Manipur High Court
Kom 12:14:32 vs The State Of Manipur Represented By The ... on 27 April, 2022
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
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 MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 24 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.
MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021 P a g e | 25
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 MC(Crl.Revn.P.) Nos. 2,3 and 7 of 2021 Ref:- Crl. Rev. Petn. No. 10 of 2021