Khadija Noor v. The State Of Bihar

Judgment

2. The State Of Bihar Bishan Das s/o Late Desh Raj, R/o Battalion Commander, SSB Bhithamore, P.S.-Sursand, District-Sitamarhi. ... ... Opposite Party/s ====================================================== Appearance : For the Petitioner/s :

Mr. Yogesh Chandra Verma, Sr. Adv. Mr. Ayush Kumar, Adv. Mr. Mohit Shriwastava, Adv. Mr. Adarsh Singh,Adv. Mr. Alok Kumar, CGC, UOI For the Opposite Party/s : ====================================================== CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL JUDGMENT Date : 03-03-2025 Heard Mr. Yogesh Chandra Verma learned senior counsel for the petitioner and learned counsel for O.P. No. 2.

2. That present criminal miscellaneous application is being filed for quashing of one of the condition of bail, as imposed through order dated 18.10.2022, as passed in B.P. No. 1432 of 2022, by learned Addl. Sessions Judge XII, Sitamarhi, arising out of Sursand P.S. Case No. 401 of 2022, registered for the offences under Section 467, 468, 471, 420, 34 of the IPC and 14 of Foreigners Act, 2004, wherein Patna High Court CR. MISC. No.20969 of 2024 dt.03-03-2025 learned trial court imposed a condition that “both the bailors should be local resident of Sitamarhi”.

3. Petitioner admittedly a Pakistani citizen and, therefore, she is in custody since 08.10.2022, even after granting the bail as aforesaid in want of local bailors.

4. Mr. Y.C. Verma, learned senior counsel appearing for the petitioner submitted that the petitioner entered into the territory of India to solemnize her marriage with one Mr. Sayed Hyder, son of Late Sayed Baba Jani, R/o 19-5-28/10/A, Kishan Bagh, Chirag Ali Nagar, Bahadurpura, district-Hyderabad, State- Andhra Pradesh. But while entering to Indian territory through Indo-Nepal border, she was apprehended and booked under aforesaid provisions of law. It is submitted by Mr. Verma, that Mr. Sayed Hyder who is proposed “groom” of petitioner is ready to stand as a bailor for the petitioner and his one brother or other close family members are also ready to stand as another bailor for petitioner, who are also the resident of Hyderabad and are Indian citizen but due to condition imposed as above they are not in position to stand as bailors for petitioner. Patna High Court CR. MISC. No.20969 of 2024 dt.03-03-2025

5. Mr. Verma, further submitted that certain fundamental rights are even available to foreign citizens and even after granting bail keeping petitioner in jail since last more than 2 years is amounting to violation of her fundamental rights just in want of local bailors. It is pointed out that it is a classical case of territorial and geographical biasness when a citizen of this country residing in Hyderabad is ready to stand as sureties and bailors for this petitioner.

6. In support of his submission, Mr. Verma learned senior counsel took shelter of para no. 33 of the legal report of Hon’ble Supreme Court as available through Moti Ram and Ors. Vs. State of Madhya Pradesh reported in (1978) 4SCC 47 which reads as follows:- “33. To add insult to injury, the Magistrate has demanded sureties from his own district! (We assume the allegation in the petition). What is a Malayalee, Kannadiga, Tamil or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk? He cannot have sureties owning properties in these distant places. He may not know any one there and might have come in a batch or to seek a job or in a morcha. Judicial disruption of Indian unity is surest achieved by such provincial allergies. What law prescribes sureties from outside or non-regional language applications? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? This tendency takes many forms, sometimes, geographic, sometimes Patna High Court CR. MISC. No.20969 of 2024 dt.03-03-2025 linguistic, sometimes legalistic. Article 14 protects all Indians qua Indians within the territory of India. Article 350 sanctions representation to any authority, including a court, for redress of grievances in any language used in the Union of India. Equality before the law implies that even a vakalat or affirmation made in any State language according to the law in that State must be accepted everywhere in the territory of India save where a valid legislation to the contrary exists. Otherwise, an adivasi will be unfree in Free India, and likewise many other minorities. This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own homeland. Swaraj is made of united stuff.

7. Mr. Verma learned senior counsel further relied upon legal report of Hon’ble Supreme Court as available through Girish Gandhi Vs State of Uttar Pradesh and Ors. reported in (2024) 8 SCR 561 where he mainly relied upon para 24 and 26 of the case which reads as follows:-

24. Whether it is to get individuals, to stand as a guarantor for a loan transaction or as a surety in a criminal proceeding, the choice for a person is very limited. It will very often be a close relative or a longtime friend. In a criminal proceeding, the circle may get even more narrowed as the normal tendency is to not disclose about the said criminal proceeding to relatives and friends, to protect one's reputation. These are hard realities of life in our country and as a court of law we cannot shut our eyes to them. A solution, however, has to be found strictly within the framework of the law. 26. In the present case, the petitioner is experiencing a genuine difficulty in finding multiple sureties. Sureties are essential to ensure the presence of the accused, released on bail. At the same time, where the court is faced with the situation where the accused enlarged on bail is unable to find sureties, as ordered, in multiple cases, there is also a need to balance the requirement of Patna High Court CR. MISC. No.20969 of 2024 dt.03-03-2025 furnishing the sureties with his or her fundamental rights under Article 21 of the Constitution of India. An order which would protect the person's fundamental right under Article 21 and at the same time guarantee the presence, would be reasonable and proportionate. As to what such an order should be, will again depend on the facts and circumstances of each case.

8. This Court restrain itself to consider the merit of this case as the petitioner already granted bail by the learned trial court.

9. Taking note of the aforesaid factual aspects as the petitioner after granting bail remains in custody for more than 2 years in want of “local bailors” despite of the availability of bailors from other parts of this country, learned trial court/ concerned court is directed to release the petitioner on bail where one of the bailor shall be Mr. Sayed Hyder, son of Late Sayed Baba Jani, R/o 19-5-28/10/A, Kishan Bagh, Chirag Ali Nagar, Bahadurpura, district Hyderabad, State- Andhra Pradesh and the other bailor shall also be the brother of Mr. Sayed Hyder in terms of para 11 of the petition, with following conditions:- (i) Both the bailors are directed to surrender their passport in original before the learned trial court, if they had or to make statement on affidavit that they are not the holder Patna High Court CR. MISC. No.20969 of 2024 dt.03-03-2025 of the Indian Passport, in case, they don’t have it. (ii) Learned trial court must be satisfied with the identity of both bailors as aforesaid through their Adhaar Card, PAN Card and also voter card before accepting the bail bond. (iii) D.G.P. of the State be also informed to direct local SHO to remain vigilant, where petitioner and bailors must report to local police once in a month during pendency of the trial. (iv) Mr. Sayed Hyder, must undertake on affidavit that during pendency of trial, he must keep petitioner with all her dignity, safety and care with him. (v) Mr. Sayed Hyder is directed to ensure the presence of petitioner in the Court as and when required by the court during the pendency of the trial. (vi) In case of any illness of petitioner and also in case of any unforeseen event, Mr. Sayed Hyder must report to local SHO, immediately and also the ld. trial court. (vii) Considering the fact as petitioner is a Pakistani citizen trial court is directed to conclude the trial at Patna High Court CR. MISC. No.20969 of 2024 dt.03-03-2025 its earliest, preferably within one year. (viii) If the occasion arises, trial court upon acquittal or conviction, after completion of sentence (subject to any order of appellate court), must take immediate steps, to deport petitioner from country for Pakistan, in accordance with law.

10. Accordingly, condition imposed as above qua local bailors through order dated 18.10.2022 as passed by learned Addl. Sessions Judge XII, Sitamarhi, passed in B.P. No. 1432 of 2022 is hereby set aside and quashed qua above-named petitioner with all aforesaid observations.

11. Let copy of this order be sent to the learned trial court, without delay. (Chandra Shekhar Jha, J) Sudha/- AFR/NAFR CAV DATE Uploading Date Transmission Date NAFR NA 06.03.2025 06.03.2025