Allahabad High Court
Uzobude Evans E. vs State Of U.P. on 5 April, 2019
Bench: Vivek Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reseved on :- 7.03.2019
Delivered on :- 05.04.2019
Court No. - 69
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23464 of 2017
Applicant :- Uzobude Evans E.
Opposite Party :- State Of U.P.
Counsel for Applicant :- Vidit Narayan Mishra,Pravin Kumar Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Singh,J.
1. Heard learned counsel for the applicant, Sri Abhinav Prasad, learned AGA for the State and perused the material brought on record.
2. This is the first bail application before this Court moved by the applicant regarding Case Crime No. 197 of 2016, under section 14 of Foreigners Act, P.S. Greater Noida, District Gautam Budh Nagar. The submission of learned counsel for the applicant is that applicant originally belongs to Federal Republic of Nigeria and he came to India on Visa, but had overstayed in India, subsequently the police arrested the applicant and the applicant informed the police in his statement recorded under section 161 Cr.P.C. on 21.08.2016 that he has not committed any crime in India and because of his being very poor he was unable to get his Visa extended. It is further submitted that as the applicant has not committed any offence in India of any type hence the offence under section 14 of the Foreigners Act is not made out against the applicant. Applicant is innocent and has been falsely implicated in the present case due to ulterior motive. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. Further submission is that applicant who is in jail since 13.08.2016 has no other criminal history and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses. Applicant also undertakes that he will not misuse the liberty, if granted. Learned counsel on behalf of applicant has brought on record the judgment passed by the Hon'ble Apex Court in the case of Pramod Kumar Saxena Vs. Union of India & Ors Writ Petition (Crl.) No. 58 of 2007 as well as Hussain and Anr Vs. Union of India Criminal Appeal No. 509 of 2017.
3. The applicant is a Nigerian citizen and has come India in the year 2006 on six months business Visa but fail to leave the country prior to expiry of his Visa and, therefore, was found to be impeached by the Foreigners Act. It is also submitted that simply because the applicant is a foreign national, his right to bail is not lost and neither can his right to liberty guaranteed under Article 21 of the Constitution of India be subject to unreasonable restrictions. Chapter 33 of the Cr.P.C. is the chapter pertaining to provisions as to bail and bonds. A look at the text of the chapter and its several provisions will make it evident that the provisions pertaining to bail and bonds apply to "any person". A foreigner shall fall under the category of "any person" in respect of whom the provisions relating to bail and bonds shall apply. There is no legislative mandate that shall appear from a reading of the Foreigners Act that a person charged with an offence under the said Act cannot apply for bail. Therefore, the scope and intent of the Foreigners Act enabling an accused to apply for bail is different from other special acts such as the NDPS Act, TADA Act etc. where the Acts themselves provide for conditions, the fulfillment of which is the sine qua non for making an application for bail. In other words, there is no fetters to be read into the Foreigners Act enabling the accused to apply for bail.
4. Learned AGA though opposed the prayer of learned counsel for the applicant and stated that in case the applicant will be released on bail then there is every possibility of his absconding and he will not participate in trial proceedings.
5. Considering the facts and circumstances of the case , equity and natural justice the applicant Uzobude Evans E. be released on bail in Case Crime No. 197 of 2016, under Section 14 Foreigners Act, Police Station- Greater Noida, District- Gautam Budh Nagar on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i). The applicant shall surrender his passport in the trial court where his case is being tried.
(ii). The applicant shall not leave the limits of National Capital Territory of Delhi without prior permission of the concerned trial court.
(iii). The applicant shall report to the Station House Officer P.S. Greater Noida, District Gautam Budh Nagar, Uttar Pradesh, India, if he is called.
(iv). The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(v). The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(vi). In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(vii). The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
6. In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail.
7. The trial court is further directed to expedite the trial of the aforesaid case and conclude the same preferably within a period of six months from the date of production of certified copy of this order before the trial court without granting unnecessary adjournment to either of the parties if there is no legal impediment.
Order Date :- 05.4.2019
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