JUDGES OF
THIS HONOURABLE HIGH

COURT.

THIS HUMBLE PETITION OF THE

PETITIONER ABOVE NAMED:

MOST RESPECTFULLY SHEWETH:

1. The Petitioner is an Indian National residing

at the address mentioned in the cause title

hereinabove. The Petitioner is the Accused in

Case No. IPC/211/2015/D ( hereinafter

referred to as “the said case” ) pending

before the Court of Judicial Magistrate First

Class ‘D’ Court at Panaji Goa ( hereinafter

referred to as “Ld. Trial Court” ). The

Respondent No. 1 is the State of Goa,

represented by the Ld. Public Prosecutor

while the Respondent No. 2 is the concerned

Police Station.
2. The Petitioner is filing the present Criminal

Writ Petition being aggrieved by the Order

dated 03.09.2024 passed by the Ld. Trial

Court in the said case by which the Ld. Trial

Court has been pleased to impose an

additional condition on the Petitioner to seek

permission from the Ld. Trial Court every

time before travelling abroad ( hereinafter

referred to as the “impugned Order” ). The

said Order has been passed pursuant to an

Application filed by the prosecution

purportedly based on a Complaint received

from the original Complainant.

The challenge to the Impugned Order is

on the ground that the same is illegal, and

arbitrary, in as much as, the Application filed

by the Public Prosecutor was dehors the law

and not supported by any provision.

The challenge is further on the ground

that the Ld. Trial Court has misdirected itself


in imposing a condition upon the Petitioner

pursuant to an Application filed by the

prosecution when no such condition was

imposed at the stage of granting Bail.

The challenge is further on the ground

that the Petitioner has to travel overseas

regularly and the present condition is not only

onerous but also wholly without jurisdiction.

Brief facts leading to the present Petition are

set out herein below

3. The Complainant – Mr. Mukhtar Amlani, filed

a Complaint on 19.11.2013, alleging that the

Petitioner had accepted the amount of Rs.

10,00,000/- (Rupees Ten Lakhs Only) from the

Complainant for obtaining the exclusive

Master Franchise Agreement for the State of

Goa of Aura Wellness Spa. It was further

alleged that after receiving the said amount,

the Petitioner did not execute Master

Franchise Agreement with the Complainant


and also refused to refund the said amount. It

is in these circumstances that the

Complainant filed the said Complaint alleging

cheating on the part of the Petitioner.

Although, the Respondent No. 2, initially, did

not register the FIR on account of the dispute

being Civil in nature, the Ld. Trial Court

directed the Respondent No. 2 to register the

said FIR. Pursuant to the said Order the

Respondent No. 2 registered the said FIR No.

71/2014.

4. Upon conducting investigation, the

Respondent No. 2 filed the chargesheet on

04.07.2015 which was registered as

chargesheet No. 205/2015 under Section 420

IPC. The said chargesheet culminated into the

said case wherein the Petitioner is arrayed as

an Accused. A copy of the chargesheet along

with supporting documents is annexed hereto

as “Exhibit A Colly”.
5. Although, a proclamation was issued against

the Petitioner in the said case by the Ld. Trial

Court, the same was cancelled by imposing

suitable conditions set out hereinbelow;

“…(a) Accused to furnish surety of Rs.

25,000/-

(b) Accused to remain present on all

dates either personally or through advocate

(c) Accused to furnish his detailed

address temporary as well as permanent

(d) Accused to furnish details of 2

blood relatives …”

6. It is pertinent to note that there was no

condition whatsoever that restricted the

Petitioner from travelling abroad. The

Petitioner further categorically states that the

Petitioner has complied with all the conditions

and has represented himself through an

Advocate for all dates of hearing. There has

been no allegation of violation of any

condition imposed on the Petitioner.


7. Strangely, on 07.08.2024, the prosecution

filed an Application purportedly based on the

intimation dated 30.07.2024 filed by the

Complainant bearing subject “Cancellation of

Bail”. The Complainant in the said intimation

has stated that he has received information

from reliable sources that the Petitioner is

going to flee from the country any moment. It

is solely relying on the said apprehension that

the prosecution filed the purported

Application requesting the Court to do the

needful to secure the presence of the Accused

on every date of hearing personally. The said

Application was neither filed under any

provision of law nor was supported by any

statutory backing. The said Application was

devoid of any merit whatsoever and ought to

have been dismissed as not maintainable. A

copy of the Application dated 07.08.2024

along with the intimation dated 30.07.2024 is

annexed hereto as “Exhibit B Colly”.


8. The Petitioner through his advocate filed a

reply to the said Application wherein it was

categorically stated that the Petitioner has

been represented by his advocate on every

date of hearing and the physical presence of

the Petitioner is not required on every date of

hearing. The trial has not hampered on

account of the absence of the Accused since

his Advocate has been present and has

proceeded with the Trial. It was further stated

that the Complainant desires to only harass

the Petitioner and obstruct his business

activities. A copy of the reply dated

12.08.2024 is annexed hereto as “Exhibit C”.

9. The Ld. Trial Court without considering that

the Application was not maintainable under

the law and after coming to a conclusion that

the Petitioner has been represented by an

Advocate and his surety has been duly filed,

proceeded to impose an additional condition,


albeit illegally and arbitrarily by which the

Petitioner was required to seek permission

from the Court if he was travelling abroad.

10. The Ld. Trial Court has rendered a

finding that there is nothing on record to

support the apprehension raised by the

Complainant. The Ld. Trial Court has further

recorded that all the conditions have been

duly complied with. Despite the said findings,

the Ld. Trial Court has proceeded to pass the

impugned Order by adding a condition which

never formed part of any of the earlier

Orders. Annexed hereto marked as “Exhibit

D” is a certified copy of the impugned Order.

11. The Petitioner submits that the

impugned Order is illegal, arbitrary and

wholly without jurisdiction. The impugned

Order suffers from material irregularity, in as

much as, the Application filed by the


prosecution was neither maintainable in facts

nor in law.

12. The Petitioner submits that the Ld. Trial

Court has committed Jurisdictional error, in as

much as, it has imposed an additional

condition, which cannot be countenanced in

law.

13. The Petitioner submits that the Ld. Trial

Court has not only wrongly entertained the

Application but has proceeded beyond the

Application as the prosecution had never

sought for imposing such an onerous

condition on the Petitioner.

14. The Petitioner states that the Petitioner

is the Managing Director of Fashion TV India

Pvt. Ltd. The work requires the Petitioner to

travel overseas frequently to attend business

related events. Fashion TV has various offices

across the globe and since the Petitioner

heads Fashion TV in India, the Petitioner is


required to attend various events and forums

all across the world.

15. The Petitioner states that the imposition

of the said condition on the Petitioner vide the

impugned Order is resulting in grave

prejudice to the Petitioner. The Petitioner

states that within a period of less than two

months from the passing of the said Order,

the Petitioner has already filed two

applications seeking permission to travel

abroad before the Ld. Trial Court.

Continuation of the operation of the impugned

Order is not only causing prejudice and

inconvenience to the Petitioner but is also

onerous and cumbersome in the peculiar facts

of the present case since the work of the

Petitioner mandates overseas travel at regular

intervals.

16. The Petitioner submits that the Ld. Trial

Court imposed the said conditions without


affording an effective opportunity of hearing

to the Petitioner since the Application did not

seek imposition of the said condition. The Ld.

Trial Court has, prima facie, travelled beyond

the Application and wholly without

jurisdiction.

17. Being aggrieved by the passing of the

Order dated 03.09.2024, the Petitioner

prefers the present Criminal Writ Petition on

the following amongst other grounds which

are urged in the alternate and without

prejudice to one another

GROUNDS

a) The Petitioner submits that the Impugned

Order is illegal, arbitrary and wholly

without jurisdiction;

b) The Petitioner submits that the Ld. Trial

Court has committed Jurisdictional error, in

as much as, it has imposed an additional


condition, which cannot be countenanced in

law;

c) The Petitioner submits that the imposition

of the said condition on the Petitioner vide

the impugned Order is resulting in grave

prejudice to the Petitioner, owing to the

designation of the Petitioner;

d) The Petitioner submits that the Ld. Trial

Court imposed the said conditions without

affording an effective opportunity of

hearing to the Petitioner since the

Application did not seek imposition of the

said condition;

e) The Petitioner craves leave to urge such

other and further grounds at the time of

hearing.

18. The Petitioner under the circumstances is

entitled for a writ of certiorari or a writ in the

nature of certiorari or any other appropriate


writ, order or direction calling for the records

of the Ld. Trial Court in IPC/211/2015/D and

upon perusing the same, quash and set aside

the Order dated 03.09.2024 passed by the Ld.

Trial Court in the said case.

19. Pending the hearing and final disposal of the

present Criminal Writ Petition, stay the

operation and implementation of the

impugned Order dated 03.09.2024.

20. The Petitioner has not filed any other Petition

either in this Hon’ble Court or in the Hon’ble

Supreme Court of India regarding the subject

matter of the present petition.

21. The Petitioner states that in view of the

peculiar facts and circumstances and the

reliefs prayed for in the above petition, the

Petitioner has no efficacious legal remedy

available.
22. The Petitioner craves leave of this Hon’ble

Court to amend the petition by adding or

deleting the paragraphs and grounds as and

when found necessary.

23. The Petitioner has not received any notice of

Caveat application.

24. Appropriate Court fees are paid herewith

The Petitioner therefore prays that this

Honourable Court be pleased to:

PRAYERS

a) Grant a writ of certiorari or a writ in

the nature of certiorari or any other

appropriate writ, order or direction

calling for the records of the Ld.

Trial Court in IPC/211/2015/D and

upon perusing the same, quash and

set aside the Order dated


03.09.2024 passed by the Ld. Trial

Court in the said case;

b) During the pendency of the present

Criminal Writ Petition stay the

operation and implementation of the

impugned Order dated 03.09.2024;

c) Grant ex-parte / interim / ad-interim

relief in terms of prayer clause (b)

above;

d) Grant such other and further reliefs,

as this Honourable Court deems fit

and proper.

Porvorim, Goa.
October ___, 2024
Petitioner

Adv. for the Petitioner

VERIFICATION
I, Malik Kashiff Khan, 38 Years of age, Managing

Director of Fashion TV Pvt. Ltd., Indian National,

the Petitioner above named, do hereby on solemn

affirmation verify that the contents of paragraphs 1

to 8 of the Criminal Writ Petition, which have been

explained to me in Hindi, are true as per my own

knowledge and the contents of the remaining

paragraphs viz. 9 to 24 which also have been

explained to me in Hindi, are based on the legal

submissions and/or inferences of facts., which I

believe to be true.

Porvorim, Goa.

October ____, 2024.

DEPONENT

Identified by me:

Advocate for the Petitioner


IN THE HIGH COURT OF BOMBAY AT GOA

Criminal Writ Petition No. / 2024

MALIK KASHIFF KHAN …Petitioner


v/s

STATE OF GOA & ANR …


Respondents

AFFIDAVIT

I, Malik Kashiff Khan, 38 years of age, Managing

Director of Fashion TV Pvt. Ltd., Indian Citizen, the

Petitioner above named, do hereby on solemn

affirmation state and submit as under:

1. I say that I am filing the accompanying

Criminal Writ Petition before this Honourable

Court for reliefs more particularly set out therein.

I say that I have been explained the contents of the

said Criminal Writ Petition in Hindi which is a

language known to me. I crave leave to refer to and

rely upon the averments made therein as if the

same is specifically averred herein for the sake of

brevity.
2. I say that the annexures to this Criminal Writ

Petition are the photocopies of the respective

originals / certified copies.

3. I say that the contents of paragraphs 1 to 8 of

the Criminal Writ Petition, which have been

explained to me in Hindi, are true as per my own

knowledge and the contents of the remaining

paragraphs 10 to 24 which also have been

explained to me in Hindi, are based on the legal

submissions and/or inferences of facts., which I

believe to be true.

4. I say that the contents of the aforesaid paras 1

to 3 of this affidavit are true to my own knowledge.

Solemnly affirmed at Porvorim -

Goa on this ___ day of October,

2024

D E P O N E N T.

Identified by me:
(Adv. for the Petitioner)
VAKALATNAMA
IN THE HIGH COURT OF BOMBAY AT GOA
Criminal Writ Petition No. / 2024
Malik Kashiff Khan …
Petitioner

v/s

State of Goa & Anr …


Respondents

I, Mr. Malik Kashiff Khan, major of age, Petitioner in the


abovementioned matter, hereby appoint Adv. Vibhav
Amonkar, Adv. Shaish Naik, Adv. Omkar bhave, and Adv.
Raj Chodankar having their Office at 5th floor, P-1, Satt
Adhar Chambers, Panaji – Goa 403 001 to appear and act
on my behalf as my Advocates.

Witness my hand on this ___day of October, 2024.

Signed:

____________

Accepted:

______________ ___________ ___________

( Vibhav Amonkar ) ( Shaish Naik) ( Omkar Bhave )


______________
( Raj Chodankar )

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