China's Law Prohibits Exit In Such Cases, Indian Laws Can't Be Made Flexible: Karnataka HC Disallows Return Of Chinese Nat'l Accused In 'Power Bank Scam'

A single judge bench of Justice M Nagaprasanna dismissed the petition filed by HU Xiaolin while doing so took note that under the Chinese Criminal Code once a person becomes an accused, he or she will never be permitted to move out of the Chinese shores till the trial gets completed.

It said, “If laws in China prohibit such exit of a foreign national under the aforesaid circumstances, laws of India cannot be made flexible on any score whatsoever, as it is a case of a Chinese national who is involved in multiple crimes.”

It added that if the petitioner is permitted to move out of the nation, despite a plethora of crimes pending against her, it would become impossible to conclude the trial, as it would be permitting her to flee justice.

As per the prosecution case the accused landed in India in 2017 and married to one Anas Ahmed, an Indian national. A complaint came to be registered by M/s.Razorpay Software Pvt Ltd against the husband of the petitioner, later she also came to be arrested.

Subsequently, the session court granted bail to the accused imposing certain conditions. One of the conditions was that she shall not leave the jurisdiction of the Court without prior permission. The accused then sought modification of bail conditions on the ground that the father of the petitioner who is about 80 years old is undergoing medical treatment in China and is bedridden, which was rejected.

She argued that the High Court of Kerala, where similar cases are registered against her, has permitted the petitioner to go to China and come back. The court should allow her travel, failing which she will lose the opportunity to be with her father in his last days.

The prosecution opposed the plea contending that seven crimes were registered against the petitioner and her husband in a scam which is popularly known as 'Power Bank scam'. It was stated that the petitioner should not be permitted to escape the clutches of law, as once she goes to China, it would be impossible to get her back.

Findings:

The bench noted that during an earlier round of litigation, a similar prayer made to modify the bail conditions came to be rejected by the sessions court and coordinate bench of the High Court.

Then it said “The first attempt to get the bail conditions modified at the hands of the coordinate Bench thus, fails. During the pendency of the petition before the coordinate Bench, the petitioner prefers another application seeking relaxation of bail conditions, which is again rejected in terms of the order impugned dated 04-09-2023. A new reason is now projected that the father of the petitioner is bedridden and she has to travel to China to be with her father for at least two months. I decline to accede to the request.”

It was observed that the crimes were so intricate that the investigation was still on and the Police had not yet been able to file the charge sheet, as it was a scam that went beyond the jurisdiction of a particular State.

The court held “Crimes are registered both in Kerala and Karnataka and if the petitioner is allowed to go out of the shores of the nation for the purpose that is projected, this Court would be permitting the petitioner to flee investigation or trial.”

Court also referred to the Exit and Entry Administration Law of the People's Republic of China wherein those who are barred from leaving China are defendants in criminal cases or criminal suspects and persons who are notified by a People's Court, or persons who have committed acts in violation of Chinese law.

Thus the court said, “If laws in China prohibit such exit of a foreign national under the aforesaid circumstances, laws of India cannot be made flexible on any score whatsoever, as it is a case of a Chinese national who is involved in multiple crimes."

Appearance: Advocate Suhaib Fazeel Madar, for Petitioner.

HCGP Harish Ganapathi, for R1

Deputy Solicitor General of India H Shanthi Bhushan, for R3.

Citation No: 2024 LiveLaw (Kar) 308

Case Title: Hu Xiaolin AND State of Karnataka & Others

Case No: CRIMINAL PETITION No.455 OF 2024

Click Here To Read/Download Order