Calcutta High Court (Appellete Side)
Swapna Akter @ Swapna Aktar vs State Of W.B on 24 July, 2014
Author: Subrata Talukdar
Bench: Subrata Talukdar
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In the High Court at Calcutta
Criminal Miscellaneous Jurisdiction
Appellate Side
Date: 24.07.2014
P.A. to S.Talukdar, J
CRM 7665 of 2014
Swapna Akter @ Swapna Aktar
Vs.
State of W.B.
Sri Deep Chaim Kabir;
Sri Anirban Banerjee;
.....for the petitioner
Ms. Faria Hossain
.....for the State
Sri Rajdeep Majumder
.....as amicus curiae
This is an application for bail in connection with
Uttarpara P.S. case no.26 of 2014 dated 20th January,
2014 under Sections 13 & 14 of the Foreigners Act,
1946. By order dated 16th of April 2014 the Ld.
Additional Chief Judicial Magistrate, Serampore, Hooghly
was pleased to reject the prayer of the petitioner for bail.
The petitioner is a Bangladeshi citizen and
claims to be a housewife aged around 25 years. She
further claims to have entered India on a valid passport
and Visa but failed to leave the country prior to expiry of
her Visa and therefore, is found to be in breach of the
provisions of the Foreigners Act.
The petitioner further claims to be the
mother of a one and a half year old male child who is
suffering from Pneumonia and was admitted for
treatment at the Dum Dum Cantonment Municipal
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Hospital. According to the petitioner her passport is valid
between 20th March, 2012 to the 19th March, 2017 and
the same is annexed at page-5 of CRM 7665 of 2014. The
petitioner further pleads that the Visa issued in her
favour by the Indian High Commission was issued on the
15th of April, 2013 and was valid up to 14th July, 2013
and, such pleading appears at page-6 of CRM 7665 of
2014.
The petitioner further claims to have entered
India legally on the 12th of May, 2013 and pleads that
she was a resident of the address given in the cause title
of the petition. Upon expiry of her Visa on the 14th of
July, 2013 the petitioner claims to have applied for
extension of the said Visa vide reference number
extn/B/330/13 and the same is pleaded at paragraph 8
of CRM 7665 of 2014. The petitioner further pleads that
she was compelled to stay back in India in view of
conducting treatment of her child and, since her Visa
expired she was detained under the provisions of the
Foreigners Act and Uttarpara P.S. case no.26 of 2014
dated 20th January, 2014 u/s 13 and 14 of the
Foreigners Act was registered.
The First Information Report registered in
connection with the said case is to the effect that on the
20th January, 2014 after getting a secret source
information regarding one absconding accused Mausam
Chakraborty in connection with Uttarpara P.S. case
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no.472 of 2013 dated 20th October, 2013 under Sections
498A/ 406/ 494/ 506 of the Indian Penal Code, the
police party raided one Hotel Moments under Purba
Jadavpur P.S. Pursuant to such raid the absconding
accused Mausam Chakraborty was detained from room
no.201 of the said hotel. The petitioner was also found in
the same room with the said accused Mausam
Chakraborty. The petitioner, after some delay gave her
correct particulars to the Investigating Officer admitting
that her present stay in India was illegal in view of the
expired Visa and therefore, she was booked u/s 14 of the
Foreigners Act.
Sri Deep Chaim Kabir, Ld. Counsel appearing on
behalf of the petitioner has, with characteristic clarity
submitted as follows:-
a) That simply because the petitioner is a foreign
Bangladeshi national her right to bail is not lost and
neither can her right to liberty guaranteed under
Article 21 of the State of India be subject to
unreasonable restrictions;
b) Section 78 of the Indian Penal Code provides as
follows:-
"Act done pursuant to the judgment or
order of Court. - Nothing which is done in
pursuance of, or which is warranted by the
judgment or order remains in force, is an
offence, notwithstanding the Court may
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have had no jurisdiction to pass such
judgment or order, provided the person
doing the act in good faith believes that the
Court had such jurisdiction."
Therefore, a plain reading of Section 78 (supra)
would lead to the inference that whether in jail or on
bail the accused remains under the authority of
Court. In the event the accused is granted bail the
authority of Court qua the said accused is not
removed.
c) Chapter 33 of the CrPC 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.
d) Section 441 of the said chapter 33 of the CrPC
provides for furnishing of bonds and sureties in
favour of "any person" who is either released on bail
or on his own bond. Pari materia to the rights of a
citizen of India, "any person", including the present
petitioner in her identity as a Bangladeshi national is
entitled to avail of, without exceptions, to the
provisions of Section 441 of chapter 33 of the CrPC.
e) There is no legislative mandate that shall appear from
a reading of the Foreigners Act that a person charged
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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 fulfilment of which is the sine qua non
to making an application for bail. In other words,
there are no fetters to be read into the Foreigners Act
enabling an accused to apply for bail.
f) Section 445 under chapter 33 of the CrPC, inter alia
provides for deposit in court by an accused person of
a sum of money or government promissory notes in
lieu of execution of a bond. In the extreme event an
accused foreign national fails to avail of the sureties
specified by the Court granting bail, Section 445 CrPC
provides the solution by requiring such person with
the permission of the Court, to execute a bond in lieu
of sureties. In other words, such bond shall be
personal and submitted with the approval of the
Court. The further intent of Section 445 CrPC is that
no person shall be deprived of his liberty for want of
availability of sureties and the competent Court has
the jurisdiction to accept a personal bond by way of
deposit of a sum of money or government promissory
notes.
g) Section 167 (1) and (2) of the CrPC provide for a
statutory right to apply for bail in respect of "any
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person". It has never been the intent of legislature
that such statutory right should weigh more in favour
of curtailment of the same and less in favour of the
exercise of such right.
h) Notwithstanding the fact that a person without the
help of sureties can avail of the personal bond u/s
445 CrPC (supra), in the facts of the present case the
petitioner is supported by local sureties.
Relying on all the above propositions of law, Sri Kabir
presents before this Court for consideration the following
decisions:-
1) Tunde Gbaja Vs. CBI reported in 2007 (95) DRJ
429. He relies on paras - 20 and 21 thereof.
"20. It is well known that the court takes
cognizance of the crime, not the offender.
The argument that the respondent filed a
charge-sheet, within time, when it did, is not which, as per proviso to Section 167(2) had to be filed within 60 days. But for the other offences, in respect of which the period prescribed, for filing the charge sheet is 90 days, no charges were indicated.
Though the right of the investigating agency to file a supplementary charge sheet, or a further report (under Section 173(8) pursuant to order of the court) cannot be disputed, yet the fact remains that there 7 cannot be part charge sheet, as has been contended in the present case. Therefore, following the decision in S.M.Purtado's case, as well as the Supreme Court ruling in Uday Mohanlal Acharya, it has to be concluded that the petitioner is entitled to be enlarged on bail. This is without prejudice to such other rights the respondents may have in law, to place further materials in support of the case, before the trial Court.
21. In view of the above discussion, the petitioner is directed to be enlarged on bail, subject to the following conditions:
a) His furnishing a personal bond in the sum of Rs.30,000/- and a surety of the like amount to the satisfaction of the competent court;
b) His undertaking not to leave the country, during the trial into offences under the Foreigners Act, and depositing his passport with the court;
c)His reporting to the court every week, on a date to be determined by the court, during pendency of the trial.
The petition is allowed in the above terms. 8
2) Zoro Daniel Vs. State reported in 2012 (III) AD (Delhi) p.-45 = 2012 (2) JCC 898, paras- 1, 2, 9 and 10.
"1. Vide the instant petition, the petitioner has sought to modify the impugned order dated 27/01/2012 passed by the learned Special Judge, NDPS, Patiala House Courts, New Delhi in a case FIR no.29/2011 under Sections 21 and 29 of the NDPS Act and Section 14 of the Foreigners Act, PS Special Cell, New Delhi and allow the petitioner to deposit cash amount in lieu of the surety.
2. Vide order dated 19/11/2011, learned Trial Judge, keeping in view the amount of contraband recovered from the petitioner, and the period already undergone by him in custody and also taking into consideration the report filed by I.O. that the petitioner has no previous antecedents, admitted the petitioner to interim bail for a period of one month on furnishing personal bond in the sum of Rs.50,000/- with one surety of the like amount.
9.As per Section 445 Cr.P.C. i.e. (Deposits instead of recognizance) that if the Accused person is unable to execute a bond with or without surety, then the court may permit 9 the Accused/convict to deposit a sum of money or Govt. promissory notes to such amount.
10. In the circumstances, I find no ground to deny the relief sought in the instant petition. Accordingly, the order dated 19/11/2011 is modified to the extent that the petitioner shall be released on deposit of cash amount of Rs.50,000/- before the trial court. Consequently, order dated 27/01/2012 is set aside.
3) Massimiliano Latorre and Anr. Vs. State of Kerala, commonly known as the Italian Marines' Case being an order passed by the Hon'ble High Court of Kerala at Ernakulam in their bail application no.3517 of 2012 at paras- 5,6 and 7.
"5. It was pointed out that if the petitioners are to go out of the jail, they should have valid Visa/travel documents and if they are not possessed of such valid Visa/travel documents, they would be committing offence under the Foreigner's Act and other laws of this Country. It is submitted that if the court grants bail that would amount to permitting the petitioners to commit the offence. It was noticing such a contingency, 10 Union of India i.e. Addl. 2nd respondent has been impleaded.
6. Learned Addl. Solicitor General has filed a statement which is to the effect that if this Court is inclined to grant bail, the Ministry of Foreign Affairs has to consider the following two alternatives:-
(ii) The foreign national does not have a valid passport. In such a situation, the Italian Embassy in India could be asked to issue a travel document in lieu of the Passport and the Visa endorsement can be done on such a travel document."
7. In view of the submission made by the learned Senior Counsel that the petitioners will surrender their passports and that they will not leave the State of Kerala or even the Ernakulam District and considering the period of detention already undergone by the petitioners, the petitioners are granted bail subject to the following conditions:-
a. The accused shall execute a bond for 'One Crore each with two solvent Indian sureties each for the like sum to the satisfaction of the Chief Judicial Magistrate, Kollam. Sureties shall produce their original title 11 documents or other original documents to prove their solvency.
b. The petitioners shall surrender their passports before Chief Judicial Magistrate Court, Kollam, if not already surrendered before court or seized by the police."
4) Lambert Kroger Vs. State, 2000 (IV) AD (Delhi) 507 = 85 (2000) DLT pg.46, paras-12 and 13.
"12. I have considered the petitioner's prayer for bail in the light of the facts and circumstances of this case and the legal position emerging from the above mentioned judgments of the Supreme Court and I am of the view, that there is no justification for further detention of the petitioner in prison. The petitioner was arrested in this case on 26.07.1999 and since then he has been in judicial custody. The investigation had been completed and chargesheet was filed in Court on 20.09.1999. The bank accounts of the company and the petitioner have been frozen and there are substantial balance amounts in the frozen accounts. Documents and articles which could form part of the evidence have already been recovered and seized by the respondent. The key witnesses are the complainants themselves. 12 Nothing has been brought to my notice to have a reasonable apprehension that the petitioner will influence the witnesses and tamper with evidence if he is released on bail. The petitioner's passport is with the respondent and ordinarily he cannot leave the country without the passport. Though the possibility of fleeing from trial may more in the case of a foreign national. There is no law which authorizes or permits discrimination between a foreign national and 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 to ensure that the accused will be available for facing trial. Learned Counsel for the respondent had pointed out that accused Paul Singh Clare and Cliff Roy who also are foreign nationals had run abroad and efforts were afoot for their deportation/extradition through Interpol. The fact that Cliff Roy and Paul Singh Clare have absconded by itself cannot be a ground for detaining the petitioner in prison indefinitely. More than seven months have passed after registering the FIR. The respondent had enough time to 13 take action against the absconding offenders also. It has not been explained how the continued detention of the petitioner will help to book the absconding offenders. Considering the above aspects and the nature of the alleged offences and the entire facts and circumstances of this case I am inclined to direct release of the petitioner on bail subject to certain conditions.
13. Hence it is directed that the petitioner shall be released on bail subject to the following conditions:-
1. The petitioner shall deposit a sum of Rs.1,00,000/- in the Court of the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi, as security;
2. The petitioner shall produce two local sureties in the sum of Rs.1,00,000/- each to the satisfaction of the learned Additional Chief Metropolitan Magistrate.
3. During the period of trial of the case, the petitioner's passport shall remain with the respondent unless otherwise directed by the Trial Court.
4. The petitioner shall not leave the limits of N.C.T. of Delhi without the prior permission of the Trial Court.14
5. The petitioner shall report to the Station House Officer, Police Station Chitranjan Park, New Delhi on every Monday at 11.00 A.M."
Drawing inspiration from all the above decisions Sri Kabir points out that the fact that the petitioner is a foreign Bangladeshi national is not a taboo for the Court to consider the grant of bail with appropriate conditions. He submits that in all the above cases the further detention of the foreign national was not found to be necessary and the different Hon'ble Courts were pleased to specify appropriate conditions on the said foreign national for them to avail the privilege to bail.
Sri Kabir also takes this Court through the documents annexed to CRM 7665 of 2014 to show that there is correspondence between the Indian and the Bangladeshi authorities on the subject of repatriation of the present petitioner to her native country, Bangladesh. Relying on the said documents Sri Kabir points out that the same are bonafide government documents and do not create the impression that the petitioner is a long wanted fugitive from law. Sri Kabir makes the further submission that the Visa of the child of the petitioner is still in force and there is a crying need for a sucking child barely two years old to be united with his mother. On all the above grounds Sri Kabir prays for bail. 15
Per contra Ms. Fariah Hossain, Ld. Counsel for the State opposite party, with equal force submits as follows:-
1) That there is no specific instruction and/or information from the Investigating Officer about the presence of the child;
2) The prescriptions attached to the petition being CRAM 7665 of 2014 pertain to treatment in the year 2013, i.e. during the period when the Visa was valid.
There is no proof emanating from the documents on record that the treatment is continuing.
3) Pg.37 of CRM 7665 of 2014 is a letter addressed by the father of the petitioner to a Senior Secretary in the Home Affairs department of the Bangladeshi government at Dhaka. From the contents of the said letter it shall transpire that the petitioner left for India with valid documents for the purpose of travel and tourism. At the end of her travel period she could not return to Bangladesh because of complications arising out of expiry of her Visa. The trigger for her detention was Uttarpara P.S. Case no.472 of 2013 dated 20th October, 2013 under Section 498A/406/494/506 of the Indian Penal Code.
Therefore, the plea of the petitioner that she came to India on account of treatment of her child is suspect as the document at pg.37 of the CRM shows that 16 she arrived in India for alleged travel and tourism purpose and was picked up during the course of investigation in another case.
4) A comparison of the document at pg.37 of the CRM (supra) with the First Information Report lodged in respect of the present case u/s 14 of the Foreigners Act appearing at pg.33 of the said CRM would reveal that the stand of the petitioner is inconsistent and worthy of disbelief. It shall be apparent from the First Information Report in the present case that the petitioner failed to reveal her identity before the Investigating Officer with alacrity and, her real identity, passport, visa and other details could be gathered only after a sustained interrogation. In such view of the matter enough mensrea can be attributed to the petitioner for deliberately acting in violation of the Foreigners Act.
5) Release of the petitioner on bail without the Court being appropriately convinced of the period and purpose of her visit as well as the status of her child shall set a very wrong precedent in respect of dealing with similar cases of Bangladeshi nationals arriving from across the border.
6) Reliance is placed on Janarajan alias Krishnamurli Vs. State of Tamil Nadu decided by an unreported decision of the Hon'ble Madras High Court which, at paras-7 and 8 read as follows :- 17
"Further he has referred to Sections 3 and 14(b) of the Foreigners Act, 1946 and Order 3(1) and (2) of the Foreigners Order, 1948 to show that since the petitioner entered into the territory of India without a valid passport or visa and that too in violation of the permission regarding point of entry into the country, he has been prosecuted.
Further he has submitted that the foreigners, like the petitioner, when
convicted are likely to be deported after serving the sentence in accordance with law and he has referred to the decision Bisharat Ali Rajput v. Union of India, 2003 (12) SCC 215, in support of such contention. Similarly, even otherwise persons coming to India without passport, visa, etc. have to be identified, detained and deported from the country and since the petitioner has no legal right to stay in the country without valid passport, visa, he cannot be enlarged on bail. He has cited the decisions A.I.Lawyers Forum for Civil Liberties v. Union of India, and A.I.Lawyers Forum for Civil Liberties v.
Union of India, in support of such
contentions.
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8. A careful, consideration of the
submissions made by the learned Counsel for the petitioner as well as the learned Counsel for the intervener and that of the learned Government Advocate (Criminal side), in the light of the principles of law enunciated in the decisions cited above, this Court is of the view that since a prime facie case has been made out against; the petitioner for violation of the said provisions of law, he has no legal authority to seek for bail in this case. Further, as has been rightly contended by the learned Counsel for the intervener, if bail is granted, he cannot stay in India even for a single day without a valid passport, visa, etc. and therefore this Court is of the considered view that he has to await the result of the trial of the said case against him."
Ms. Hossain therefore argues that the sub-stratum of facts of the present case inexorably raise disturbing doubts with regard to the presence of the petitioner and her conduct in India even after the validity of her Visa had expired nearly one year back on the 14th of July, 2013. On the basis of such disturbing doubts it is not possible to envisage the removal of the petitioner from the surveillance of a Correctinal Home. Ld. Counsel 19 accordingly submits that this is a fit case for denial of bail.
Sri Rajdeep Majumder, Ld. Counsel, who was requested to act as amicus curiae, submits that this Court should be careful in examining the factual aspects of the matter prior to considering whether the petitioner can qualify for bail. He further submits that charge sheet has been filed in this case under the Foreigners Act and, admittedly the petitioner, if granted the privilege of bail shall be required to stay without a Visa passport till the trial is over. Such a situation is not contemplated in law.
Sri Majumder points out that it is necessary for this Court to be alive to the problem of the stay of nationals from other countries, including Bangladesh in India illegally for extended periods and for unknown purposes beyond the period of the expiry of their passports or visas.
Heard the parties. Considered the materials on record.
After giving anxious consideration to the conduct of the petitioner and to the charge against her under Section 14 of the Foreigners Act, this Court finds that the petitioner was admittedly in knowledge of the fact that her Visa in support of her stay in India expired in 2013. She was illegally staying in the country for nearly six months before being detained on 20th January, 2014. It is further noticed by this Court that, according to the Investigating Officer's report the petitioner failed to give 20 correct particulars initially regarding her identity on the date of her detention, i.e. 20th of January, 2014. This Court also could not be enlightened by the State on the status of the child of the petitioner reportedly on treatment in India in spite of strenuous assertions on that count by the Ld. Counsel for the petitioner.
It is co-incidental that the petitioner came to be detained in connection with another case being Uttarpara P.S. Case no.472 of 2013 failing which she would have continued her stay without authority of law in the country.
On the other hand, the only charge against the petitioner is u/s 14 of the Foreigners Act. From the materials on record it has been brought to the notice of this Court that the petitioner is not accused of committing any other illegal act/acts.
It is also a matter of record that charge sheet in respect of the offence u/s 14 of the Foreigners Act has been filed and the detention of the petitioner for the purpose of investigation is not a necessity.
The only requirement in law now is the presence of petitioner during trial.
The other difficulty pertains to the petitioner remaining on bail without a valid Visa. However, her passport admittedly is valid till the year 2017.
This Court respectfully notices the ratio of the decision in Nagendra Vs. King Emperor reported in AIR 21 1924 (CALCUTTA) pg.476 to the effect that bail is not to be withheld as a punishment and the object of bail is to secure the attendance of the accused at the trial.
This Court also notices the observations of the Hon'ble High Court of Delhi in the matter of Lambert Kroger Vs. State (supra) that although the possibility of fleeing from trial may be more in the case of a foreign national it cannot be said that an accused cannot be granted bail merely because he is a foreign national. The Hon'ble High Court of Delhi further observed that there is no law which authorizes or permits discrimination between a foreign national and Indian national in the matter of granting bail and, the Court can impose different conditions to ensure that the accused will be available for facing trial.
This Court is also not oblivious to the fact that the father of the petitioner has represented before the appropriate government in connection with her detention although, as Ms. Hossain rightly points out the reason given by her father of her visit to India is on account of travel and tourism and not on account of the treatment of her child, as addressed by the Ld. Counsel for the petitioner. Pursuant to such representation of the father of the petitioner the two governments have exchanged correspondence on the issue of her repatriation.
The above noted documents being on record read with validity of her passport and the fact that she entered 22 India on a valid Visa, affords a semblance of identity to the petitioner. The difficulty of her being released on bail in the absence of a valid Visa can be met by directing the Foreigners Regional Registration Officer to endorse the Visa/travel document of the petitioner prior to her release from jail as also directed by the Hon'ble High Court at Kerala in the Italian Marines' case (supra).
Therefore, this Court is inclined to afford the privilege of bail to the petitioner pending her trial. However, this Court grants the privilege of bail to the petitioner only on fulfillment of the following conditions:-
1) That the petitioner will find bail on furnishing a bond of Rs. 1,00,000 of two sureties of Rs.50,000 each, one of whom must be a local surety, to the satisfaction of the Ld. A.C.J.M., Serampore, Hooghly;
2) The Foreigners Regional Registration Officer is directed to endorse the Visa/travel document of the petitioner prior to her release from the Correctional Home and, such endorsement can carry a limited validity co-terminus with the completion of her trial. The Superintendent of the Correctional Home where the petitioner is currently lodged shall ensure that the petitioner is released only on proper endorsement of her Visa/travel documents.23
3) The petitioner shall surrender her passport in the Court of the Ld. A.C.J.M., Serampore, Hooghly and, shall report her place of residence both before the Ld. A.C.J.M., Serampore, Hooghly and the local Police Station. The petitioner and the local surety shall not leave the jurisdiction of the Ld. A.C.J.M., Serampore, Hooghly without the permission of the Court.
4) The petitioner shall report her presence before the local police station every week.
CRM 7665 of 2014 is thus disposed of.
There will be, however, no order as to costs.
Before parting with the matter this Court puts on record its deep appreciation of the assistance rendered by the Ld. Amicus Curiae.
Urgent certified photocopies of this order, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)