Kom 12:14:32 vs The State Of Manipur Represented ...
2022 Latest Caselaw 164 Mani

                                                                                  Page |1

JOHN   Digitally
       signed by

TELE   JOHN
       TELEN KOM
                                      IN THE HIGH COURT OF MANIPUR
                                                AT IMPHAL

N      Date:
       2022.04.29                         MC(Crl.Rev.P) No. 2 of 2021
                                         Ref:- Crl.Rev.P. No. 10 of 2021
KOM    12:14:32
       +05'30'
                           Md. Kyaw Kyaw Naing @ Abdul Rahim (33) yrs., S/o
                           Abdul Jabar @ Ula Sin of Kawhmu Village Moha
                           Rangoon, Myanmar at present in the custody of the
                           Heingang Police Station, Imphal East, Manipur-795002.

                                                      ..... Respondent No.2/Applicant

- versus -

1. The State of Manipur represented by the Chief Secretary (Home), Government of Manipur, Babupara Old Secretariat Building, Imphal West, Manipur - 795001.

2. The Officer-in-Charge/Investigating Officer, Thoubal Police Station, Thoubal District, Manipur- 795138.

......... Petitioner/Opposite parties

MC(Crl.Rev.P) No. 3 of 2021 Ref:- Crl.Rev.P. No. 10 of 2021

Md. Kyaw Kyaw Naing @ Abdul Rahim (33) yrs., S/o Abdul Jabar @ Ula Sin of Kawhmu Village Moha Rangoon, Myanmar.

..... Applicant/Petitioner

- versus -

1. The State of Manipur represented by the Chief Secretary (Home), Government of Manipur, Babupara Old Secretariat Building, Imphal West, Manipur - 795001.

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 Page |2

2. The Officer-in-Charge, Thoubal Police Station, Thoubal District, Manipur-795138.

.........Respondents

MC(Crl.Rev.P) No. 7 of 2021 Ref:- Crl.Rev.P. No. 10 of 2021

Md. Kyaw Kyaw Naing @ Abdul Rahim (33) yrs., S/o Abdul Jabar @ Ula Sin of Kawhmu Village Moha Rangoon, Myanmar.

..... Respondent No. 2/Applicant

- versus -

1. The State of Manipur represented by the Chief Secretary (Home), Government of Manipur, Babupara Old Secretariat Building, Imphal West, Manipur - 795001.

2. The Officer-in-Charge/Investigating Officer, Thoubal Police Station, Thoubal District, Manipur- 795138.

.........Respondents

BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Applicants :: Mr. P. Tomcha, Advocate

For the Respondents :: Mr.Lenin Hijam, Addl. AG

Date of Hearing and reserving Judgment & Order :: 01.02.2022

Date of Judgment & Order :: 27.04.2022

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 Page |3

JUDGMENT AND ORDER (CAV)

Miscellaneous Case No. 2 of 2021 has been filed by

the petitioner to recall the order dated 17.4.2021 directing the

learned Special Judge (ND&PS), Thoubal to issue warrant for

arresting the petitioner and remand him into the judicial custody and

to enlarge him on bail.

2. Miscellaneous Case No.3 of 2021 has been filed by

the petitioner under Section 439 read with Section 390 Cr.P.C. read

with Section 36-C of the Narcotic and Psychotropic Substance Act

to release him on bail.

3. Miscellaneous Case No.7 of 2021 has been filed by

the petitioner to call for the medical report/records of the petitioner

maintained at the Manipur Central Jail, Sajiwa.

4. Since the issue involved in these Miscellaneous

Cases is one and the same, they were taken up together and

disposed of by this common order.

5. Heard Mr.P.Tomcha, learned counsel for the petitioner

and Mr.Lenin Hijam, learned Additional Advocate General for the

respondents.

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 Page |4

6. The learned counsel for the petitioner submitted that

the petitioner is a citizen of Myanmar having his residence at

Kawhmu Village, Moha Rangoon, Myanmar. He along with 9 others

were initially arrested in connection with FIR No.94(08)2019 on the

file of the Thoubal Police Station under Section 22(c)/29/60 of the

ND & PS Act and after filing the charge sheet in Special Trial Case

No.12 of 2020, the charge hearing of the case was done. By the

order dated 20.01.2021, the trial Court discharged all the 9 accused

from liabilities of the case, including the petitioner, who was arrayed

as accused No.2.

7. The learned counsel further submitted that aggrieved

by the discharge order, the respondent State preferred Criminal

Revision Petition No.10 of 2021 and by the order dated 17.4.2021,

this Court stayed the order of discharge and issued an interim order

directing the learned Special Judge, Thoubal to issue warrant for

arresting the petitioner and remanding him into judicial custody.

Aggrieved by such order, the petitioner has filed M.C.No.2 of 2021.

In the meanwhile, the petitioner filed Criminal Miscellaneous (B)

Case No.65 of 2021 under Section 390 Cr.P.C. before the learned

Special Judge, Thoubal praying to release him on bail. However,

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 Page |5

the said application was dismissed on the ground that M.C.No.2 of

2021 is pending.

8. The learned counsel then submitted that since the

Superintendent of Manipur Central Jail failed to release the

petitioner pursuant to the discharge order, he had filed Criminal

Miscellaneous Case No.6 of 2021 before the learned Special

Judge, wherein the Superintendent of Police submitted his reply

stating that the petitioner being a foreign national was released on

21.1.2021 and received by a team of District Police, Imphal East led

by SI of Police, Heingang Police Station. However, concealing this

fact, the Heingang Police arrested the petitioner by registering FIR

No.10(01)2021 under Section 14A(a)/14(A)(b) of the Foreigner Act

and he was produced before the learned Chief Judicial Magistrate,

Imphal East and the learned CJM, Imphal East remanded him to

police custody till 27.1.2021.

9. The learned counsel next submitted that by the order

dated 27.1.2021, the petitioner was released on bail, however, he

was kept in the safe custody of the Investigating Officer. In the

meantime, charge sheet was filed in the said case and the petitioner

was discharged from liabilities on 11.2.2021 with a direction to the

police to hand over the petitioner to the Immigration Office or the

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 Page |6

concerned Department for doing the needful. Since the respondent

Police failed to follow the direction, the petitioner filed Criminal

Miscellaneous Case No.75 of 2021 before the CJM, Imphal East for

contempt. By the order dated 19.4.2021, the said Miscellaneous

Case was disposed of by the learned CJM, Imphal East forwarding

the case to the High Court for passing necessary orders regarding

the custody of the petitioner.

10. The learned counsel argued that the Visa of the

petitioner had expired and unless the same is validated, there is no

question of him leaving the country and returning to his home

country. Further, there is no possibility of the petitioner absconding

and interfering with the prosecution. On the other hand, if the

petitioner is again remanded, he would be put to great prejudice, as

there will be no opportunity of regularizing his documents for staying

in India. Further, there is possibility of dismissing the Criminal

Revision Petition filed by the respondent State.

11. According to the learned counsel, the petitioner was

affected HIV positive while in custody at Manipur Central Jail and

he was issued with Patient Booklet for giving Antiretrovial Therapy.

Now the petitioner is facing danger to his health and sees no hope

for his future life. The jail is now becoming his death call and

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 Page |7

therefore, immediate remedial measures are requested to protect

his life and personal safety. For the purpose of considering the case

of bail, the medical report/reports of the petitioner maintained by the

Manipur Central Jail, Sajiwa are to be called for.

12. The learned counsel finally argued that despite the

petitioner being discharged from liabilities, he was unnecessarily

detained in the jail from the date of Initial arrest till today, thereby

facing untold and inhuman hardship. Unless the petitioner is

enlarged on bail, he shall be greatly prejudiced. He has come to

India by a valid Visa and passport and he is ready to comply with

any condition Imposed on him by this Court, Including any direction

to surrender his passport In the Court and also to stay at a place

designated by this Court and also to report to the concerned police

station from time to time. Earlier, the petitioner approached the

learned Special Judge, Thoubal by filing Criminal Miscellaneous

Case (B) No.65 of 2021. However, the same was dismissed on the

ground that M.C.No.2 of 2021 is pending. In such facts and

circumstances, the learned counsel for the petitioner prays for

release of the petitioner on bail.

13. Opposing the prayers made in the petitions, Mr. Lenin

Hijam, learned Additional Advocate General submitted that the

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 Page |8

petitioner is the real owner of the seized WY tablets and in fact, he

had transported the seized consignment with the other co-accused

from Moreh to Imphal and then to Bangladesh via Dimapur, Silchar,

Agartala respectively. The respondent State has preferred a

Criminal Revision Petition No.10 of 2021 against the order passed

by the learned Special Judge discharging the accused persons.

14. He further submitted that pursuant to the order dated

20.1.2021, the officer-in-charge of Thoubal Police Station received

release order and after completing the formalities, the Reversed

Section of Jail staff tried to find out the relatives of the petitioner,

but no relatives were found to receive the petitioner till 4.30 p.m. on

20.1.2021. The petitioner could not be released as it becomes dark

and the authority wanted to release him on bright day light.

Accordingly, the petitioner was released from jail on 21.1.2021 at

10.30 a.m.

15. He further added that on 21.1.2021 while a team of

Heingang Police Station was on patrolling, they found the petitioner

was found at loitering at Khabeisoi area and he was arrested as he

violated the Visa norms by not registering with Foreigner

Registration Office. Accordingly, a case in FIR No.10(01)2021

under Section 14A(a)/14A(b) of the Foreigner Act was registered

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 Page |9

against him. Further, the officer-in-charge of Heingang Police

Station tried to hand over the petitioner to the Immigration Office in

order to comply with the direction of this Court, but no response has

been communicated from the concerned authorities.

16. The learned Additional Advocate General further

submitted that the prayer of the petitioner to enlarge him on bail

cannot be considered in view of the fact that he is a foreign national

with hardened criminal record and as such, if he enlarged on bail,

then he will abscond unknown areas in Myanmar and it will be very

difficult for the prosecution to complete the trial in the criminal case

registered against him.

17. Insofar as the prayer of the petitioner to call for the

medical records from the Jail authority is concerned, the learned

Additional Advocate General argued that the officer-in-charge of

Thoubal Police Station has not received any information regarding

the confirmation of the HIV positive of the petitioner. He further

submitted that the warrant of arrest issued by the learned Special

Judge in Special Trial Case No.12 of 2021 was executed and the

petitioner was remanded into judicial Custody on 26.4.2021, where

he was subjected to medical examination, but no complaint of such

disease was found. However, the respondent Police came to know

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 10

from the medical documents produced by the petitioner that ART

treatment has already started and as such, the immediate treatment

is not required. Therefore, there is no question of calling for the

medical records from the Jail authorities.

18. Coming to the prayer of the petitioner to enlarge him

on bail, the learned Additional Advocate General argued that the

petitioner and other accused were discharged on 20.1.2021 on

wrong presumption of facts and laws and that the learned Special

Judge misconstrued the facts of the present case and also the

relevant provision of law by applying Section 42 (1) of the ND & PS

Act. In fact, the petitioner had expired his Visa and unless the same

is validated, there is no guarantee that he may not leave India as

he was an International drug smuggler, as he has his own

organization in everywhere. There is also every possibility that the

petitioner may commit similar offence if he is released on bail as he

has link with his own associates.

19. According to the learned Additional Advocate General,

if the petitioner was released on bail, he will not appear before the

Court as and when required. It is their apprehension that he may

flee away to this country by any means as he regularly visited

Manipur for transporting the WY tablets to Bangladesh through

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 11

Tripura. The main Criminal Revision Petition No.10 of 2021 may be

heard finally as the order dated 20.1.2021 is directly contrary to the

settled law of the Hon'ble Supreme Court and thus, prayed for

dismissal of the bail petition along with the other two petitions,

namely M.C.Nos.2 and 7 of 2021.

20. This Court considered the rival submissions of parties

and also perused the materials available on record.

21. The grievance of the petitioner is that he and the other

accused were initially arrested by the Thoubal Police in connection

with FIR No.94(08)2019 and after the charge sheet was filed in

Special Trial Case no.12 of 2020 on the file of the Special Judge

(ND & PS), Thoubal, the charge hearing was conducted and by the

order dated 20.1.2021, the learned Special Judge discharged all the

accused.

22. According to the petitioner, after passing the order for

discharge, the Superintendent of Manipur Central Jail has failed to

release the petitioner. However, concealing the fact, the Heingang

Police arrested the petitioner by registering FIR No.10(01)2021

under Section 14A(a) and (b) of the Foreigners Act and produced

before the learned CJM, Imphal East and remanded him to police

custody and still the petitioner is in custody. According to the

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 12

petitioner, charge in FIR No.10(01)2021 was filed and considered

and the petitioner was discharged from liabilities on 11.2.2021 by

the learned Chief Judicial Magistrate, Imphal East. While

discharging the petitioner, the learned CJM observed that the

accused is admittedly a Foreigner and at present he does not

possess valid documents for his stay in the country. Hence, the

accused is to be handed over to the Immigration office/or concerned

Department for doing the needful. Since the petitioner has been

kept in custody without handing over to the Immigration office, the

petitioner filed contempt proceedings in Criminal Miscellaneous

Case No.75 of 2021. By the order dated 19.4.2021, the learned

CJM, Imphal East forwarded the same to the High Court for passing

necessary orders regarding the custody of the petitioner.

23. In the meanwhile, aggrieved by the order dated

20.1.2021, the State has preferred Criminal Revision Petition and

by the order dated 17.4.2021, this Court, while admitting the

Revision, stayed the operation of the order dated 20.1.2021 passed

by the learned Special Judge. This Court also directed the learned

Special Judge, Thoubal to issue warrant for arresting the petitioner

and remand him into judicial custody. In view of the above facts and

circumstances, the petitioner has filed M.C.No.2 of 2021 to recall

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 13

the order dated 17.4.2021 and M.C.No.3 of 2021 to enlarge him on

bail. According to the petitioner, he was affected by HIV positive, for

which he was taking ART treatment. Since the petitioner was facing

grave danger to his health and in order to show that he was affected

seriously, the medical records are to be called for. Accordingly, a

prayer is made in M.C.No.7 of 2021.

24. On the other hand, it is the say of the respondent State

that when M.C.No.2 of 2021 is pending for recalling of the order

dated 17.4.2021 passed by this Court, M.C.No.3 of 2021 for

releasing him on bail is not maintainable. Ultimately, the prayer in

M.C.Nos.2 of 2021 and 3 of 2021 is similar. According to the

respondent State, earlier, the petitioner has filed Criminal Misc. (B)

Case No.65 of 2021 before the learned Special Judge for releasing

him on bail and the same was dismissed on 7.7.2021. Therefore,

taking note of the factual situation and the respondent State has

every hope to succeed in the Criminal Revision Petition and also if

the petitioner is released, he will not appear before the Court as and

when required as he was a foreign national. Further, the Court also

directed the learned Special Judge, Thoubal to issue warrant for

arresting the petitioner and remand him into judicial custody. In view

of the above facts and circumstances, the petitioner has filed

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 14

M.C.No.2 of 2021 to recall the order dated 17.4.2021 and M.C.No.3

of 2021 to enlarge him on bail. According to the petitioner, he was

affected by HIV positive, for which he was taking ART treatment.

Since the petitioner was facing grave danger to his health and in

order to show that he was affected seriously, the medical records

are to be called for. Accordingly, a prayer is made in M.C.No.7 of

2021.

25. On the other hand, it is the say of the respondent State

that when M.C.No.2 of 2021 is pending for recalling of the order

dated 17.4.2021 passed by this Court, M.C.No.3 of 2021 for

releasing him on bail is not maintainable. Ultimately, the prayer in

M.C.Nos.2 of 2021 and 3 of 2021 is similar. According to the

respondent State, earlier, the petitioner has filed Criminal Misc. (B)

Case No.65 of 2021 before the learned Special Judge for releasing

him on bail in and the same was dismissed on 7.7.2021. Therefore,

taking note of the factual situation and the respondent State has

every hope to succeed in the Criminal Revision Petition and also if

the petitioner is released, he will not appear before the Court as and

when required as he was a foreign national. Further, ART treatment

to the petitioner has already started and as such, immediate

treatment is not required and therefore, the question of calling for

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 15

the medical records of the petitioner does not arise. Thus, prayed

for dismissal of the all three petitions.

26. There is no dispute that pursuant to the discharge

order dated 20.1.2021 passed in Special Trial Case No.12 of 2020

and upon the receipt of the order and also after completing the

formalities, the Reversed Section of Jail tried to find out the relatives

of the petitioner, however, no relatives were found to receive the

petitioner till 4.30 P.M. and the Jail authority decided to release him

on bright day light and accordingly, he was released on 21.1.2021

at 10.30 A.M.

27. There is also no dispute that in the second case being

FIR No.10(1) HNG PS registered under Section 14A of the

Foreigner Act, the learned CJM, Imphal East, discharged him by the

order dated 11.2.2021 in Criminal (P) Case No.3 of 2021. As

against the discharge of the petitioner in the aforesaid case, the

State has not been preferred any appeal or revision. As such, there

is no case pending against the petitioner. However, he is in custody.

28. The material produced before this Court would

disclose that the petitioner was in custody from 24.8.2019, the day

of his entry to Manipur till his arrest in FIR No.10 stated above. At

the time his entry, the petitioner was having valid Visa and the Visa

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 16

expired during the period he remained in judicial custody. Thus, the

stay of the petitioner exceeding the period for which the Visa was

issued cannot be termed to be voluntary, as Section 14(a) of the

Foreigner Act provides that the stay has to be voluntary. In such

view of the matter, the stay of the petitioner will not be covered

under the aforesaid provision. Likewise the provision of Section

14(b) also does not attract as the petitioner allegedly came to

Manipur to conduct betel nut business, however, he has remained

in custody throughout his stay. Taking note of the all theses facts,

the petitioner was discharged from FIR No.10(1)2021 HNG PS and

the learned CJM, Imphal East has also rightly held so. In the

absence of any rebuttal from the side of the respondent State and

also in the absence of any appeal or revision against the order

dated 11.2.2021, this Court is of the considered view that as such

there is no case pending against the petitioner.

29. At this juncture, the point to be considered in these

petitions is whether the petitioner is entitled to enlarge on bail as

prayed for by him.

30. As stated above, the petitioner was arrested on

24.8.2019 in connection with FIR No.94(8)2019 and since then he

has been in judicial custody and when he was discharged from the

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 17

said case on 20.1.2021 and nobody came to receive the petitioner

from the jail, the jail authorities kept him in jail and on the next day,

they released him. However, on 21.1.2021, the Heingang Police

registered an FIR against the petitioner in FIR No.10(1)2021 under

the Foreigner Act alleging that the petitioner had violated the Visa

norms by not registering with the Foreigner Registration Office.

31. Admittedly, the petitioner is in custody from day one

he reached Manipur and on 21.01.2021 that is on the next day of

discharge from the charges in FIR No.94(8)2019 by the learned

Special Judge, the respondent police arrested the petitioner

alleging that he had violated the Visa norms. From the above

narrated facts and also as held by the learned Chief Judicial

Magistrate, Imphal East in Criminal (P) Case No.3 of 2021, it is clear

that the petitioner was having valid Visa while entering Manipur

during 2019. In view of the above, this Court is of the view that how

it could be said that the petitioner had violated the Visa norms, as

the petitioner was in custody. Thus, as of now there is no case

pending against the petitioner for retaining him in jail. Further,

nothing has been produced by the respondent State to show that

pursuant to the order dated 11.2.2021 passed by the learned CJM,

Imphal East, the petitioner was handed over to the Immigration

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 18

Officer or the concerned Department. That apart, the respondent

State allowed the order dated 11.02.2021 to attain finality. Thus, the

detention of the petitioner in the jail is questionable in view of the

discharge from the offence under Section 14 of the Foreigner Act

by the learned CJM, Imphal East. Thus, the personal liberty of the

petitioner is very much affected.

32. In the aforesaid facts and circumstances of the case,

when this Court considers the bail application of the petitioner, it is

apposite to mention that Article 14 of the Constitution of India

guarantees equality before law or equal protection of laws within the

territory of India, which is applicable to "person" which would also

include the "citizen" of the country and "non-citizen". This reflects

that the Indian Legal system does not bring the nationality of an

individual into consideration while granting him the benefit of the

provisions of bail. There is no discrimination or differentiation in

granting bail to a foreign national in India. That apart, the personal

liberty is of utmost importance in our constitutional system

recognized under Article 21 of the Constitution of India. Deprivation

of personal liberty must be founded on the most serious

considerations relevant to welfare objectives of the society as

specified in the Constitution.

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 19

33. Time and again, the Hon'ble Supreme Court held that

the personal liberty, deprived when bail is refused, is too precious

a value of our constitutional system recognized under Article 21 that

the crucial power to negate it is a great trust exercisable, not

casually but judicially, with lively concern for the cost to the

individual and community. To glamorize impressionistic orders as

discretionary may, on occasions, make a litigative gamble decisive

of a fundamental right. After all, personal liberty of an accused or

convict is fundamental, suffering lawful eclipse only in terms of

procedure established by law. Thus personal liberty is not curbed

except in accordance to the procedure established by law in order

to strike a balance between the right to individual liberty and the

interest of society.

34. In the Indian legal system, the procedure of bail is

provided in the Criminal Procedure Code. Bail has not been defined

in the Code although the offences are classified as bailable and

non-bailable. In the former class, the grant of bail is a matter of

course. It may be given either by the police-officer in charge of a

Police Station having the accused in his custody or by the Court.

The release may be ordered on the accused executing a bond and

even without sureties. In the latter class, the accused may be

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 20

released on bail but no bail can be granted where the accused

appears on reasonable grounds to be guilty of an offence

punishable either with death or with imprisonment for life. As soon

as reasonable grounds for the guilt cease to appear, the accused is

entitled to be released on bail or on his own recognizance; he can

also be released, for similar reasons between the close of the case

and delivery of judgment. When a person is released on bail the

order with reasons therefore should be in writing.

35. There are case laws to the proposition that merely

because the accused is a foreign national, he cannot be deprived

of the benefits of bail. Law does not permit any differentiation

between Indian Nationals and Foreign Nationals in the matter of

granting bail. What is permissible is that, considering the facts and

circumstances of each case, the Court can impose different

conditions which are necessary to ensure that the accused will be

available for facing the trial. It cannot be said that an accused will

not be granted bail because he is a Foreign National. Here, in the

case on hand, as stated supra, there is no case pending against the

petitioner and in fact, in the offence alleged against him under

Section 14 of the Foreigner Act, he was discharged and the only

case, the petitioner is now facing is the Criminal Revision Petition,

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 21

which was filed by the respondent State against the discharge order

passed by the learned Special Judge in Special Trial Case No.12

of 2020, wherein the petitioner had entered appearance through his

counsel and the physical presence in that case is not required.

36. In the case Mohammed Kunju and another v State

of Karnataka, AIR 2000 SC 6, the accused was a foreign national.

When he was granted bail, he jumped it and slipped out of India. As

a result, legal action against his sureties for levy of the penalty

under their forfeited bail bonds was initiated. That action was

challenged by the sureties before the Hon'ble Supreme Court.

While dealing with the legality or otherwise of the said legal

proceeding against sureties, an observation was made by Hon'ble

Supreme Court that while granting bail to the accused foreign

national, the Court could have imposed condition to surrender his

passport as a measure to prevent him to escape out of India.

37. Ordinarily one cannot leave the country without the

passport. Though the possibility of fleeing of an accused from trial

may be more in the case of foreign national, it cannot be said that

the accused cannot be granted bail merely because he is a foreign

national. There is no law which authorizes or permits discrimination

between a foreign national and an Indian national in the matter of

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 22

granting bail what is permissible is that, considering the facts and

circumstances of each case, the Court can impose different

conditions to ensure that the accused will be available for facing

trial. Nothing placed on record to show that criminal cases are

pending against the petitioner.

38. It appears that pursuant to the order passed in the

Criminal Revision Petition No.10 of 2021, dated 17.4.2021, the

petitioner is in judicial custody and the petitioner has also filed

M.C.No.2 of 2021 to recall the said order by stating that there is no

question of him leaving the country and returning to his home

country and also there is no possibility of the petitioner absconding

and interfering with the prosecution. Further, the Visa of the

petitioner had expired and unless the same is validated, there is no

question of him leaving the country.

39. It would be disgrace 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 valued principles of rule of law and vocative

of the constitutional mandate and principles of human rights.

Because the petitioner being a foreign national, it does not mean

that he is not entitled the benefit of bail. Therefore, this Court is of

MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 23

the view that while granting bail to a foreign national firmly believes

in imposing certain conditions like surrender of passport, bail bonds,

attendance before the Consulate or the Investigating Officer, etc. in

order to prevent misuse of the provision, as there may be chances

of the accused absconding after getting bail.

40. At this stage, learned Additional Advocate General

argued that if the petitioner is enlarged on bail, he will flee away to

this country and therefore, he cannot be enlarged on bail.

41. The fact that the petitioner will abscond by itself cannot

be a ground for detaining him in prison indefinitely, as he is in

custody for more than two and half years. The police had power to

take action against the absconding offenders also. There is no law

which authorizes or permits discrimination between a foreign

national and Indian national in the matter of granting bail and as

stated supra, the Court can impose different conditions to ensure

that the petitioner will be available for facing trial.

42. It is reiterated that law does not authorise or permit

any discrimination between a foreign National and an Indian

National in the matter of granting bail. What is permissible is that,

considering the facts and circumstances of each case, the Court

can impose different conditions which are necessary to ensure that

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the accused will be available for facing trial. It cannot be said that

an accused will not be granted bail because he is a foreign national.

43. It is also the submission of the learned Additional

Advocate General that the prayer for bail was already made by the

petitioner in M.C.No.2 of 2021 by recalling the order dated

17.4.2021. Therefore, the bail application being M.C.No.3 of 2021

is not maintainable. The aforesaid argument cannot be

countenanced for the reason that same prayer made twice will

disentitle the petitioner for bail. Taking into consideration the facts

and the circumstances in which the petitioner is in custody and also

the health condition, this Court is of the view that the petitioner is

entitled for bail in the interest of justice.

44. In view of the findings arrived at by this Court that the

petitioner is entitled for bail, the interim order dated 17.4.2021

passed in the Criminal Revision Petition is recalled and accordingly,

M.C.No.2 of 2021 is allowed.

45. Insofar as the M.C.No.7 of 2021 is concerned, taking

note of the health condition of the petitioner, the medical records of

the petitioner as prayed in the petition is ordered to be called for

from Manipur Central Jail, Sajiwa. Accordingly, M.C.No.7 of 2021 is

allowed.

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46. Having regard to the entire facts and circumstances of

the case, I do not find any justification for detaining the petitioner in

prison any longer. Therefore, the petitioner, who is in custody since

24.08.2019 should be released on bail on furnishing a personal

bond in the sum of Rs.1,00,000/- (Rupees One Lakh) only with two

sureties in the like amount to the satisfaction of the learned Special

Judge, (ND&PS), Imphal and subject to the conditions that (a) the

petitioner is directed to report before the Learned Special Judge,

(ND&PS), Thoubal once in a week i.e. every Monday at 10 a.m.

until further orders; (b) he shall surrender his passport, if not already

seized; (c) he shall not leave the country without permission of the

learned Special Judge, (ND&PS), Imphal; (d) he shall not involve in

any act which will create a reasonable ground to assume that the

petitioner is trying to create hurdle which will entail cancellation of

his bail.

JUDGE

FR/NFR

Sushil

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