Bail Cannot Be Denied Merely Because Accused Is A Foreign National: J&K&L High Court

The Jammu & Kashmir and Ladakh High Court recently ruled that foreign nationals cannot be discriminated against when it comes to the grant of bail, emphasizing that the law treats foreign nationals and Indian citizens equally in this regard.

The Single-Judge Bench of Justice Sindhu Sharma held that the courts can impose appropriate conditions to ensure the accused’s presence at trial but cannot deny bail solely on the grounds of nationality.

"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," the Bench observed. 

The Court was hearing a plea by Shagufta Bano, a resident of Myanmar, who had been arrested in Budgam, Kashmir, for alleged involvement in human trafficking and sexual exploitation. Bano had been charged under Section 370 of the Indian Penal Code (IPC) and Sections 14A and 14C of the Foreigners Act, 1946. She had been living in Kashmir for 13 years, married to Bashir Ahmed Wani, without valid documentation.

The Single-Judge clarified that the bail decision must be based on the specific facts and circumstances of each case, and nationality should not be a determining factor in denying bail. "It is well settled that law does not authorize or permit any discrimination between a foreign national and an Indian national in the matter of granting bail," the court held, stressing that any conditions imposed should be aimed at ensuring the accused remains available for trial.

Shagufta Bano had initially been granted interim bail by a Judicial Magistrate, which was later made absolute. However, the Additional Sessions Judge at Budgam rejected the bail pleas of 14 co-accused individuals and, without issuing prior notice, also cancelled Bano's bail suo motu. The Bench cited the seriousness of the charges against her, ordering her remand to judicial custody.

Bano subsequently approached the High Court, arguing that the sessions court had improperly exercised its power by cancelling her bail without issuing prior notice. Her counsel submitted that the cancellation of bail was unjust, particularly in light of her cooperation with the investigation.

The prosecution, representing the Union Territory of Jammu & Kashmir, argued that Bano had been residing in Kashmir without valid documents and was involved in bringing women from Burma for prostitution, allegedly in exchange for large sums of money. The case had been initiated after a police investigation discovered non-local women at Bano’s residence.

After considering the arguments, the Court underscored the legal principle that bail, once granted, can only be revoked under certain conditions, and that such a decision requires strong and compelling reasons. It criticized the Trial Court’s action, emphasizing that it cannot discriminate against the accused based on her nationality.

"Once a Court grants bail to someone, it can take it back under certain circumstances, but to do so, there must be strong and compelling reasons for the same," the Court said.

The Bench reiterated that the mere fact that Bano is a foreign national cannot justify harsher treatment in the judicial process. It ruled that the additional sessions judge had overstepped by cancelling Bano’s bail without proper cause or notice.

The Court noted, "..in view the fact that the petitioner is a woman having two minor child and a small daughter, aged one and a half years, who are dependent on her and require her care and attention, and considering that her incarceration has deprived her of the opportunity to provide such care, coupled with the fact that she was already on bail before it was cancelled."

In light of the above, the Court allowed Bano’s plea, setting aside the trial court's order. "The petitioner is enlarged on bail in the aforesaid case upon furnishing a personal bond and two sureties in the amount of ₹2,00,000/- each, one of the sureties shall be the petitioner’s husband, i.e., Bashir Ahmad Wani, and another one to the satisfaction of the trial Court. The personal bond to be executed and furnished before Superintendent, Central Jail, Srinagar, whereas two surety bonds are to be executed and furnished before the Court of the Additional Sessions Judge, Budgam," the Court ordered. 

Cause Title: Shagufta Bano v. UT of J&K 

Appearance:-

Petitioner: Advocates Majid Bashir, Tawfiq Hussain Khawaja

Respondent: Government Advocate Faheem Shah

Click here to read/download the Judgment