Isabella Mariam

The High Court of Punjab and Haryana Single Bench of Justice Anoop Chitkara ordered the release on bail of a foreign national accused of offences under the Indian Penal Code and the Foreigners Act, 1946. The Court directed that the petitioner, who had been in pre-trial custody for more than six months, be released subject to furnishing bonds or deposits as determined by the trial court. It further clarified that in the event the accused is unable to furnish sureties or surety amounts, she may be released on personal bonds within a stipulated period, thereby ensuring no further unlawful incarceration.

The proceedings arose out of a criminal case registered through an FIR dated 24 November 2023 at Police Station Faridabad, District Faridabad, under Sections 420, 467, 468, 471 of the Indian Penal Code, 1860, and Section 14-A of the Foreigners Act, 1946. The petitioner, a female foreign national, was alleged to have entered India without legal authorization and to have fraudulently obtained various government identity documents.

Also Read: Orissa High Court: Compassionate Appointment To Be Considered Under 1990 Rules, Delay By State Cannot Defeat Claim

The allegations, as recounted by the State in its reply, were based on a complaint filed by Santosh Sharma. The complainant alleged that her son, Yash alias Chotu, was induced by the petitioner, a resident of Bangladesh. According to the complaint, Yash introduced the petitioner to his family and disclosed their relationship, which was not accepted by the complainant. It was further alleged that Yash handed over cash and gold jewellery belonging to the complainant to the petitioner, who subsequently misappropriated the same.

The complaint also accused the petitioner of residing in India without valid legal documents. She was alleged to have prepared an Aadhaar Card, Voter Card, and PAN Card using forged documentation and to have assumed a new identity under the name of Shikha Gaur. Acting on these allegations, the police registered the FIR and commenced investigation.

The petitioner was arrested on 5 February 2025. During interrogation, she reportedly confessed to her role and made a disclosure statement. Based on this statement, the police recovered a photocopy of her Aadhaar Card, Passport, and Identity Card of Bangladesh. The petitioner was formally named in the FIR, and after completion of the investigation, a charge-sheet was filed against her on 5 April 2025 before the Chief Judicial Magistrate, Faridabad. The matter was fixed for consideration of charges on 26 June 2025.

The custody certificate dated 18 August 2025 confirmed that the petitioner had been incarcerated for a period of six months and fourteen days and further confirmed that she had no prior criminal antecedents. This prolonged custody was cited by the petitioner’s counsel in support of the bail plea, arguing that continued pre-trial detention would result in irreparable harm and injustice to the accused and her family.

The petitioner’s legal counsel filed an application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking regular bail. It was contended that the allegations, though serious, did not justify continued pre-trial incarceration. The State opposed the bail application, reiterating the allegations contained in the reply and emphasizing the petitioner’s foreign status and alleged misuse of forged documents.

The Court took note of the fact that the petitioner had already spent more than six months in custody. Given the maximum punishment prescribed for the invoked provisions and the absence of any prior criminal record, the Court considered whether continued detention was warranted in light of constitutional and statutory safeguards.

The State’s reply highlighted that the petitioner was a foreign national without valid documentation. It also stated that her actions involved forgery, misrepresentation, and misuse of Indian identity instruments, thereby raising questions not only of criminal law but also of compliance with immigration control. However, the trial had not yet commenced, and charges were still at the consideration stage.

The Court weighed these factors against the legislative intent expressed in the provisions of the BNSS, which aim to avoid unnecessary pre-trial incarceration, particularly for first-time offenders and those not charged with offences punishable with death or life imprisonment. The provisions invoked included Section 479 of BNSS, which allows for bail once a certain proportion of maximum possible imprisonment has been served in pre-trial custody, and Section 487 of BNSS, which governs the procedural aspects of release on bail.

Justice Anoop Chitkara recorded the observations based on constitutional provisions, statutory safeguards, and Supreme Court precedents. The judgment stated: “Given the penal provisions invoked vis-à-vis pre-trial custody, coupled with the prima facie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justification for further pre-trial incarceration at this stage.”

The Court clarified the constitutional rights of foreign nationals, referring to precedent: “The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of this country. It was held by the Constitution Bench in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, (1955) 1 SCR 1284: (AIR 1955 SC 367), that the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion.”

On the issue of bail conditions imposed upon foreigners, the Court recorded: “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.”

The judgment also cited the Supreme Court’s ruling in Guddan alias Roop Narayan v. State of Rajasthan concerning onerous bail conditions: “The conditions of bail cannot be so onerous that their existence itself tantamounts to refusal of bail. Any other accused in a similar circumstance at this point would not be in custody, however, the present Appellant, because of the conditions imposed, has not been able to leave the languish of jail. To keep the Appellant in jail, that too in a case where he normally would have been granted bail for the alleged offences, is not just a symptom of injustice, but injustice itself.”

The Court further observed: “Once a prisoner is released on bail, any custody of the said prisoner beyond the period necessary to complete the procedures for a formal release from prison, would be illegal, if delayed on flimsy grounds, systemic mediocrity, or bureaucratic red tape.”

The Court also emphasized compliance with earlier directions issued by the Supreme Court in SMWP (Criminal) No. 4/2021; 2023 LiveLaw (SC) 76: “If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/relaxation.”

Further, the Court incorporated the ruling of the Division Bench in Amit Rana v. State of Haryana, CRM-18469-2025 [Decided on 05.08.2025], CRA-D-123-2020. The relevant observation was quoted: “To ensure that every person in judicial custody who has been granted bail or whose sentence has been suspended gets back their liberty without any delay, it is appropriate that whenever the bail order or the orders of suspension of sentence are not immediately sent by the Registry, computer systems, or Public Prosecutor, then in such a situation, to facilitate the immediate restoration of the liberty granted by any Court, the downloaded copies of all such orders, subject to verification, must be accepted by the Court before whom the bail bonds are furnished.”

The Court clarified that any such observations were not to be construed as opinions on the merits of the case, and that the trial court should not advert to them while adjudicating the charges.

The High Court directed that the petitioner be released on bail subject to furnishing appropriate bonds to the satisfaction of the concerned court. The judgment recorded: “Provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above, subject to furnishing bonds to the satisfaction of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate, with or without sureties, with maximum bond amount not to exceed INR 10,000.”

The Court permitted the option of providing a fixed deposit instead of surety. It stated: “Instead of surety, the petitioner may provide a fixed deposit of INR 10,000, with a clause that the interest shall not be accumulated in FD, either drawn from a State-owned bank or any bank listed on the National Stock Exchange and/or Bombay Stock Exchange, in favour of the Chief Judicial Magistrate of the concerned Sessions Division; or a fixed deposit made in the name of the petitioner, with similar terms and with endorsement from the banker stating that the FD shall not be encumbered or redeemed without the permission of the concerned trial Court, or until the surety bond has been discharged.”

Also Read: Supreme Court Orders SIT Inquiry | Vantara Wildlife Centre’s Affairs and Animal Acquisition to Be Examined Under Wildlife (Protection) Act and CITES

The Court also addressed the potential difficulty in furnishing bonds due to the petitioner’s status as a foreigner: “The investigation conducted so far indicates that the petitioner might not be a citizen of India, and as such might not be able to procure sureties, or amount to furnish personal bonds, or amount in lieu of surety(s). By foreseeing such a likely possibility, because the petitioner’s liberty is no longer curtailed in the above captioned case, in the event of non-furnishing of the bonds, the petitioner cannot be kept in jail for an indefinite period.”

Finally, it clarified:“Considering the nature of allegations, sentence provided, pre-trial custody, and the petitioner being allegedly an undocumented female migrant, it is clarified that if within seven days of the availability of this order, the petitioner is unable to provide any sureties or surety amount, or bond amount, in such situation, by importing the legislative intent of proviso and explanation to S. 478(1) of BNSS, it shall be permissible for the concerned Magistrate/Court to release the petitioner on her personal bonds.”

Advocates Representing the Parties

For the Petitioner: Mr. N.S. Sodhi, Advocate

For the Respondents: Mr. Atul Gaur, Additional Advocate General, Haryana

Case Title: Farida Praveen alias Shikha Gaur v. State of Haryana

Neutral Citation: 2025:PHHC:109559

Case Number: CRM-M-22654-2025

Bench: Justice Anoop Chitkara