India: Bail, A Matter Of Right: Not To Be Denied On The Ground Of Nationality

The Constitution of India is the supreme law of the land. The Fundamental Rights are available to all the "Citizens" of the country but a few of them are also available to "persons". While Article 14, which guarantees equality before law or the equal protection of laws within the territory of India, 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/ her the benefit of the provisions of bail. There is no discrimination or differentiation in granting bail to a foreign national in India.

The Personal liberty is of utmost importance in our constitutional system recognized under Article 21. Deprivation of personal liberty must be founded on the most serious considerations relevant to welfare objectives of the society as specified in the Constitution. The Apex Court of the Country has laid down in its judgments that

"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.

"Bail" has been defined as:

"The process by which a person is released from custody"

-Webster's Third New International Dictionary

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 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. But the rule does not apply to a person under 16 years of age, a woman, a sick or infirm person. 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.

The Indian courts have umpteen number of times held that merely because the accused is a foreign national he cannot be deprived of the benefits of bail. The Hon'ble High Court of Delhi had observed that "Law does not permit any differentiation between Indian Nationals and Foreign citizens 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."

In the case of Mohammed Kunju , 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 of India 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 the condition to surrender his passport as a measure to prevent him to escape out of India. Thus the Indian Courts while granting bail to a foreign national firmly believes in imposing certain conditions like surrender of passport, bail bonds, attendance before 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.

The Hon'ble High Court of Delhi in the case of Lambert Kroger vs Enforcement Directorate while allowing the bail application of the foreign national made an observation that "Admittedly the petitioner 's passport is with the respondent and ordinarily the petitioner cannot leave the country without the passport. Though the possibility of fleeing from trial may be more in the case of foreign national. It cannot be said that an 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 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."

In Sartori Livio's case the counsel for the state raised an argument stating that the petitioner is an Italian national and if he is released on bail, there is every likelihood that he may flee from justice. The Hon'ble High Court by relying on the judgment in Nasimjon Komlov vs. Customs in CRLM (M) No. 2038/2000 observed that the argument must be rejected.

The Court said that "it would be a shame 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."

The Court further held that just because a foreign national is involved, it does not mean that he is to be denied the benefit of bail. In this case the Court released the petitioner on bail on furnishing a personal bond in the sum of RS.25,000/- with one surety of the like amount to the satisfaction of the concerned trial court. The Court also directed the petitioner to deposit his passport in the custody of the I.O. and not to leave the National Capital Region without the prior permission of the concerned court.

In Haroub Slaum Sleyoum , the Hon'ble High Court of Delhi reiterated the law on bail to a foreign citizen.

The Court observed that "While considering an application for grant of bail, various factors are to be taken into consideration, such as, the nature and seriousness of the offence, the stage of investigation, a reasonable possibility of the presence of the accused not being secured at the trial, a reasonable apprehension of evidence being tampered with or such other circumstances which may be brought to the notice of the Court which might hamper proper investigation into the matter" The Court after considering the facts of the case held that "I find force in the submission of learned counsel for the petitioner that merely because the petitioner is a foreign national this by itself cannot be a ground for declining the bail. No special circumstances have been shown to this Court to show that the petitioner is likely to interfere with course of justice nor any material to show that there are strong reasons that the petitioner is likely to leave the country. Accordingly, I have considered it a fit case to grant bail and release the petitioner."

In a latest case, the Court of Session's Judge for Greater Bombay allowed the bail application of a Chinese national whose bail application was earlier rejected by the Metropolitan Magistrate, 22nd Court Andheri Mumbai on the ground that the applicant being a foreign national shall not be granted bail as it would be difficult to secure her presence. The Learned Session's judge allowed the application by imposing certain conditions like furnishing of bail bond, not to leave India more specifically Mumbai without In a latest case, the Court of Session's Judge for Greater Bombay allowed the bail application of a Chinese national whose bail application was earlier rejected by the Metropolitan Magistrate, 22nd Court Andheri Mumbai on the ground that the applicant being a foreign national shall not be granted bail as it would be difficult to secure her presence. The Learned Session's judge allowed the application by imposing certain conditions like furnishing of bail bond, not to leave India more specifically Mumbai without prior written permission from the Court, reporting before the Chinese Consulate once in a week and also to the IO.

CONCLUSION:

The above discussion clearly throws light on the fact that the normal rule is "BAIL NOT JAIL". The Indian Legal system does not create any discrimination or differentiation between Indian Nationals and foreign nationals when it comes to granting bail. The Indian Courts have in catena of judgments rejected the "foreign national" plea and have allowed the bail applications of the foreign nationals by imposing certain conditions in order to secure their presence during the course of trial. The fundamental right to "equality before law" provided by the Constitution of India is not denied to the foreign nationals merely on the ground of they being non citizens of this country. For Indian legal system the "right to personal liberty" of foreign nationals is equally important as that of the Indian nationals and the same is curbed when the security of the society is put at stake.

Footnote

1. The Chairman, Railway Board & Ors. Vs. Mrs. Chandrima Das & Ors. (2000)2SCC465

2. Babu Singh and Ors. v. State of Uttar Pradesh MANU/ SC/0059/1978 : 1978CriLJ651

3. Section 436 (1) of the Code of Criminal Procedure, 1973

4. Commentary on the Code of criminal procedure by Ratanlal & Dhirajlal, 19th Enlarged edition 2010.

5. Anil Mahajan vs. Cojmmissioner of customs & Anr, 2000 CriLJ 2094.

6. Mohammed Kunju and Another v State of Karnataka, AIR 2000 SC 6

7. Lambert Kroger vs Enforcement Directorate on 28 February, 2000 85 (2000) DLT 62

8. Sartori Livio vs. The State, 118 (2005) DLT 81

9. Haroub Slaum Sleyoum vs. Shri Abdul Qadir

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