The Allahabad High Court on Tuesday (9-June-2020) granted interim bail to six citizens of Bangladesh, accused of violating their visa condition by attending the Tablighi Jamaat congregation at Nizamuddin in New Delhi in the month of March and then going to Lucknow without medical examination amidst the serious apprehension of spreading coronavirus during the lockdown.
Justice Attau Rahman Masoodi of the Lucknow Bench of the Allahabad High Court was hearing a bail application filed by Mohammad Shafiullah and others involved in FIR/Crime No. 259/2020, under Section 188 IPC, Section 3 Epidemic Diseases Act, 1897, Section 56 Disaster Management Act, 2005 and Section 13/14B/14C Foreigners Act, 1946, P.S. Madiyaon, District Lucknow.
Court acknowledged the fact that the accused applicants are the foreign nationals from Bangladesh and that it is implicit from the provisions of Part III of the Constitution of India that protection of Article 14, 20 and 21 is equally available to foreign nationals.
Further, the Court also observed that
"Article 20 of the Constitution of India guarantees equal protection to foreign nationals in the matter of trial in criminal cases and Article 21 guarantees protection of life and personal liberty in equal measure."
In the Bail order, while noting various circumstances under which the applicants were arrested and complete facts of the case, Court observed that in an identical situation, the Lucknow Bench of Allahabad High Court has already passed an order in Bail Application No. 2898 of 2020 on 2.6.2020 [Sagynbek Toktobolotov & Ors. v. State of U.P.] enlarging the similarly situated accused persons on bail against whom the F.I.R. under the same very penal provisions was registered.
Notably, the prayer for bail in the present matter was granted looking to the reasoning assigned in the order dated 2.6.2020. In Sagynbek Toktobolotov & Ors. v. State of U.P., while granting bail to six members of Tablighi Jamaat (all of them were citizens of Kyrgyzstan), the Court had stated that,
"…the applicants who have prayed for bail, even though are foreign nationals, cannot be deprived of their personal liberty except in procedure established by law and that they were also entitled to equal protection of law and equality before the law."
6 out of 7 applicants granted interim bail
7 applicants had moved bail applications before the Court, however, the prayer for bail made by the accused applicant no. 6 (Akalli Nahar @ Aklimun Nahar), whose Visa has already expired on 10.4.2020 was put on hold till the next date of listing, whereas the other accused persons i.e. accused applicants no. 1 to 5 and 7 have been released on interim bail for the period their Visas remain operative or until further orders, whichever is earlier (Some have visa validity till July 2020, while one has till February 2021).
However, it has been left open for applicant no. 6 to apply for an extension of Visa in the manner as may be permissible under the law through the jail authorities, who have been directed by the Court to transfer any such application to the Ministry of External Affairs, Government of India for the same being placed before the High Commission of Bangladesh.
As one of the bail conditions, the accused applicants no. 1 to 5 and 7 have been asked to reside at the place mentioned in the tourist Visas or as informed to the competent authority in Form-C and not leave the place without prior written permission of the Court and furnish an undertaking to the said effect. They will be released on their furnishing a bail bond each and one reliable surety to the satisfaction of the court concerned.
Also, they will have to keep the nearest Police Station informed about their whereabouts every fortnight. The applicants have been given the liberty to offer prayers according to their faith but the religious congregations contrary to the model guidelines issued by the Central or State Government during the period of Pandemic i.e. Covid-19, may not be joined by them.
Notices Issued to High Commission of Bangladesh & Ministry of External Affairs, Government of India
Considering the legal issues involved in the stay of the applicants in India on expiry of their visa and other issues, the High Court ordered that the High Commission of Bangladesh be issued notice (through Ministry of External Affairs, Government of India,) and the Court expected that the Commission will assist the Court for protection of the rights of their nationals through a counsel of their choice as well as for the formulation of conditions of bail.
Court also issued notice to the Secretary, Ministry of External Affairs, and Government of India to enter into necessary communication with the Government of Bangladesh through its High Commission according to the treaty of extradition operative, if any, in this regard.
Interestingly, Court also left it open for the Government of India through Ministry of External Affairs, New Delhi and Government of Bangladesh to decide the fate of the criminal cases otherwise than by way of a judicial trial.
With a note of caution, Court further added that this shall solely depend upon the examination of offences and material by the respective governments and may not be a matter for judicial scrutiny by this Court.
The Ministry of External Affairs has also been tasked to apprise the Court as to how the participation of the present applicants can be secured for conduct and conclusion of the trial, if for any reason, the same does not conclude within the period for which the tourist Visas granted by the Government of India remain operative.
'Applicants are at liberty to receive disclosed financial support'
For the period of stay in India in terms of the Visas, the applicants have been given the liberty to receive disclosed financial support from their relatives in Bangladesh or from any citizen or any voluntary organisation in India.
However, Court also asked the Central/State Government through the Ministry of External Affairs, after due consultation with the Government of Bangladesh to provide necessary financial help to the accused applicants for sustaining their life in a dignified manner inclusive of the medical aid, in the event, applicants run short of financial support from the above sources.
As per the Court's order, the applicants will have to surrender before the court concerned immediately before the expiry of Visa, subject to further orders which may be passed by this Court. The bench fixed July 16 for next hearing to consider the Bangladeshis' plea for regular bail.
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