Justice Purnendu Singh quashes termination order for violating principle of natural justice

In Smt. Archana Kumari vs. The State of Bihar through its Secretary Education Department, Govt. of Bihar, New Secretariat, Patna & Ors. (2025), Justice Purnendu Singh delivered a 6-page long judgement dated June 16, 2025 wherein, he concluded:"I also find that there has been gross violation of principle of natural justice. It is admitted that before termination order dated 15.11.2022 has been passed, no opportunity has been given to the petitioner. On this ground also, the order contained in Memo No.669 dated 15.11.2022 is fit to be set aside and quashed...." There were six other respondents including The Director Primary Education, Education Department, Govt. of Bihar, Patna, District Magistrate, Vaishali, District Education Officer, Vaishali, District Programme Officer, (Establishment), Vaishali, Block Development Officer, Bhagwanpur, Vaishali and Block Education Officer, Bhagwanpur, Vaishali.

The petitioner had prayed quashing "the memo no.669 dated 15.11.2022 issued by the Executive Officer cum Block Panchayati Raj Officer, Panchayat Samiti, Bhagwanpur (Vaishali) whereby and whereunder the petitioner was terminated from service with immediate effect on the ground she was working on the basis of Madhyama Visharad certificate issued from the Hindi Sahitya Sammelo Allahabad. She also sought direction from the Court to the respondent authority to reinstate the petitioner in service with all consequential benefits. 

According to the State that the main issue involved in the present writ petition was the validity of the Madhmya Visharad degree obtained by the petitioner from Hindi Sahitaya Sammelan, Allahabad.  

Justice Singh recorded that there was violation of Section 14 of Bihar State School Teachers and Employees Disputes Redressal Rules, 2015 by District Education Officer, Vaishali who acted in a mechanical manner.

Justice P.N. Bhagwati has defined it as "fair play in action". The right to hearing encompasses the following concepts within its ambit:

1. Right to notice
2. Right to present case and evidence
3. Right to rebut adverse evidence
1. Right to cross-examination
2. Right to legal representation
4. Disclosure of evidence to the party
5. Showing the report of enquiry to the other party
6. Reasoned decisions or speaking orders

Therefore, pre-decisional hearing is one of the standard and essential rules of Audi Alteram Partem. But, it would be wrong to disregard the status of the post-decisional hearing. Post-decisional hearing is also a justiciable rule as it affords the hearing opportunity to the aggrieved person and is a better option than no hearing (I.P. MASSEY, ADMINISTRATIVE LAW (Eastern Book Company 2022).. However, it is pertinent to note that a post-decisional hearing must be considered an exception rather than a rule.

 

Patna High Court quashes "local bailors" condition for Pakistani citizen for bail of Khadija Noor

In Khadija Noor vs. The State of Bihar (2025), on March 3, 2025, Justice Chandra Shekhar Jha of Patna High Court set aside and quashed qua condition imposed as above qua local bailors through order dated October 18, 2022 by Additional  Sessions Judge XII, Sitamarhi. The  criminal miscellaneous application was filed for quashing of one of the condition of bail, as imposed through order dated October 18, 2022, arising out of a case registered for the offences under Section 467, 468, 471, 420, 34 of the IPC and 14 of Foreigners Act, 2004.

The trial court had imposed a condition that “both the bailors" should be local resident of Sitamarhi”. The petitioner admittedly a Pakistani citizen and, has been in custody since October 8, 2022, even after granting the bail for want of local bailors.  

Y.C. Verma, senior counsel for the petitioner submitted that the petitioner entered into the territory of India to solemnize her marriage with one Sayed Hyder, a resident of Hyderabad, Andhra Pradesh. While entering in the Indian territory through Indo-Nepal border, she was apprehended and booked under provisions of law. He submitted that Sayed Hyder who is proposed “groom” of petitioner is ready to stand as a bailor for the petitioner and his one brother or other close family members are also ready to stand as another bailor for petitioner, who are also the resident of Hyderabad and are Indian citizen but due to above condition they are not in position to stand as bailors for petitioner. He submitted that certain fundamental rights are even available to foreign citizens and even after granting bail keeping petitioner in jail since last more than 2 years is amounting to violation of her fundamental rights just in want of local bailors. It was pointed out that it is a classical case of territorial and geographical biasness when a citizen of this country residing in Hyderabad is ready to stand as sureties and bailors for this petitioner. 

In support of his submission, the senior counsel took shelter of para no. 33 of the legal report of Supreme Court as available through Moti Ram vs. State of Madhya Pradesh reported in (1978) 4SCC 47. He relied upon legal report of Supreme Court as available through Girish Gandhi Vs State of Uttar Pradesh and Ors. reported in (2024) 8 SCR 561 where he mainly relied upon para 24 and 26 of the case. 

The petitioner after granting bail remained in custody for more than 2 years in want of “local bailors” despite of the availability of bailors from other parts of this country trial court/ concerned court is directed to release the petitioner on bail where one of the bailor shall be Sayed Hyder frim Hyderabad, Andhra Pradesh and the other bailor shall be the brother of Sayed Hyder in terms of para 11 of the petition, with following conditions:-

(i) Both the bailors are directed to surrender their passport in original before the learned trial court, if they had or to make statement on affidavit that they are not the holder of the Indian Passport, in case, they don’t have it.

(ii)  trial court must be satisfied with the identity of both bailors as aforesaid through their Adhaar Card, PAN Card and also voter card before accepting the bail bond.

(iii) D.G.P. of the State be also informed to direct local SHO to remain vigilant, where petitioner and bailors must report to local police once in a month during pendency of the trial.

(iv) Sayed Hyder, must undertake on affidavit that during pendency of trial, he must keep petitioner with all her dignity, safety and care with him.

(v) Sayed Hyder is directed to ensure the presence of petitioner in the Court as and when required by the court during the pendency of the trial.

(vi) In case of any illness of petitioner and also in case of any unforeseen event, Sayed Hyder must report to local SHO, immediately and also the ld. trial court.

(vii) Considering the fact as petitioner is a Pakistani citizen trial court is directed to conclude the trial at its  earliest, preferably within one year.

(viii) If the occasion arises, trial court upon acquittal or conviction, after completion of sentence (subject to any order of appellate court), must take immediate steps, to deport petitioner from country for Pakistan, in accordance with law. 

Also read: Sitamarhi Trial Court seeking "local bailor" from a Pakistani citizen for bail, Patna High Court to hear case of Khadija Noor

Supreme Court stays order of Lokpal of India to bring High Court's judges within ambit of Lokpal and Lokayuktas Act

In the matter of IN RE : ORDER DATED 27/01/2025 PASSED BY LOKPAL OF INDIA AND ANCILLIARY ISSUES, a 3-judge bench of Supreme Court issued notice to the Union of India, Registrar, Lokpal of India and the complainant, returnable on March 18, 2025 at 10.30 a.m. The Registrar, Lokpal has been directed to mask the identity of the complainant and serve notice upon the complainant through the Registrar (Judicial) of the High Court, where the complainant resides. The Court's order reads: "In the meantime there shall be stay of the order dated 27.01.2025 passed by the Lokpal of India in Complaint No.05/2025. We injunct the complainant from disclosing the name of the Hon'ble Judge against whom he has filed the complaint. The complainant is further directed to keep the complaint strictly confidential. Shri Kapil Sibal and Shri B.H. Marlapalle, learned senior counsel, have graciously offered to assist the Court, since the matter is of a great significance concerning the independence of the judiciary....Tushar Mehta, learned Solicitor General of India, waives notice for the Union of India. Written submission, if any, may be filed in the meantime."

The Lokpal of India had passed an order on January 27, 2025 after examining two complaints filed by the same complainant against a sitting Additional Judge of a High Court. The complainant alleged that the named judge had influenced the concerned Additional District Judge of a particular State and a Judge of the same High Court who had to deal with the suit filed against the complainant by a private company, to favour that company. It is alleged that the private company was earlier client of the named High Court Judge, while he was practicing as an advocate at the Bar. 

The order of the Lokpal reads:"Recently, we had an occasion to examine a complaint against the previous Chief Justice of India. After examining the relevant provisions of the Lokpal and Lokayuktas Act. 2013 (for short, the Act of 2013), it was concluded vide order dated 03.01.2025 in Complaint No 255/2024 that the judges of the Supreme Court including the Chief Justice of India even though public servants in terms of Section 2(c) of the Prevention of Corruption Act, 1988 (for short, Act of 1988), are not amenable to the jurisdiction of the Lokpal. Because, they do not come within the sweep of the expression public servant predicated in Section 2(1)(o) read with Section 14 of the Act of 2013. In that, the Supreme Court is a body or adjudicatory authority established in terms of Article 124 of the Constitution of India; and not under an Act of Parliament as such. It was clarified in that decision that the issue of applicability of the stated principle to other courts established by an Act of Parliament was not being discussed."

It observed: "unlike the Supreme Court of India, the High Courts for the concerned State during the pre-constitution period or so to say British India, had been established under the Indian High Courts Act, 1861 enacted by the British Parliament. This Act authorised creation of High Courts in British India, especially in Calcutta, Madras and Bombay through Letters Patent issued by the British Monarch. The Government of India Act. 1935, also passed by the British Parliament, restructured the High Courts which were already functioning in British India regime; and recognized that the High Courts were established by virtue of various Letters Patents and Regulating Act issued by the British Monarch. Pertinently, the Constitution of India. vide Article 214, intrinsically recognises the existence of all the High Courts established under the Act of 1861, the Act of 1935 and the Letters Patents issued by the British Monarch; and restates that there shall be a High Court for each State. In contrast. Article 124 is for "Establishment" and Constitution of the Supreme Court of India, as it was not in existence hitherto. After the Constitution of India came into being, the High Courts established during the British India period, under the Act of 1861 or the Act of 1935 and Letters Patent issued by the British Monarch, continued to function as the High Court of the concerned State enlisted in the First Schedule of the Constitution. Notably, the Act of the Dominion Legislature has been regarded as a Central Act. means an Act of Parliament in terms of Section 3 (7) of the General Clauses Act. 1897. 5. In due course of time, however, the States so formed and specified in the First Schedule of the Constitution. had to be reorganized. Because of reorganization of the States... "

Taking note of the legislative history, the Lokpal of India inferred that the High Court of being an "authority" empowered by law to discharge adjudicatory functions, has been established by an Act of Parliament as a "body" of Judges for that State. Thus. the High Court would qualify the description of at least two juristic entities 'by whatever name called''. out of the eight mentioned in Section 14(1)(f) of the Act of 2013 established by an Act of Parliament. which are mutually exclusive descriptions owing to use of expression "or" in that provision. It will be too naive to argue that a Judge of a High Court will not come within the ambit of expression "any person" in clause (f) of Section 14(1) of the Act of 2013. The expression "Judge" has always been understood as not only every person who is officially designated as a Judge, but also every person. The definition of Judge in Section 19 of the Indian Penal Code (IPC) as also the enactment of Anti-Corruption Laws (Amendment) Act. 1964 (Act 40 of 1964) and re-enacted Section 21 with the third category of public servant, including sub-clause (iv) of clause (c) of Section 2 of the Act of 1988 — defining expression public servant to mean any Judge. 

The Lokpal of India drew on what is stated on paragraph 35 of the majority view exposited by Justice Shetty in the case of K.Veeraswamy vs. Union of India, (1991) 3 SCC 655. it is plainly expounded that a Judge of the superior court cannot therefore be excluded from the definition of public servant and would squarely fall within the purview of the Prevention of Corruption Act,1947 (analogous to Act of 1988). Applying the underlying principle and the logic as given in this reported decision, the expression 'any person in Section 14(1)(f) of the Act of 2013 must include a Judge of the High Court established by an Act of Parliament as well. 

It observed that a fortiori, the judges of the High Court would come within the sweep of Section 14 of the Act of 2013 read with Section 2(1)(o) thereof. "We say so also because. the definition of public servant in Section 2(1)(o) of the Act of 2013 explicitly excepts only one category of officials or public servants from the jurisdiction of the Lokpal from amongst the species mentioned in Section 14 of the Act of 2013, in respect of whom the jurisdiction is exercisable by any Court or other authority under the Army Act, 1950, the Airforce Act, 1950, the Navy Act, 1957 and the Coast Guard Act,1978. Concededly; the Act of 2013 does not provide for such explicit exception for the judges of the Court established by an Act of Parliament, including Judges of the Constitutional and other Courts established by an Act of Parliament — who must come within the expanse sweep of sub-clause (f) of sub-section (1) of Section 14 of the stated Act." 

The Constitution Bench of the Supreme Court of India in K. Veeraswamy case through its majority opinion ordains that to adequately protect a judge from frivolous prosecution and unnecessary harassment the President of India will consult the Chief Justice of India, who will consider all the material placed before him, tender his advice for giving sanction to launch prosecution or for filing FIR against the judge concerned after being satisfied in the matter, as opined by Justice B.C. Ray in paragraph 12 of the reported decision, while agreeing with the opinion of Justice K. Jagannatha Shetty for himself and Justice M.N.Venkatachaliah (as His Lordship then was). The two Judges, in paragraph 60 of the same reported Judgement, had observed as follows: 

"We therefore, direct that no criminal case shall be registered under Section 154 CrPC against a judge of the High Court, Chief Justice of a High Court or the judge of the Supreme Court unless the Chief Justice of India is consulted in the matter."

The thrust of the exposition of the majority view, is that no criminal case shall be "registered" against a judge of the High Court, Chief Justice of High Court or judge of the Supreme Court, unless the Chief Justice of India is consulted in the matter. 

The Lokpal's order reads: "We are conscious of the fact that a complaint before the Lokpal cannot be stricto sensu equated with a criminal case being registered under Section 154 of CrPC or the corresponding provision in the Bharatiya Nagarik Suraksha Sanhita 2023 (for short. BNSS). However, considering the scheme of Section 20 of the Act of 2013 on receipt of a complaint and before the Lokpal decides to proceed further by ordering a preliminary inquiry by its inquiry wing or any nominated agency or investigation, it is required to examine whether there exists a prima facie case to proceed further. Such process inevitably involves a probe into the allegations against a Judge of the High Court. For effectuating preliminary inquiry, assistance of specified agency has to be taken who in turn is bestowed with an authority under Section 20 read with Section 27 of the Act of 2013, to obtain comments of the public servant and of the Competent Authority including do questioning of third persons and of official records of the courts, if the allegation against the public servant is concerning any judicial process. Further, this inquiry is and would be a prelude to issue of direction to the investigating agency to register a criminal case against the named public servant and to investigate the same under supervision of Lokpal. Having regard to the consequences emanating from the directions to be issued by the Lokpal under Section 20 of the Act coupled with the dictum in K. Veeraswami's case adverted hitherto, the appropriate course, Ex abundanti cautela, is to abide by the direction given by the majority view of the Constitution Bench of the Supreme Court and to approach the Hon'ble Chief Justice of India as a pre-condition or quintessence to the exercise of jurisdiction under Section 20 of the Act of 2013."

It was conscious of the fact that "the allegation in this complaint also involves the named Additional District Judge. who is working in a court or body of judges which may have been established by an Act of the State Legislature.  He may be a public servant within the meaning of Prevention of Corruption Act, 1988, but not directly amenable to the jurisdiction of the Lokpal-as not being public servant within the meaning of Section 2(1)(o) read with Section 14 of the Act of 2013. However, eventually if an inquiry is to be ordered against the judge of the High Court. and in that inquiry any incriminatory material emerges against the named Additional District Judge. he can be prosecuted in this very action as being involved in an act of abetting. bribe giving or bribe taking or conspiracy of any allegation of corruption under the 1988 Act, by virtue of sub-section (3) of Section 14 of the Act of 2013.  A priori. we deem it appropriate to forward the subject complaints and relevant materials received in the Registry in these two matters. to the office of the Hon.ble Chief Justice of India for his kind consideration. Awaiting the guidance of the Hon'ble the Chief Justice of India, consideration of these complaints, for the time being, is deferred until four weeks from today, keeping in mind the statutory time frame to dispose of the complaint in terms of Section 20 (4) of the Act of 2013."

The order concludes: "We make it amply clear that by this order we have decided a singular issue finally - as to whether the Judges of the High Court established by an Act of Parliament come within the ambit of Section 14 of the Act of 2013, in the affirmative. No more and no less. In that, we have not looked into or examined the merits of the allegations at all. The Registry is directed to issue/upload copy of this order by redacting the name of the High Court and of the State including revelation of any description suggestive of giving identity of the person involved, where-ever it occurs in this order, to maintain confidentiality as mandated by the Act of 2013 and the Rules framed thereunder. 

The order was passed Justice A.M. Khanwilkar, Chairperson, Lokpal and Members of Lokpal Justices L Narayana Swamy, Sanjay Yadav, Ritu Raj Awasthi and Sushil Chandra, Pankaj Kumar and Ajay Tirkey. 

Sitamarhi Trial Court seeking "local bailor" from a Pakistani citizen for bail, Patna High Court to hear case of Khadija Noor

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.)