Law Does Not Permit Discrimination Between Foreigner And Indian Nationals While Granting Bail: J&K High Court

Justice Sindhu Sharma, while deciding on the petition filed by a foreign national accused under Section 370 of the Indian Penal Code and Sections 14A and 14C of the Foreigners Act, 1946, emphasized that “the law does not authorize or permit any discrimination between a foreign national and Indian national in the matter of granting bail and the same has to be considered on the facts and circumstances of each case. The Court can impose different conditions which may be necessary to ensure that the accused will be available for facing trial but it cannot be said that the accused will not be granted bail because of being a foreign national.”

Background

The petitioner had been arrested along with others in connection with allegations of human trafficking, with charges framed under Section 370 of the Indian Penal Code and Sections 14A and 14C of the Foreigners Act, 1946. The case was initiated after a police investigation led to the discovery of non-local women at the residence of the petitioner and co-accused individuals. Following the investigation, the petitioner was initially granted interim bail by the Judicial Magistrate, which was later made absolute.

However, during subsequent proceedings involving other co-accused persons, the Additional Sessions Judge, Budgam, rejected the bail applications of 14 co-accused individuals and, in the same order, suo motu cancelled the bail that had previously been granted to the petitioner. The court, without issuing any prior notice, remanded the petitioner and her co-accused into judicial custody, citing the seriousness of the charges.

The petitioner approached the High Court seeking reinstatement of her bail, contending that the cancellation was improper. She argued that the trial court acted without notice or sufficient cause, asserting that there was no new evidence or circumstances that warranted revoking her bail. Additionally, the petitioner maintained that she posed no flight risk, had been cooperating with the investigation, and her continued detention was unjustified.

In reviewing the case, the High Court emphasized that bail revocation requires strong and compelling reasons, and the trial court had failed to establish such reasons in its decision to cancel the petitioner's bail. The High Court observed that the petitioner's detention was not warranted in light of her personal circumstances, particularly given that she was a long-term resident in India, married to a local resident, and the mother of a minor child.

Justice Sharma further noted that the petitioner was already on bail, and there was no substantial risk that she would abscond or tamper with evidence.

The Court cited precedents, including Gurcharan Singh v. State (Delhi Administration), where the Supreme Court had held that in cases involving non-bailable offences, judicial discretion must take into account various factors such as the nature and gravity of the offence, the likelihood of the accused fleeing from justice, and the risk of tampering with witnesses or evidence. The High Court found that these concerns did not apply in the present case.

The Court also referred to Sanjay Chandra v. CBI, which clarified that “the object of bail is neither punitive nor preventative” and that bail is intended to ensure the presence of the accused during trial. The Court reiterated that the principle of presumption of innocence must be respected, and deprivation of liberty before conviction should only occur in necessary circumstances.

The High Court concluded by quashing the impugned order that had placed the petitioner in judicial custody. The petitioner was granted bail, subject to conditions designed to ensure her appearance at future hearings, including the submission of personal and surety bonds.

Case Title: Shagufta Bano V/S UT of J&K

Citation: 2024 LiveLaw (JKL) 265

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