Chandigarh, August 27: The Punjab and Haryana High Court has ruled that undocumented foreign nationals who have already been granted bail cannot be kept in jail indefinitely simply because they are unable to provide sureties. Instead, trial courts are empowered to release such prisoners on personal bonds, the court said, noting that continued detention in such cases would be unconstitutional and violative of Article 21.
The decision came in response to a petition filed by an undocumented woman migrant accused of cheating and forgery in a case registered at a Faridabad police station under Sections 420, 467, 468, 471 of the IPC as well as the Foreigners Act. She had been behind bars for more than six months at the time of the petition.
The Bench remarked that the length of her custody, combined with the nature of the allegations and other case-specific circumstances, did not justify further pre-trial incarceration. “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 order noted.
At the same time, the court acknowledged that the investigation suggested she might not be an Indian citizen. This, the Bench said, created a real possibility that she would not be able to furnish sureties or deposit the bond amount. “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 judges said.
The court also cautioned against delays in releasing prisoners who have been granted bail. “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 Bench observed.
Citing Section 479 of the Bharatiya Nyaya Sanhita (BNSS), the court pointed out that an accused, except in cases punishable with death or life imprisonment, must be released on bail once the police report under Section 193 has been filed and the trial is pending—if they have already spent half the maximum possible sentence in custody. For first-time offenders, the threshold is one-third. The provision, the Bench said, was meant to prevent excessive detention during trial.
Referring to Article 21 of the Constitution and relevant judicial precedents, the court concluded that the Magistrate or trial court could release the petitioner on a personal bond after considering the allegations, the prescribed sentence, the period of custody already undergone, and her undocumented status.
The order directed that if the petitioner was unable to arrange sureties or furnish the required bond amount within seven days, the court concerned would release her on personal bond alone.
