'Cannot Be Kept In Custody For Indefinite Period': P&H High Court Grants Bail To Undocumented Migrant In Fraud Case On Personal Bond Or FD

The Punjab and Haryana High Court has granted bail to an undocumented female migrant accused in a fraud case, allowing her release on the condition of furnishing bail bond to maximum amount of ₹10,000 in the form of fixed deposit or on personal bond if she fails to arrange surety within 7 days.

It was alleged that Farida Praveen is an illegal migrant and prepared Aadhar Card, Voter Id and PAN Card on the basis of fake documents and also changed her name as Shikha Gaur. Hence, the FIR was registered under 420, 467, 468, 471 IPC and Section 14-A of the Foreigners Act 1946.

The Court highlighted that, 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.

"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," it further said.

Considering the"the fundamental right guaranteed in Article 21 of the Constitution" the nature of allegations, sentence provided, pre-trial custody, and that the petitioner being allegedly an undocumented female migrant, and is not stated to be under custody in any other FIR/Case," It 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, it added.

The Court noted that she has been in custody for 06 months & 14 days, and the other factors peculiar to the case, there would be no justification for further pre-trial incarceration at this stage, it added.

The bench said that, before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, the surety is capable of producing the accused.

"However, 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," it added.

Referring to Frank Vitus v. Narcotics Control Bureau, the Court said, Without intending to dilute any statutory procedures or any of the directions of the Supreme Court mentioned above, it has also to be synergized that 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 referred to Section 479 of BNSS which provides for bail, "if after filing of the police report under section 193 BNSS, during the pendency of the trial, except when punishable for death or life, has undergone detention, for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on bail and one third in case of the first time offenders, and the provision also applies to various other situations."

In the light of the above, the plea was allowed.

Mr. N.S. Sodhi, Advocate for the petitioner.

Mr. Atul Gaur, AAG, Haryana.

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

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