(PETITIONER IN JAIL)
IN THE HIGH COURT OF JUDICATURE AT PATNA (CRIMINAL
MISCELLANEOUS JURISDICTION)
Cr. Misc. No….......................OF 2024
In the matter of an application under
Section 439 and 440 of the Code of
Criminal Procedure,
And
In the matter of :-
Khadija Noor, aged about 24 years, Female, Daughter of Md. Ishaqak,
Resident of Village- House No.13, Abdullahpur, Street – C Block No. X
Madina Town, P.S.- Susialbad, District- Faislabad, Country: - Pakistan
....................................................................................................Petitioner
Versus
The State of Bihar..................................................................Opposite Party
To,
The Hon`ble Bench of Ms. Seval Jain and Mr. Ayush Amar Pandey,
the Hon`ble Justice of the High Court of Judicature at Patna and his
companion justices of the said Hon`ble Court.
The humble Application on
behalf of the petitioner:
MOST RESPECTFULLY SHEWEATH:-
1. That this Criminal Miscellaneous application is being filed for denial of Regular bail to the
petitioner, who has been made accused in connection with Sursand P.S. Case No.401/2022,
registered for the offences under Section 467/468/471/420/34 of the Indian Penal Code, 1860
and 14 Foreigners Act, 2004.
2. That the prosecution story in short as per the FIR is that on 08/08/2022 at around 1:00 P.M.
the informant namely Raju Ranjan, Company Commander, SSB, Sitamarhi and Vishal Kumar,
Deputy Commander, SSB, Sitamarhi while on duty at the India Nepal border found that 2
Persons (One Male and One Female) were coming from Nepal and entering into Indian
Territory. While entering into the Indian Territory the female was stopped by the officer
Deputy Commander on duty and questioned but she could not answer anything about her
identity. When her Aadhar Card was checked then it was found that her Aadhar card was fake.
On interrogation the girl disclosed her name as Khadija Noor (Petitioner), Citizen of Pakistan
and the person who was accompanying her was Jeevan Kumar Sah who is citizen of Nepal.
One Another person namely Sayed Mahmood who was calling Jeevan Kumar Sah was also
traced and apprehended who was living in Hyderabad and had come to receive Khadija Noor
(Petitioner). Sayed Mahmood had prepared a fake Aadhar Card No. 646899362534 by the
name of Arzoo Baghdayia for the petitioner. Accordingly, Seizure list was prepared at the
place of occurrence.
A true photo/ typed copy of FIR
& Seziure List are being
annexed as Annexure-1 with
this application
3. That the petitioner is not quite innocent and has committed offence as alleged against her and
the allegations against the petitioner is not false, misleading and concocted.
4. That as a matter of fact petitioner has been granted bail by the Additional Sessions Judge XII,
Sitamarhi Vide B.P. No. 1432 of 2022 dated 18/10/2022 imposing a condition that” Both the
Bailers should be local resident of Sitamarhi”. In Mursaleen Tyagi v. The State of Uttar
Pradesh & Anr., Special Leave to Appeal (Crl.) No. 898/2023, the Hon’ble Supreme Court
of India emphasised that bail with onerous conditions can be granted under exceptional
circumstances. Pre-trial detention can be employed when there is a clear threat to society or a
genuine concern that the accused could tamper with evidence or influence witnesses.
5. The Supreme Court in Vaman Narain Ghiya v. State of Rajasthan1, highlighted that the
concept of bail emerges from the conflict between the police power to restrict liberty of a man
who is alleged to have committed a crime, and a presumption of innocence in favour of the
alleged criminal and an accused is not detained in custody with the object of punishing him on
the assumption of his guilt. An accused can be detained before conviction for many reasons.
Also, under the Code, the discretion to cancel bail can be exercised at the instance of either the
accused, public prosecutor, the complainant or any other aggrieved party.2
The argument presented for denying the bail of the accused are as follows:-
6. That the accused is charged under Section 467 and 468 of IPC and section 468 of the IPC falls
under the non-bailable offence. In the case of Bhanubhai Sharma v. Vikas Kalyanam3, it was
observed that ‘The offence is under Section 468 is the only non bailable offence under IPC
which was added subsequently. The offence under Section 468 of IPC relates to offence of
forgery for the purpose of cheating.’
7. That the present case comes under cogent and overwhelming circumstances. The fact that the
Pakistani citizen possessed Adhaar Card which is one of the most required document for
identification. In the case of Dolat Ram v. State of Haryana4, it was held that, ‘Rejection of
bail in a non-bailable case at the initial stage and the cancellation of bail already granted, have
to be considered and dealt with on different basis. Very cogent and overwhelming
circumstances are necessary for an order directing the cancellation of the bail, already
granted’
8. In Suresh Raj v. State, Criminal O.P. No. 5875/2021, the High Court of Madras rejected the
bail petitions of several foreigners who illegally entered India on the ground that such foreign
nationals posed a risk to the security of the country as the petitioners were accused of offence
of preparing fake Aadhar cards, which the Court referred to as grave allegation and referred to
such foreign nationals as unscrupulous elements.
9. In Babul Khan v. State of Karnataka, CRL.P. No. 6578/2019, the Karnataka High Court
held that if for any reason the Court grants bail in any criminal case where the offender is a
foreign national and the offences are under the Foreigners Act and/or under any other laws for
1
AIR 2009 SC 1362
2
R Rathinam v. State of DSP (2000) 2 SCC 391
3
(2019) 2 Bom CR (Cri) 585
4
(1995) 1 SCC 349
the time being in force, or they are illegal migrants, they cannot be given free movements to
wander across India as per their whims and fancies, till the case is decided. They have to
comply strictly with bail conditions and not indulge in hampering or tampering the prosecution
witnesses.
10. In Md. Kameual Islam v. State (2020) 2 LW 375, the High Court of Bombay held in
view of foreign nationals in conflict with law giving fake identities that in a number of cases
when such persons are apprehended they give fictitious names hence it is not possible for
investigating authorities to ascertain whether names given are correct. Thus, when such persons
are released on bail, it is obviously difficult for the State to ascertain their identities and to
continue to monitor their activities for ensuring their cooperation with the investigation and the
trial proceedings.
11. Section 43-D (7) of the Unlawful Activities (Prevention) Act, 1967 stipulates that bail
cannot be granted to a person who is not an Indian citizen and has entered the country
unauthorisedly or illegally.
12. In Momin Mulla v. Sub Inspector of Police, B.A. No. 4987 of 2013, in which the
accused was alleged U/s 13 and 14 of the Foreigners Act and Section 3 of the Passport Act. The
Kerala High Court held that Courts cannot release a foreigner nabbed for entering India
without valid travel documents on bail unless the Central Government grants permission for his
stay in the country. If such a principle is not followed, any foreigner who violates provisions of
Foreigners Act can easily flout and transgress the mandatory provisions of the Act by getting
bail from Court.
13. That the petitioner has not been falsely implicated in this case due to personal grudge,
vengeance and with an ill motive of harassment.
14. That in the facts and circumstances of the case, the petitioner does not deserves
to be enlarge on regular bail by relaxing the condition imposed by the Court Below Vide B.P
No. 1432/2022 dated 18/10/2022 in Sursand P.S Case No. 401/2022.
15. That the petitioner is not a peace willing and law abiding citizen of India.
It is therefore prayed that your lordships
may graciously be pleased not to allow
this application and enlarged the
petitioner on Regular bail by relaxing
the condition imposed by the Court
Below in connection with Sursand P.S.
Case No. 401/2022 after furnishing
sufficient bail bond to the satisfaction of
Learned Chief Judicial Magistrate,
Sitamarhi.
And / Or
Pass such other order / orders as your
lordships may deem fit and proper in
the facts and circumstances of the case
in the interest of justice.
And / Or
For this the respondents shall ever pray.
AFFIDAVIT
I, …………………………., aged about … years, Male, Son of
………………….. Resident of Village-......................................P.S.-
……………, District- Sitamarhi , do hereby solemnly affirm and state as
follows:-
1. That I am of the petitioner in this case and therefore well
acquainted with the facts and circumstances of the case.
2. That the contents of this application have been read over and explained to
me in Hindi, which I have fully understood the same and which are true to
the best of my knowledge.
3. That the annexures is true / typed copy of the respective original.
(PETITONER IN JAIL)
IN THE HIGH COURT OF JUDICATURE AT PATNA
(Criminal Miscellaneous Jurisdiction)
Cr. Misc. No….....................................OF 2024
Khadija Noor........................................................................................Petitioner
Versus
The State of Bihar............................................................................Opposite Party
Subject – Regular Bail
INDEX
Serial Particular Page No.
No.
1. Type copy of the Criminal Miscellaneous 01--
Application with Affidavit and Identity Proof.
2. Annexure-1 A true photo/ typed copy of FIR &
Seizure Memo Sursand P.S.
401/2022
3. IMPUGNED ORDER
4. VAKALATNAMA
