Allahabad High Court
Han Jun Wei vs State Of U.P. Thru. Prin. Secy. Lko And ... on 24 July, 2025
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:43000 Reserved on 17.06.2025 Delivered on 24.07.2025 Court No. - 17 Case :- APPLICATION U/S 482 No. - 4664 of 2025 Applicant :- Han Jun Wei Opposite Party :- State Of U.P. Thru. Prin. Secy. Lko And Another Counsel for Applicant :- Salil Kumar Srivastava,Rahul Srivastava Counsel for Opposite Party :- G.A.,A.S.G.I. Hon'ble Rajeev Singh,J.
1. Heard learned counsel for the applicant, Dr. V.K Singh, learned Government Advocate, assisted by Shri Shivnath Tilhari and Shri Raj Kumar Singh, learned Special Counsels for the Union of India.
2. The present application U/S 482 Cr.P.C. has been filed by the applicant with the prayer to quash the order dated 03.12.2024 passed by the trial court thereby rejecting the application dated 04.10.2024 moved by the applicant seeking permission for visiting China for treatment of his mother suffering from Stage-IV Lung Cancer.
3. Learned counsel for the applicant submitted that the applicant is a national of Republic of China and he is a permanent resident of 88 Zheng Huang Banner Xiajaihe Haidian, Bijing Dan, Republic of China, 102206. He further submitted that applicant is a businessman, running his business in India since 2017 in accordance with the national laws and also paying tax. Chairman, CBDT, Government of India has also awarded him with the bronze medal being best income tax payee. He is also having valid passport bearing no.E34082395 valid till 13.01.2031; he has been staying in India since last 15 years on business visa with the multiple entries and; he has never been involved in any criminal activities. He next submitted that visa of applicant was valid up to 25.8.2020 and during the period of pandemic COVID-19, applicant was arrested on 10.06.2021 at Malda, West Bengal under Section 14A of Foreigners Act, 1946 due to misconception of fact as the visa of applicant was extended by means of notification issued by the Ministry of Affairs on 04.06.2021 keeping in view the pandemic COVID-19, and that the lock-down was prevalent in the country whereby it was provided that visa shall be deemed valid from 30.06.2020 till 31.08.2021.
4. Thereafter, the applicant was enlarged on bail by the Chief Judicial Magistrate, Malda, West Bengal on 12.08.2021 in the aforesaid case. He further submitted that FIR bearing Case Crime No.3 of 2021 under Sections 419, 420, 467, 468, 471, 120-B of IPC and Section 66-D of IT act, Police Station- ATS (Gomti Nagar), District- Lucknow was lodged, in which, the applicant was not named but during the course of investigation, involvement of applicant was shown by the Investigating Agency merely on the basis of superficial evidences, and thereafter, he was taken into custody on 01.07.2021 and charge sheet was also submitted against him. In the same case, the applicant was enlarged on bail by this Court vide order dated 03.02.2023 passed in Criminal Misc. Bail Application No.12165 of 2022.
5. Order dated 03.02.2023 passed in Criminal Misc. Bail Application No.12165 of 2022 is reproduced as under:
"Supplementary affidavit filed by learned counsel for the applicant is taken on record.
Heard learned counsel for the applicant, learned A.G.A for the State of U.P. and perused the record.
The present bail application has been filed on behalf of the applicant in Case Crime No.0003 of 2021, under Sections 419, 420, 467, 468, 471, 120-B I.P.C. and Section 66 D of I.T. Act, Police Station - A.T.S. (Gomti Nagar), District - Lucknow, with the prayer to enlarge him on bail.
Learned counsel for the applicant submitted that the applicant is an innocent person and has been falsely implicated in the case, as he visited India on the basis of valid visa and in the meantime, he was implicated in the present case, as no alleged offences are made out. He further submitted that he is in jail since 01.7.2021 and till today, charge has not been framed. He further submitted that co-accused, Li Tengli @ Alice, having identical role, have already been enlarged on bail by co-ordinate Bench of this Court vide order dated 2.9.2022 passed in Criminal Misc. Bail Application No.9616 of 2022 (bail order provided by learned counsel for the applicant is taken on record). In these circumstances, the applicant is entitled for bail. In case of being enlarged on bail, he will not misuse the liberty of bail.
Learned Special Counsel for A.T.S., vehemently opposed the prayer for grant of bail and submitted that during the course of investigation, involvement of the applicant was found but he does not dispute this fact that applicant is in jail since 01.07.2021 and till today, charge has not been framed.
Considering the rival submissions of learned counsel for parties, material available on record, contents of F.I.R., other relevant documents, nature of offence, I am of the view that the applicant is entitled to be released on bail. Trial court is directed to conclude the trial expeditiously, without giving any unnecessary adjournment to either of the parties.
Let applicant - Han Junwei - be released on bail in aforesaid Case Crime, on his furnishing personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-
(a) The applicant shall execute a bond to undertake to attend the hearings;
(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and
(c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
(d) The applicant after release shall immediately apply for extension of Visa; he will not leave the country without permission of the trial Court concerned. He shall also surrender his passport with the trial Court which shall be given to him, if so required, for extension of Visa.
(e) The applicant shall report to the Police Station concerned on every Monday of every week till the time her Visa is extended. After extension of Visa, his passport shall be surrendered before the trial Court concerned again (if the same is released by the trial Court for the purpose of extension of visa), which shall be released subject to the discretion of the trial Court as and when the release is sought.
It is provided that in case the applicant deposits the surety, as directed above, in cash, the same shall also be considered by the trial Court concerned to be the adequate surety. "
6. It is further submitted that the aforesaid order was modified by this Court on 10.02.2023, 19.04.2023, 30.05.2023 and 21.11.2023.
7. Orders dated 10.02.2023, 19.04.2023, 30.05.2023 and 21.11.2023 passed in Criminal Misc. Bail Application No.12165 of 2022 are reproduced as under:
Order dated 10.02.2023 "(C.M. Application No. 4 of 2023) This is an application seeking correction in the order dated 03.02.2023.
Heard learned counsel for the applicant.
It is submitted that the applicant may be permitted to deposit a sum of Rs.50,000/- in cash, in lieu of the sureties.
Correction application is allowed.
The applicant is permitted to deposit a sum of Rs.50,000/- in cash, in lieu of the sureties.
The order dated 03.02.2023 is modified to the above extent. "
Order dated 19.04.2023 "(I.A. No.5 of 2023 (Application for Correction) Heard.
The application is allowed.
The order dated 03.02.2023 is modified to the extent that the applicant shall report with Police Station ATS Noida in place of Police Station ATS Lucknow in terms of the directions issued in condition No. (e) in the bail order dated 03.02.2023. "
Order dated 30.05.2023 "(C.M. Application No.6 of 2023)
1. The application has been filed seeking correction/modification of the condition no (d) contained in the order dated 03.02.2023.
2. Considering the submissions, the condition no.(d) is clarified that the said benefit/directions shall apply to the renewal/fresh visa which shall be considered by the Foreigner Regional Registration Office, Delhi. It is clarified that this order shall not come in the way of grant of fresh Visa, if applied which shall be decided on merits ignoring the condition no.(d) in order dated 03.02.2023.
3. Accordingly, the application stands disposed off. "
Order dated 21.11.2023 "(I.A. No.7 of 2023)
1. This is an application seeking correction in the order dated 03.02.2023 passed in Criminal Misc. Bail Application No. 12165 of 2022.
2. Heard learned counsel for the applicant.
3. Correction application is allowed.
4. In the fifth point of the seventh paragraph of the order, the words "every Monday of every week" shall be read as "first Monday of every month".
5. In addition to the above, competent authority is directed to consider and take decision with regard to the request of extension of Visa in terms of the earlier order, expeditiously, preferably within one month.
6. Remaining portion of the order dated 03.02.2023 shall remain intact. "
8. Submission of learned counsel for the applicant is that the mother of applicant is in the Stage-IV of lung cancer, therefore, the applicant moved the application dated 30.02.2025 in the bail application with the prayer to modify the condition of the bail, i.e., not to leave country without prior permission of the Court concerned as well as appearing before the police station concerned on first Monday of every month. He further sought permission to visit China for a period of two months from the first date of visiting China, in order to sell his property to meet heavy expenditure for treatment of his mother being the only son, subject to condition that the applicant will come to India time to time to join the criminal proceedings of criminal trial. He also requested for grant of permission for two months from the first day to go to China till the end of two months but the said application of applicant for allowing him to go to China for raising fund by selling the property for treatment of his mother was rejected.
9. Learned counsel for the applicant further submitted that in the crime in question, no evidence was found against applicant till filing of first and second charge sheet. Thereafter, the third charge sheet was filed placing the name of applicant on the basis of confessional statement of co-accused persons, namely, Prashant Potelli and Le Tengli. He also submitted that there is no documentary evidence available on record against the applicant in respect of crime of cheating and forgery pertaining to offences under Sections 419, 420, 467, 468, 471 IPC. He next submitted that the case in question is of the year 2021 but till today, charge has not been framed against the applicant and the investigation is still going on.
10. Learned counsel for the applicant vehemently submitted that the applicant is also entitled to get the benefit of Article 21 of the Constitution of India being a foreign national to facilitate proper medical facility to his mother. He also drew attention of this Court on the translated version of the medical prescription of his mother (annexed as Annexure No-10 of the instant application) and submitted that the mother of the applicant is being treated at Peking University Cancer Hospital, Beijing, China and except the old-aged father, there is no one in his family to raise the fund for the medical treatment of his mother. He next submitted that in the identical circumstances, the permission was granted by the competent Court to the Chinese national, namely, Chao Hong Deng,
11. It has thus been submitted that the impugned order dated 03.07.2024 passed by Judicial Magistrate-I, ATS, Lucknow is liable to be set aside and applicant may be allowed to visit China for facilitating medical facilities to his mother, who is suffering from chronic lung cancer.
12. Learned counsel for the applicant, in support of his submission, also relied on the decisions of Hon'ble Supreme Court passed in the cases of Parvez Noordin Lokhandwalla Vs. State of Maharashtra and Anr. reported in 2020 SCC OnLine SC 807 and Aida Askerbekova and Anr. Vs. Department of Customs reported in 2020 SCC OnLine Del 1090 and requested for kind indulgence of this Court.
13. Shri Raj Kumar Singh, learned Special Counsel for Union of India vehemently opposed the prayer of applicant and submitted that there is no bilateral extradition treaty with China, and therefore, it would be very difficult to ensure his presence before the trial court, in case, he escaped. He also placed written instruction, which provides that Civil Authority as well as Registration Officer is competent to grant leave but in the case of criminal matters, accused should be permitted by the Court concerned.
14. Dr V. K. Singh, learned Government Advocate submitted that the Hon'ble Supreme Court in the case of Frank Vitus Vs. Narcotics Control Bureau and Ors. reported in 2025 SCC OnLine SC 30 has elaborately discussed the cognizance of Foreigners Act, 1946 and Foreigners Order, 1948 and Clause-5 of the Foreigners Order, 1948 provides the power to Registration Officer to grant permission to depart from India.
15. Hon'ble Supreme Court, in the aforesaid case, also observed, "while granting bail to a foreigner, the Court concerned shall issue direction to the State or prosecuting agency, as case may be to immediately communicate the order granting bail to Registration Officer concerned appointed under Section 3 of the Registration of Foreigners Rules, 1992 who in turn shall communicate the order to all authorities concerned including Civil Authorities. If such information is furnished, it will enable the authorities under the Act, the Rule and the Order to take appropriate steps in the accordance with law."
16. Learned Government Advocate further submitted that the medical prescription (annexed with the instant application) reveals that the treatment for the lung cancer of the mother of the applicant has been going on since 2023 and in between, he moved several applications in different proceeding but this fact was never reported and genuineness of the documents is also not verified. He next submitted that during the course of investigation, sufficient evidence is found against the applicant and the charge sheet has already been filed against him as well as some of the co-accused persons. Learned Government Advocate next submitted that the subject related to the investigation is directly related to the national threat, as the applicant and other co-accused persons were running the Hotel Star Spring and Resorts Pvt. Ltd., Gurugram, a unit of Hua Tong Behtar Vishwa Pvt. Ltd. Company and the information regarding the arrival of foreign nationals in the said hotel and their long stay was not reported to the local police administration. He further submitted that the applicant was intercepted when he was illegally crossing the India and Bangladesh border, in relation to which, the FIR was lodged against him as Case Crime No.616 of 2021, under Section 14A(b) of Foreigners Act, P.S.- Kaliachak, District- Malda, West Bengal. Learned Government Advocate next submitted that wife of the applicant is also not cooperating in investigation and during the course of investigation, it is also found that several per-activated Indian sim cards were being operated from China and Philippines. Therefore, there is no illegality in the order passed by the trial court and the present application is liable to be rejected.
17. Considering the submissions of learned Counsel for the applicant, learned Government Advocate, learned Special Counsel for Union of India and going through the contents of application as well as impugned order and other enclosures, it is evident that the applicant is a Chinese national and he was intercepted by the Agency while illegaly crossing the India and Bangladesh Border. The FIR bearing Case Crime No.616/2021 (supra) was lodged against him under Section 14A (b) of Foreigners Act at Malda, West Bengal and in the aforesaid case, he was enlarged on bail. Thereafter, his involvement was also found in the case in question.
18. It is also evident that the Hon'ble Supreme Court in the case of Frank Vitus (Supra) has observed that the foreign nationals cannot be departed from India without the leave of Civil Authority and while granting bail to foreigners, direction shall also be issued by courts to the State or prosecuting agency, as the case may be, to immediately communicate the order granting bail to the Registration Officer concerned.
19. Relevant paragraphs of aforesaid judgment are reproduced as under:
3. In the exercise of the power conferred under Section 3 of the Act, the Foreigners Order, 1948 (for short, 'the Order') has been issued. Clause 2(2) of the Order provides for appointing a Civil Authority by the Central Government. Clause 5 of the Order deals with the power to grant permission to depart from India. Clause 5 of the Order reads thus:
"5.Power to grant permission to depart from India.- (1) No foreigner shall leave India:-
(a) otherwise than at such port or other recognised place of departure on the borders of India as a Registration Officer having jurisdiction at that port or place may appoint in this behalf, either for foreigners generally or for any specified class or description of foreigners; or
(b) without the leave of the civil authority having jurisdiction at such port or place.
(2)Leave shall be refused if the civil authority is satisfied that
(a)the foreigner has failed to comply with the formalities of departure prescribed under the Registration of Foreigners Rules, 1939;
(b)the foreigners presence is required in India to answer a criminal charge;
(c) the foreigners departure will prejudice the relations of the Central Government with a foreign power;
(d) the departure of the foreigner has been prohibited under an order issued by a competent authority.
(3)(a) Notwithstanding anything contained in the above sub-paragraphs, a civil authority may prohibit the departure of a foreigner where it is satisfied that such departure would not be conducive to the public interest.
(b) Whenever a civil authority issues an order under clause (a), it shall report the matter forthwith to the Central Government which may cancel or modify the order in such manner as it thinks fit."
Under sub-clause (2) of clause 5, leave must be refused by the Civil Authority if it is satisfied that the foreigner's presence is required in India to answer a criminal charge. 4. Shri Vinay Navare, learned senior counsel appointed as Amicus Curiae, has suggested that considering the powers vested in Civil Authorities under the Order, it will be appropriate to direct that while considering the prayer for granting bail in case of a foreign national who is accused of serious offences, a notice should be issued to the Civil Authority so that the said authority can be heard on the prayer for grant of bail and on bail conditions, in the event the court is inclined to grant bail. Shri. Vikramjeet Banerjee, learned Additional Solicitor General of India has also submitted that it is always advisable to give notice of the bail application to the authorities under the Act and the Rules.
5. Under clause (b) of Section 3(2) of the Act, there is a power vested in the Central Government to issue an order generally or with respect to any particular foreigner or class of foreigners that they shall not depart from India or shall depart subject to observance of such conditions on departure as may be prescribed. The Rules do not impose any such restriction on departure from India. However, as noted earlier, according to clause 5(1)(b) of the Order, no foreigner shall leave India without the leave of the Civil Authority having jurisdiction. When a foreigner's presence is required in India to answer a criminal charge, permission to leave India must be refused. Under the Order, the Civil Authority can impose restrictions on the movements of a foreigner. Therefore, once a foreigner is released on bail, he cannot leave India without the permission of the Civil Authority, as provided in clause 5 of the Order. Under clause 11 and other clauses of the Order, various restrictions can be imposed on a foreigner while he is in India. The said power is wholly independent of the power to grant bail. As of today, there is no order passed by the Central Government for giving effect to clause (g) of Section 3(2) of the Act. In any event, even if such an order is issued, the power to arrest or detain a foreigner under the Act is independent of the power of the criminal court to grant bail. Notwithstanding the bail granted by a criminal court, the power to arrest and detain a foreigner can be exercised, provided the Central Government makes an order in terms of clause (g) of Section 3(2) of the Act.
6. Therefore, we do not see any propriety in issuing a direction that either the Civil Authority or the Registration Officer should be made a party to a bail application filed by a foreigner or a notice of the bail application be issued to the said authorities. The reason is that the authorities under the Act and the Order have no locus to oppose bail application filed by a foreigner unless bail is sought where the allegation is of the offence punishable under Section 14 of the Act. The impleadment of the Civil Authority or Registration Officer in all bail applications filed by foreigners may result in unnecessary delay in deciding the bail applications.
7. All that can be done is that while releasing a foreigner on bail, the Court should direct the investigating agency or the State, as the case may be, to immediately inform the concerned Registration Officer appointed under Rule 3 of the Rules about the grant of bail so that the Registration Officer can bring the fact of the grant of bail to the notice of concerned Civil Authority. 8. In addition to what we held by judgment and order dated 08th July, 2024, we issue the following directions:
(i) While granting bail to a foreigner within the meaning of the Act, the concerned court shall issue direction to the State or prosecuting agency, as the case may be, to immediately communicate the order granting bail to the concerned Registration Officer appointed under Rule 3 of the Rules who, in turn, shall communicate the order to all concerned authorities including the Civil Authorities. If such information is furnished, it will enable the authorities under the Act, the Rules and the Order to take appropriate steps in accordance with the law; and
(ii) A copy of this order shall be forwarded to Registrar Generals of all the High Courts, who in turn will forward the copies of the order to all the criminal courts in the respective States."
20. Keeping in view the fact that there is no bilateral extradition treaty between India and China, this Court is of the considered view that for whatsoever reasons, in case, applicant fails to appear before the trial court, it would be difficult to ensure his presence before the trial court.
21. In such circumstances, this Court finds no illegality in the impugned order passed by the Court below.
22. Accordingly, the present application is hereby dismissed.
Order Date :-24.7.2025 V. Sinha