No person shall be deprived of his life or personal liberty except according to procedure established by law.
-Article 21, Constitution of India
A criminal miscellaneous case Khadija Noor vs. The State of Bihar registered on March 7, 2024 came up for hearing on February 11, 2025 before Justice Chandra Shekhar Jha of Patna High Court in Court No. 108. The case arose out of a case filed in Sursand Thana, Sitamarhi district in 2022. The petitioner is the daughter of Md. Ishaoak, resident of Abdullahpur, Faisalabad, Pakistan. Yogesh Chandra Verma, senior advocate submitted on behalf of the petitioner that the requirement of "local surety" for the grant of bail is an onerous condition on a foreign national. The case is listed for further hearing on March 3, 2025.
Criminal Miscellaneous application has been filed for grant of Regular bail to the petitioner, who has been made accused in connection for the offences under Section 467/468/471/420/34 of the Indian Penal Code and 14 Foreigners Act 2004. The petitioner has no criminal antecedent.
The prosecution story as per the FIR is that on August 8, 2022 at around 1 P.M. the informant namely Bishan Das, Company Commander, SSB, Sitamarhi, while on duty at the India Nepal border found that 2 Persons (one male and one female) were coming from Nepal and entering into Indian territory. While entering into the Indian territory the female was stopped by the lady officer on duty and questioned but she could not answer anything about her identity. When her Aadhaar Number 646899362534 and the name Arzoo Baghdayia was checked then it was found that her Aadhaar Number was fake. On interrogation, it emerged that she is a Pakistani citizen. The person who was accompanying her was Jeevan Kumar Sah, a Nepali citizen. The petitioner is languishing in jail since August 8, 2022. The petitioner deserves to be enlarged on regular bail by relaxing the condition imposed by the Trial Court on October 18, 2022 in Sursand. The petitioner is prepared to furnish sufficient bail bond and further prepared to abide by the terms and conditions imposed by the Court.
The petitioner had preferred his regular bail application before the court of District and Sessions Judge, Sitamarhi in Sursand which was heard and by order dated October 18, 2022 passed by Sessions Judge, Sitamarhi with a condition that "Both the Bailor should be local resident" which is quite impossible for the petitioner to fulfill this condition. The petitioner is a resident of Pakistan and has no known person in Sitamarhi. It wad prayed that the petitioner be enlarged on regular bail by relaxing the condition imposed by the Court after furnishing sufficient bail bond.
In Vaman Narain Ghiya v. State of Rajasthan (2008), the Supreme Court held that the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and a presumption of innocence in favour of the alleged criminal and an accused is not detained in custody with the object of punishing him on the assumption of his guilt.
Prior to the hearing on February 11, on May 7, 2024, High Court's Justice Rudra Prakash Mishra's order had recorded:" the petitioner seeks permission of the Court to convert the present application into one under Section 482 of the Code of Criminal Procedure. Permission is accorded."
On October 22, 2024, High Court's Justice Chandra Prakash Singh passed an order saying, "the petitioner is permitted to make informant as O.P. No. 2 in course of the day. Learned counsel for the petitioner is directed to take steps for fresh service of notice upon the O.P. No. 2 through the Superintendent of Police, Sitamarhi, for which requisites under Speed Post with A/D, must be filed within a period of one week. The Superintendent of Police, Sitamarhi, is directed to get it served on the O.P. No. 2 who is the informant of Sursand P.S. Case No. 401 of 2022 and send a report to this Court within a period of one week from the date of its receipt. Put up this matter after appearance of the O.P. No. 2 or on receipt of service report, whichever is earlier, under appropriate heading." Opposite Party No. 2 is Bishan Das, Battalion Commander, SSB Bhithamore, Sursand, Sitamarhi.
Notably, the petitioner is from Faisalabad which was conquered on February 22, 1849 by virtue of victory of British East India Company in Punjab. Faisalabad came into the control of the British Empire. Until 1977, Faisalabad was formerly known as Lyallpur. In 1890, it was named after Sir James Broadwood Lyall, the British lieutenant governor of the Punjab. It became headquarters of the Lower Chenab colony and in 1898 was incorporated as a municipality. In 1904, Lyallpur was given the status of district. In September 1977, the city of Lyallpur was renamed Faisalabad. Faisalabad was always part of undivided India.
The FIR and seizure list reveals no incriminating material from the conscious possession of the petitioner. No objectionable material has been recovered from the conscious possession of the petitioner from Faisalabad.
In Kasparek Petr vs. The State of Bihar & Ors since the petitioner has been found to be without a Visa he could be deported to his own country but he cannot be detained in a prison. The order reads: "the Embassy of the Czech Republic in New Delhi is directed to take charge of the petitioner immediately within 7 days from the date of communication of this order to the petitioner and the petitioner shall be deported to his Country with the help of the Embassy of his Country within 15 days thereafter. During this period the petitioner will not be allowed to roam around outside the Embassy of the Czech Republic. Let a server copy of this order be sent to the Embassy of the Czech Republic through the learned Advocate for the petitioner for information and necessary action at the earliest." The order was passed on June 21, 2024.
This decision in Kasparek Petr case was quoted with approval in Agastin Chinet Nevot vs State of Bihar (2024), Patna High Court granted bail on July 20, 2024 to a petitioner from Nigeria. In his order Justice Sandeep Kumar noted that the petitioner was a monk associated with ISKCON, allowed the bail application considering petitioner’s submission that if he was granted bail, then he might be directed to stay in ISKCON Patna, and co-operate in the trial. The petitioner was the resident of Janakpur Dham, Vihar Kund, Hanuman Mandir, Nepal, was voluntarily serving as a ‘monk’ and was a bona fide member of International Society for Krishna Consciousness (ISKCON). The Court directed that after the grant of bail, petitioner would stay in ISKCON, Patna and till the conclusion of the trial, the President of ISKCON, Patna would take responsibility for the stay and appearance of petitioner in Patna ISKCON and the original passport of petitioner shall be deposited in the Trial Court. The Court accepted petitioner’s request for transfer of the case from the District Judge, Sitamarhi to the District Judge, Patna.
In Moti Ram vs. The State of Madhya Pradesh (1978), Supreme Court's division bench of Justices V. R. Krishnaiyer and D. A. Desai held:"Bail covers release on one's own bond with or without sureties, as the legal literature, Indian and Anglo-American on bail jurisprudence lends countenance and the need for liberal interpretation in areas of social justice individual freedom and indigent's rights justifies. When sureties should be demanded and what sum should be insisted on are dependent on variables. [344 G, 347 C] A semantic smog overlays the provisions of bail in the Code and prisoners' rights, when cast in ambiguous language become precarious. [345 C] 'Bail' in s. 436 of the Criminal Procedure Code suggests 'with or without sureties. And, 'bail bond` in s. 436(2) covers own bond. [345 E] 'Bail' in s. 437 (2) suggests release, the accent being on undertaking to appear. when directed, not on the production of sureties. But s. 137(2) distinguishes between bail and bond, without sureties. [345 F-G] Section 445 suggests, especially read with the marginal note that deposit of money will do duty for bond 'with or without sureties'. [345 G] Superficially viewed, s. 441 (1) uses the words 'bail' and 'own bond' as antithetical, if the reading is liberal. Incisively understood, Section 441(1) provides for both the bond of the accused and the undertaking of the surety being conditioned in the manner mentioned in the sub-section. To read "ail" as including only cases of release with sureties will stultify the sub-section, for then, an accused released on his own bond without bail, i.e. surety, cannot be conditioned to attend at the appointed place. Section 441(2) uses the word 'bail' to include 'own bond' loosely as meaning one or the other or both. Moreover, an accused, in judicial custody, actual or potential, may be released by the Court to further the ends of justice and nothing in s 441(1) compels a contrary meaning. S. 441(2) and (3) use the word 'bail' generically because the expression is intended to cover bond with or without sureties; [345 H, 346 A-C] When the Court of appeal as per the import of s. '389(1) may release a convict on his own bond without sureties, surely, it cannot be that an undertrial is worse off than a convict or that the power of the Court to release increases when the guilt is established. It is not the Court's status but the applicant guilt status that is germane. That a guilty man may claim judicial liberation pro tempore without sureties while an undertrial cannot, is a reductio ad absurdum. [346 D-E]"
Moti Ram case decision which authoritatively dealt with bail jurisprudence-Enlargement on bail with or without sureties-Scope of Ss. 440(1), 441, 445 read with s. 389(1) of the CrPC is germane for the Khadija Noor's case.
In Sartori Livio vs. The State (2005), Delhi High Court's Justice Badar Durrez Ahmed passed an judgement on February 22, 2005 wherein he cited portion of High Court's decision dated July 31, 2000 in Nasimjon Komlov v. Customs in CRLM (M) No. 2038/2000 which reads:"It would be a shame if courts are going to keep persons incarcerated merely because they are of foreign origin even though prima facie no case is made out against them. This would be a negation of the valued principles of rule of law and violative of the constitutional mandate and principles of human rights." The decision in Sartori Livio case has been cited with approval in High Court's decision dated April 20, 2021 in Nastor Farirai Ziso vs. NCB (2021) by Rajnish Bhatnagar. These decisions are relevant for the Khadija Noor's case as well.
Dr. Gopal Krishna
The author is a lawyer and a researcher of philosophy and law. His current work is focused on the philosophy of digital totalitarianism and the monetisation of nature. He has appeared before the Supreme Court's Committees, Parliamentary Committees of Europe, Germany and India and UN agencies on the subject of national and international legislation. He is the co-founder of the East India Research Council (EIRC). He is the convener of the Citizens Forum for Civil Liberties (CFCL) which has been campaigning for freedom from UID/Aadhaar/NPR and DNA profiling through criminal identification procedures since 2010. He had appeared before the Parliamentary Standing Committee on Finance that questioned and trashed the biometric identification of Indians through UID/Aadhaar Number. He is an ex-Fellow, Berlin-based International Research Group on Authoritarianism and Counter Strategies (IRGAC). He is also the editor of www.toxicswatch.org.)
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