High Court of Delhi was dealing with the petition filed under Section 445 read with Section 482 Cr.P.C. for modification of order dated 15.12.2021 in Criminal Bail Application and for direction to release the applicant on furnishing personal bond.
Petitioner’s Contention:
Learned counsel for the petitioner submitted that since the petitioner could not arrange even the surety bonds at reduced amount and continued to remain in custody, the order was further modified vide order dated 15.12.2021, directing the petitioner to be released on her furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of learned trial court.
It was submitted that the case is at the initial stage of prosecution and the petitioner is in custody since about 02 (two) years and 08 (eight) months. Further, the petitioner is unable to discharge her obligation of furnishing even reduced surety bond being a foreign national and has not been able to avail the benefit of bail despite repeated modifications by this Court.
Respondent’s Contention:
Learned Counsel for the respondent submitted that the possibility of petitioner fleeing the course of justice cannot be ruled out, in case she is released on furnishing of cash in lieu of surety.
HC’s Observations:
After hearing both the sides Court stated that it would be a negation of the principle of rule of law and violative of constitutional mandate and principles of human rights in case benefit of Section 445 Cr.P.C. is denied to a foreign national merely on the ground that a foreign national is likely to escape, if released on bail. This would lead to incarceration of accused for an unlimited period till conclusion of trial even despite being granted the discretion of bail by the courts.
HC stated that a mere apprehension expressed by the prosecution that the accused may flee the course of justice, cannot be the sole determinative factor for denying benefit of Section 445 Cr.P.C. without consideration of other circumstances and balancing factors in this regard. This apprehension may still theoretically persist even in a case where surety bond is furnished but the liability of surety is only to the extent of amount mentioned in the surety bond.
HC relied upon the case of Gudikanti Narasimhulu and Others Vs. Public Prosecutor where it was held that “deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.”
HC Held:
After evaluating submissions made by both the parties the Court held that “the petitioner, who is a woman and a foreign national, cannot be forced to undergo incarceration till the conclusion of trial merely because she is unable to furnish a local surety bond. The case does not involve the strict rigours/embargo under Section 37 of NDPS Act. For the reasons detailed above and considering the facts and circumstances of the case as well as the fact that the petitioner is a woman/foreign national, who has been unable to avail the benefit of order on bail, she be released on bail on furnishing personal bond.”
Case Title: Nastor Farirai Ziso v. NCB
Bench: Hon'ble Mr. Justice Anoop Kumar Mendiratta
Citation: BAIL APPLN. 1960/2020
Decided on: 11th April 2022
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