Allahabad High Court flags issues faced in prosecution of foreign nationals, calls for international treaty

The Allahabad High Court recently asked the Union government to consider initiating a process towards creation of a treaty at the international level to address the issues being faced in prosecution of foreign nationals [Zong Hao Zhe @ Jon vs. State of UP].Justice Ajay Bhanot said that both the State as well as the Central government must keep in mind the emerging world order of globalisation that has thrown new challenges at the old laws and existing jurisprudence.The judge also said that some offences committed by foreign nationals have a bearing on national security and the economy and thus, there was a need for a broad legal framework to deal with such issues. .Therefore, the Court asked the Government of India to file a composite affidavit reflecting the stand of its various ministries on the possibility of having a policy or a legislation to cover the field.“The Union of India may also examine the possibility of initiating the process of creation of international instruments with the consensus amongst the comity of nations,” it added..The Court made the comments while hearing the cases of certain Chinese nationals facing prosecution in Uttar Pradesh for various offences.In particular, the Court flagged the issue of the foreign accused facing difficulty in producing a surety (a person who stands as guarantee for the accused on bail) in bail matters. It said the concept of sureties as envisaged under the Code of Criminal Procedure (CrPc) may be irrelevant in the cases of most foreign nationals as they may not be able to produce them since they do not have any roots in the country. “Foreign nationals do not have any roots in the country which is one of the basis for accepting sureties,” the Court said. .The Court also highlighted the lack of interpreters and consular access to assist the foreign nationals.“Counsellor access, providing of legal aid in eligible cases, communication with their families in their native countries are also requirements of processual fairness in criminal trials of foreign nations,” it said.Besides the issues faced by the foreign nationals, the Court also referred to the lack of legal safeguards to compel the appearance of foreign nationals who may escape India during bail.“These are factors which need examination while considering grant of bail to foreign nationals facing criminal trial in India,” the Court stressed..It added that neglection of such issues may even “create law free zones” for the “foreign offenders” as they may simply rely on the lack of legal instruments to escape the law and justice system in India.Observing that foreign nationals are not excluded from fair and equal treatment under the laws in India, the Court directed the trial courts to provide certified interpreters or translators to such accused persons. “The court may issue appropriate directions to the State Government,” the order stated..Considering the fact that all the accused persons were in jail with their personal liberties at stake, the Court directed the Union and State governments of India to ensure the highest urgency in the matter. It will hear the matter next on April 18.Advocates Abhas Sharma, Pradeep Kumar Mishra, Rajesh Kumar Sharma represented the accusedAdditional Solicitor General SP Singh and Central Government Counsel Vivek Kumar Singh appeared for the Union of India[Read Order]