Srinagar: The High Court of J&K & Ladakh has held that in matters of bail, law does not authorize any discrimination between a foreign and an Indian national.
The ruling was pronounced in a petition by Shagufta Bano, a Mayanmar national married off to Bashir Ahmad Wani of Paharthan Budgam 13 years ago.
Bano had been arrested in 2022 by J&K Police under Section 370 of IPC (illegal confinement with sexual abuse) and Section 14A and 14C of Foreigners Act, 1946 (staying in India without valid documents).
She along with 13 others including some local men and non-local women were detained from Dolipora Paharthan Budgam. However, she was released on interim bail by Judicial Magistrate, which was later on made absolute.
The police filed a charge-sheet against the accused, including Bano, in the Additional Sessions Court, Budgam.
The trial court in August 2023 rejected the bail application of the accused and suo motu cancelled the bail granted in favour of the petitioner lady and others and remanded them to the Central Jail, Srinagar.
Aggrieved Bano petitioned before the High Court saying “the trial court improperly exercised its power without issuing any prior notice, thereby cancelled the petitioner’s bail and remanded her into judicial custody, as such, the impugned order is unsustainable and bad in the eyes of law”.
She submitted “the trial court, in ordering the judicial custody of the petitioner, failed to appreciate that neither the rigour of Section 437 CrPC is applicable to the petitioner nor is there any direct or indirect evidence implicating her in the alleged offences”.
She also averred that the trial court made an observation that the accused persons are involved in serious offences related to human trafficking and their sexual exploitation and prostitution. “These (observations) are without any basis or substantial evidence,” she said.
The counsel representing the police said Bano is originally a resident of Burma and “the accused were involved with people like Ayaz Ahmed, who facilitated bringing women from Burma without proper documentation for prostitution, in exchange for large amounts of money”.
Adjudicating the petition filed by Bano, Justice Sindhu Sharma held “it is well settled that law does not authorize or permit any discrimination between a foreign national and Indian national in the matter of granting bail and the same has to be considered on the facts and circumstances of each case. The court can impose different conditions which may be necessary to ensure that the accused will be available for facing trial but it cannot be said that the accused will not be granted bail because of being a foreign national”.
The petitioner was enlarged on bail upon furnishing a personal bond and two sureties in the amount of ₹2,00,000 each, one of the sureties shall be the petitioner’s husband, Bashir Ahmad Wani, and another one to the satisfaction of the trial court.
