The High Court of Jammu & Kashmir and Ladakh recently ruled that law does not authorize or permit any discrimination between a foreign national and Indian national when it comes to grant of bail (Shagufta Bano V/s UT of J&K)
Justice Sindhu Sharma explained that 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 he or she is a foreign national.
"It is well settled that 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," the Court held.
The High Court was hearing a plea by one Shugufta Bano challenging an order passed the additional sessions judge at Budgam rejecting her bail plea after she was booked for her alleged involvement in offences related to human trafficking and sexual exploitation.
Shugufta, originally a resident of Myanmar, was married to one Bashir Ahmed Wani for the past 13 years without valid documents in Kashmir's Budgam. She was arrested by the police for the commission of offences under Section 370 of IPC and Section 14A and 14C of 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.
Shugufta was initially granted interim bail by the Judicial Magistrate, which was later made absolute.
However, the additional sessions judge rejected the bail application of 14 co-accused and in the same order, suo motu cancelled the bail granted to Shugufta. The Court, without issuing any prior notice, remanded the petitioner and her co-accused into judicial custody, citing the seriousness of the charges.
Feeling aggrieved, she moved the High Court for bail.
It was submitted that the sessions court improperly exercised its power without issuing any prior notice and cancelled her bail and remanded her to judicial custody.
The Counsel for the Union Territory of Jammu and Kashmir argued that the petitioner was originally a resident of Burma and has been married to Bashir Ahmad Wani for the past 13 years without valid documents.
Both are involved with others for bringing women from Burma without proper documentation for prostitution in exchange of large amount of money.
After hearing arguments on cancellation of bail by the trial Court, the High Court observed,
"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 accused cannot be treated differently merely because she is a foreign national, the Court underscored.
Accordingly, the plea was allowed and the trial Court's order was set aside.
Advocates Majid Bashir and Tawfiq Hussain Khawaja appeared for the petitioner.
Government Advocate Faheem Shah represented the Union Territory.
[Read Order]