Accept personal bonds if foreign nationals can’t furnish sureties: HC

Undocumented Bangladeshi and other foreign nationals facing trial in India cannot be left to languish in jail merely because they are unable to furnish sureties.

The Punjab and Haryana High Court has clarified that trial courts are empowered to release such prisoners on personal bonds alone after holding that their continued detention—once bail has been granted—will be unconstitutional and violative of Article 21.

The ruling came on a petition filed by an undocumented woman migrant accused of cheating and other offences in a case registered at a police station in Faridabad under Sections 420, 467, 468, 471 of the IPC and the Foreigners Act.

The Bench observed that she had been in custody for over six months. “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, at the same time, observed the investigation suggested she might not be an Indian citizen. As such, she might not be able to procure sureties, amount to furnish personal bonds, or amount in lieu of sureties.

“By foreseeing such a likely possibility – because the petitioner’s liberty is no longer curtailed in the event of non-furnishing of the bonds – the petitioner cannot be kept in jail for an indefinite period,” the Bench held.

Adverting to the legal position, the court added: “Without intending to dilute any statutory procedures or any of the Supreme Court directions, it has also to be synergised 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 added Section 479 of the BNSS made it clear that an accused—except in cases punishable with death or life imprisonment—must be released on bail once the police report under Section 193 had been filed and the trial was pending, if they had already spent half of the maximum possible sentence in custody. For first-time offenders, the limit was one-third. The provision also covered certain other situations.

Referring to fundamental right under Article 21 of the Constitution, along with judicial precedents and the legal provisions, the Court asserted the Magistrate/Court concerned might release her on personal bond, considering the nature of allegations, the prescribed sentence, the period of pre-trial custody, and the fact that the petitioner was allegedly an undocumented woman migrant not shown to be in custody in any other case.

The direction would be applicable if the petitioner is unable to furnish sureties, surety amount, or bond amount within seven days of the order.