The High Court of Jammu & Kashmir and Ladakh recently ruled that the law does not allow discrimination between foreign nationals and Indian citizens when it comes to granting bail (Shagufta Bano v. UT of J&K).
Justice Sindhu Sharma emphasized that while courts may impose specific conditions to ensure the accused remains available for trial, the fact that an accused is a foreign national cannot be a reason to deny bail. “The law does not authorize or permit any discrimination between a foreign national and an Indian national in matters of bail, and each case must be assessed based on its own facts and circumstances,” the court stated.
The case involved Shagufta Bano, a Myanmar national married to Bashir Ahmed Wani for the past 13 years without valid documentation in Kashmir’s Budgam. She was arrested under Section 370 of the Indian Penal Code (IPC) and Sections 14A and 14C of the Foreigners Act, 1946, for her alleged involvement in human trafficking and sexual exploitation. The police investigation uncovered non-local women at her residence, leading to the case against her and others.
Shagufta was initially granted interim bail, which later became permanent. However, the additional sessions judge rejected bail for her 14 co-accused and, without prior notice, suo motu canceled Shagufta’s bail, remanding her to judicial custody due to the seriousness of the charges.
Shagufta challenged this decision, arguing that the sessions court had acted improperly by canceling her bail without due process. The prosecution contended that she, along with her husband, had been involved in bringing women from Myanmar for prostitution without proper documentation.
The High Court, after reviewing the arguments, noted that bail, once granted, can only be revoked under compelling circumstances, which were not present in this case. The court ruled that Shagufta could not be treated differently solely because of her foreign nationality and set aside the trial court’s order, reinstating her bail.
Advocates Majid Bashir and Tawfiq Hussain Khawaja represented Shagufta, while Government Advocate Faheem Shah appeared for the Union Territory.
