HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 2038/2026

1. Nurul Islam Son of Shri Abdul Jabbarar, Resident of Ithari

Printing Paasha, PS Kulara, Molvi Bazar, Bangladesh, Haal

Prison District Jail Gurugram, Hariyana (At Present Bandi,

Central Jail, Jaipur)

2. M.D. Ahsaanul Kobir Son of M.D. Fajlur Rahman, Resident

of Baargoriya, PS Sadar Sherpur, Rampur Bazar,

Bangladesh Haal Prison District Jail Gurugram, Hariyana

(At Present Bandi, Central Jail, Jaipur)

----Petitioners

Versus

State of Rajasthan, through Public Prosecutor.

----Respondent

For Petitioner(s) : Mr.K.C. Sharma

For Respondent(s)

Counsel who appeared

on instructions

:

:

Mr.Rajesh Choudhary, GA-cum-AAG

assisted by

Mr.Jitender Singh Rathore, Add.GA.

Ms.Nehal Goyal,

Mr.Vinod Kumar Sharma &

Mr.Anirudh Singh

Mr.Bharat Vyas, ASG (through VC)

assisted by

Mr.Sandeep Pathak,

Mr.Rakesh Choudhary,

Ms.Anima Chatturvedi &

Ms.Anushka Khandelwal

Mr.V.R.S. Bajwa, Sr. Adv. assisted by

Ms.Savita Nathawat

Mr.Tanay Goyal for

Mr.Rajendra Prasad, AG

Mr.Rajesh Sharma with

Ms.Kamini Pareek

JUSTICE ANOOP KUMAR DHAND

Order

(2 of 21) [CRLMP-2038/2026]

1.Date of conclusion of arguments 13/05/2026

2.Date on which the order was reserved 13/05/2026

3.

Whether the full order or only the operative part

is pronounced

Full Judgment

4.Date of pronouncement 21/05/2026

Reportable

1.The instant petition has been preferred for releasing the

petitioner on bail in connection with F.I.R. No.319/2024, registered

with the Police Station Jawahar Circle, District Jaipur City (East)

for the offences punishable under Sections 419, 420, 471 & 120B

IPC.

2.Learned counsel for the petitioners submits that the

aforesaid F.I.R. was registered against certain accused persons

with regard to committing the alleged offence of illegal kidney

transplantation and human trafficking, wherein the petitioners and

the other co-accused persons were arrested on 23.04.2024.

Counsel submits that the petitioners became approver for the

prosecution side and on the basis of their statements recorded by

the Police, the co-accused persons were arrested and charge-

sheeted. Thereafter, the co-accused persons were granted benefit

of bail under Section 439 Cr.P.C., but the petitioners have not been

released on the sole ground that they became approver for the

prosecution side in the instant case. Counsel submits that when

the trial did not proceed any further, the petitioners approached

this Court by way of filing S.B. Criminal Misc. Petition

No.5888/2025, with a prayer for releasing them on bail, but this

Court while deciding the aforesaid petition, vide its order dated

24.11.2025, issued a direction to the Trial Court to record the

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statements of the parties in pursuance of Section 306(4) Cr.P.C.

Now, since the statements of the petitioners have been recorded

and they are in custody since 23.04.2024, therefore, it is prayed

that the petitioners be enlarged on bail till conclusion of the trial.

3.Per contra, learned Government Advocate-cum-Additional

Advocate General and Public Prosecutor oppose the prayer and

submit that as per the provisions contained under Section 306(4)

Cr.P.C., the petitioners are required to be kept in custody until the

conclusion of the trial and accordingly, the instant petition

submitted by the petitioners is liable to be rejected.

4.Heard and considered the submissions made at the Bar and

perused the material available on record.

5.Perusal of the record indicates that after the impugned F.I.R.

No.319/2024 was registered with Police Station Jawahar Circle,

District Jaipur (East) and the investigation came into motion, the

petitioners were apprehended by the Police and subsequently,

they became approver. On the basis of their statements so

recorded by the Police, the co-accused persons were arrested and

thereafter, the petitioners were also charge-sheeted along-with

the co-accused persons for the above stated offences.

6.This fact is not in dispute that the principal accused persons,

who were involved in the alleged kidney transplantation racket,

have been granted benefit of regular bail by the concerned Court

under Section 439 Cr.P.C. This fact is also not in dispute that the

petitioners have been in custody since 23.04.2024 and when the

trial did not proceed further, the petitioners approached this Court

by way of filing S.B. Criminal Misc. Petition No.5888/2025 with a

(4 of 21) [CRLMP-2038/2026]

prayer to release them on bail, but the said petition was disposed

of by this Court vide order dated 24.11.2025, while issuing

directions to the Trial Court to record the statements of the

petitioners and liberty was also granted to the petitioners to renew

their prayer for grant of bail, after recording of their statements.

7.Presently, the statements of the petitioners have been

recorded before the Trial Court, however, an objection has been

taken by the Government Advocate-cum-Additional Advocate

General that the petitioners’ prayer to release them on bail cannot

be considered, in terms of the provisions contained under Section

306(4) Cr.P.C., as the trial has not reached to its fag end and is

still continuing.

8.This Court finds no substance in the aforesaid objection

raised by the Learned Government Advocate-cum-Additional

Advocate General because the provision contained under Section

306(4) Cr.P.C. lays down that every person accepting a tender of

pardon, made under Section 306(1) Cr.P.C. shall be examined as a

witness in the Court of Magistrate taking cognizance of the

offences and at the subsequent stage of trial. However, this Court

deems it fit to observe that the petitioners cannot be allowed to

remain in custody until termination of trial by putting them in the

circumstance worse than the principal accused persons, who have

been granted the benefit of regular bail, more particularly, when

their statements have been recorded before the Trial Court.

9.The issue involved in the instant petition came up for

consideration before the Larger Bench of this Court in the case of

Noor Taki alias Mammu Vs. State of Rajasthan reported in

(5 of 21) [CRLMP-2038/2026]

AIR 1987 (Raj) 52, where a reference arising out of the Criminal

Misc. Bail Application No.1687/1985 was decided by the three

Judge Bench of this Court.

10.The issue before the Larger Bench was “whether an approver

can be detained for indefinite period even when the principal

accused in the case has been released on bail?”

11.The aforesaid question was answered by the Larger Bench of

this Court and finally it has been held in Para Nos. 15 to 19, as

under:-

“15.Taking the second point first, there is no

question of holding whether Section 306(4)(b) is

directory or mandatory as there is no specific

provision in the entire Criminal Procedure Code

which gives a right to the approver to apply for

bail. As mentioned above Section 439 Cr.P.C.

does not apply to an approver. It applies only to

a person accused of an offence. An approver

when once granted pardon, no more remains an

accused unless he violates the conditions of

pardon and sub-sequently tried for the offence.

Hence as an approver his status is that of

witness and not that of the accused. That being

so, Section 439 Cr.P.C. would not apply and

consequently the discussion on the point whether

Section 306(4)(b) is directory or mandatory, is

merely on academic exercise and that too in

futility. So far as the provision of Sec. 439 Cr.P.C.

being violative of Art. 21 of the Constitution of

India, suffice it to say that argument has been

advanced only to be rejected. Approver, as a

matter of right, cannot claim bail and as

mentioned above there is no provision granting

him bail. We have already discussed above the

reasons which appear to us persuaded the

Legislature not to make a provision for granting

bail to an approver. But Article 21 of the

Constitution of India can be looked into for

seeking an aid to the contention that the scope

of inherent powers of this Court should be so

explained so as to cover the cases of an approver

(6 of 21) [CRLMP-2038/2026]

for consideration of bail in proper cases. In

Francis Coralia Mullin's case (supra), their

Lordships of the Supreme Court defined the

scope of Article 21 of the Constitution of India. In

that case the petitioner had challenged his

detention under COFPOSA Act and an argument

was advanced challenging the constitutional

validity of certain clauses of the detention order.

Their Lordships held,

“It is not enough to secure compliance with

the prescription of Article 21 that there

should be a law prescribing some semblance

of a procedure for depriving a person of his

life or personal liberty, but the procedure

prescribed by the law must be reasonable,

fair and just and if it is not so, the law would

be void as violating the guarantee of Article

21. This court expanded the scope and ambit

of the right to life and personal liberty

enshrined in Article 21 and sowed the seed

for future development of the law enlarging

this most fundamental of Fundamental

Rights …

The position now is that Article 21 as

interpreted in Maneka Gandhi's case (supra)

requires that no on shall be deprived of his

life or personal liberty except by procedure

established by law and this procedure must

be reasonable, fair and just and not

arbitrary, whimsical or fanciful and it is for

the Court to decide in the exercise of its

constitutional power of judicial review

whether the deprivation of life or personal

liberty in a given case is by procedure, which

is reasonable, fair and just or it is

otherwise.”

16.In Kadra Pahadiya's case(supra), Hon'ble

Mr. P.N. Bhagwati, J. (as he then was) sitting with

Hon'ble A.P. Sen, J. considered a letter dated

November 28, 1980 addressed by one Dr.

Vasudha Dhagamwar, a Researcher and Social

Scientist working in the Santhal Praganas of the

State of Bihar. It represents one more instance of

the utter callousness and indifference of our legal

and judicial system to the under trial prisoners

languishing in the jails. Their Lordships before

issuing the notice passed a detailed order and

considered the scope of Article 21 of the

(7 of 21) [CRLMP-2038/2026]

Constitution of India and held “we fail to

understand why our justice system has become

so dehumanised that lawyers and Judges do not

feel a sense of revolt at caging people in jail for

years without a trial. It is difficult to comprehend

how the Sessions Judge could have forgotten

that he had called the petitioners to the court for

commencement of the trial on 30th August, 1977

and thereafter done nothing in the matter.”

17.Their Lordships referred to Hussainara-

Khatoon's case (supra) wherein it has been held

that speedy trial is a fundamental right of an

accused implicit in Article 21 of the Constitution.

Hussainara Khatoon's case , which has been

reported in (1980) 1 SCC 108 : AIR 1979 SC

1377 is a land mark in judicial history of this

country. Cases of several under trial prisoners,

who are languishing in jail for years together,

were considered. Some of them were such where

the under-trial prisoners had remained in jail

without trial for periods which are longer than

the maximum term for which they would have

been convicted. They were directed to be

released even without obtaining a bail bond. His

Lordship Mr. Justice Bhagwati speaking for the

Court, said,

“We fail to see what moral or ethical

justification could the State have to detain

these unfortunate persons for such

unreasonably long periods of time without

trial. We feel a sense of relief that they

should once again be able to breathe the air

of freedom. But we find that there are still

many more under trial prisoners who fall

within this category of persons who have

been in detention for periods longer than the

maximum term without their trial having

been commenced.”

There are 59 under-trial prisoners whose names

and particulars are set out in this chart and we

direct that they should be released forthwith as

their continued detention is clearly illegal and in

violation of Article 21 of the Constitution.

18.A perusal of the aforesaid cases coupled

with that of many other cases, like that of Sunil

Batra v. Delhi Administration (15) and yet

(8 of 21) [CRLMP-2038/2026]

another case of Hussainara Khatoon reported in

(1980) 1 SCC 81 : AIR 1979 SC 1360, we have

no hesitation in holding that detention of a

person even by due process of law has to be

reasonable, fair and just and if it is not so, it will

amount violation of Article 21 of the Constitution

of India. Reasonable expeditious trial is

warranted by the provisions of the Criminal

Procedure Code and in case this is not done and

an approver is detained for a period which is

longer than what can be considered to be

reasonable in the circumstances of each case,

the Court has always power to declare his

detention either illegal or enlarge him to bail

while exercising its inherent powers. Section 482

Cr.P.C. gives wide power to this Court in three

circumstances. Firstly, where the jurisdiction is

invoked to give effect to an order of the Court.

Secondly—if there is an abuse of the process of

the Court and thirdly, in order to secure the ends

of justice. There may be occasions where a case

of approver may fall within latter two categories.

For example in a case where there are large

number of witnesses a long period is taken in

trial where irregularities and illegalities have

been committed by the Court and a re-trial is

ordered and while doing at the accused persons

are released on bail, the release of the approver

will be occasioned for securing the ends of justice

Similarly, there may be cases that there may be

an abuse of the process of the court and the

accused might be trying to delay the proceedings

by absconding one after another, the approver

may approach this Court for seeking indulgence.

But this too will depend upon the facts and

circumstances of each case. Broadly, the

parameters may be given but no hard and fast

rule can be laid down. For instance, an approver,

who has already been examined and has

supported the prosecution version, and has also

not violated the terras of pardon coupled with

the fact that no early end of the trial is visible,

then he may be released by invoking the powers

under Section 482, Cr.P.C. Sec. 482 Cr.P.C. gives

only power to the High Court. Sessions Judge

cannot invoke the provisions of the same. High

(9 of 21) [CRLMP-2038/2026]

Court therefore in suitable cases can examine

the expediency of the release of an approver. We

are not inclined to accept the contention of the

learned Public Prosecutor that since there is a

specific bar under Section 306(4)(b), Cr.P.C.,

Section 482 Cr.P.C., should not be made

applicable. Their Lordships of the Supreme Court

has said it in terms without number, that there is

nothing in the Code to fetter the powers of the

High Court under Sec. 482 Cr.P.C. Even if there is

a bar in different provisions for the three

purposes mentioned in Sec. 482 Cr.P.C., and one

glaring example quoted is that though Sec. 397

gives a bar for interference with interlocutory

orders yet Sec. 482 Cr.P.C. has been made

applicable in exceptional cases. Second revision

by the same petitioner is barred yet this Court in

exceptional cases invoke the provisions of Sec.

482 Cr.P.C. Therefore, Sec. 482 Cr.P.C. gives

ample power to this Court. However, in

exceptional cases to enlarge the approver on

bail, and we answer the question that according

to Section 306(4)(b) Cr.P.C. the approver should

be detained in custody till the termination of

trial, if he is not already on bail, at the same

time, in exceptional and reasonable cases this

Court has power under Section 482 Cr. P.C., to

enlarge him on bail or in case there are

circumstances to suggest that his detention had

been so much prolonged, which would otherwise

out-live the period of sentence, if convicted, his

detention can be declared to be illegal, as

violative of Article 21 of the Constitution.

19.Having answered the reference as above,

we have perused the facts of this case. The

occurrence relates to July, 1983, and the accused

was arrested on March 12, 1984. He moved an

application before the Chief Judicial Magistrate

seeking pardon on April 27, 1984 and his

application was allowed by the learned Chief

Judicial Magistrate and he was declared as an

approver. The petitioner's statement as an

approver has been recorded in the court of

Sessions during trial as is apparent from the

order of the Additional Sessions Judge No. 4,

Jaipur City, Jaipur. It is not denied that he has

(10 of 21) [CRLMP-2038/2026]

fulfilled all the conditions on which pardon was

granted to him. He is in detention for more than

22 months now. Accused persons have been

released on bail, and we feel in these

circumstances approver have been put in the

circumstances worse than those who are facing

the charge sheet. The end of the trial is not

insight as more than 20 witnesses are yet to be

examined as stated before us. In these

circumstances, we confirm the order of interim

bail granted by Hon'ble Mehta, J. by his order

dated Oct. 28, 1985 and direct that the approver

shall continue to remain on bail during the

pendency of the trial on entering into a personal

bond in the sum of Rs. 5,000/- (Rs. Five

thousand) to the satisfaction of the Deputy

Registrar (Judicial), Rajasthan High Court, Jaipur

Bench, Jaipur.”

12.The answer to the issue referred to the Larger Bench is clear

and specific, that the approver should be detained in custody until

his statement is recorded.

13.In the instant case also, the statements of the accused-

petitioners have been recorded before the Trial Court and they

have been in custody since 23.04.2024.

14.Now, the issue which emerges for consideration of this Court

is “whether the petitioners are entitled to be released on bail? If

yes, whether they can be allowed to leave India to go back to

their native country, their motherland, i.e., Bangladesh?”

15.Counsel for the State submits that the petitioners are

Bangladeshi Foreign Nationals and they came to India on a

Medical VISA and meanwhile, they were arrested in the instant

case in relation to illegal kidney transplantation. Now, their

Medical VISAs have expired and in case, they leave India, their

(11 of 21) [CRLMP-2038/2026]

chances to return to India are quite bleak, hence, they should not

be enlarged on bail.

16.This Court requested Senior Advocate Mr.Bharat Vyas,

Additional Solicitor General and Mr.V.R.S. Bajwa, Senior Advocate

to assist this Court on the aforesaid issue. They have submitted

that the Foreign Nationals are also conferred the rights contained

under Article 21 of the Constitution of India and in case, the bail is

granted to the Foreign Nationals such as the petitioners, in the

present case, it is the duty of the State Government/ Prosecuting

Agency to communicate the order granting bail to the concerned

Registration Officer, appointed under Rule 3 of the Registration of

Foreigners Rules, 1948 (repealed by the Immigration and

Foreigners Act, 2025), who in turn, shall communicate the order

to all the concerned Authorities including the Civil Authorities. If

such information is furnished, it will enable the authorities

concerned under the Foreigners Act, 1946, Foreigners Rules, 1992

and Foreigners Order, 1948 to take appropriate steps in

accordance with the law.

17.They further conjointly submit that this view has already

been taken by the Hon’ble Apex Court in the case of Frank Vitus

Vs. Narcotics Control Bureau & Ors. reported in (2025) 3 SCC

1. Counsel submits that appropriate orders be passed in light of

the view already taken by the Hon’ble Apex Court in the case of

Frank Vitus (supra).

18.The issue whether the petitioners can be allowed to depart

from India to their motherland, i.e. Bangladesh, needs to be

answered in the instant petition.

(12 of 21) [CRLMP-2038/2026]

19.An identical situation came up before the Hon’ble Apex Court

in the case of Frank Vitus (supra) and the situation was dealt

with by the Hon’ble Apex Court in Para 1 to 8, as under:-

“1. By judgment and order dated 08 th July, 2024, two

main issues concerning bail conditions were decided.

Now, the issue that remains to be answered is whether

it is necessary to implead a Foreign Registration Officer

appointed under Rule 3 of the Registration of

Foreigners Rules, 1992 (for short ‘the Rules’) in the bail

application filed by a foreigner within the meaning of

the Foreigners Act, 1946 (for short ‘the Act’). Under

Section 2(a) of the Act, a foreigner means a person

who is not a citizen of India.

2. Under Section 3 of the Act, there is a power vested

in the Central Government to issue an order making

provisions either generally or concerning any particular

foreigner or class of foreigners of prohibiting,

regulating or restricting the entry of foreigners into

India or their departure therefrom or their presence or

continued presence. Under clause (g) of Section 3(2), a

power has been conferred on the Central Government

to issue an order directing that a foreigner shall be

arrested or detained or confined.

3. In the exercise of the power conferred under Section

3 of the Act, the Foreigners Order, 1948 (for short, ‘the

Order’) has been issued. Clause 2(2) of the Order pro-

vides for appointing a Civil Authority by the Central

Government. Clause 5 of the Order deals with the

power to grant permission to depart from India. Clause

5 of the Order reads thus:

“5. Power to grant permission to depart from India .

(1) No foreigner shall leave India:-

(13 of 21) [CRLMP-2038/2026]

(a) otherwise than at such port or other recognised

place of departure on the borders of India as a

Registration Officer having jurisdiction at that port

or place may appoint in this behalf, either for

foreigners generally or for any specified class or

description of foreigners; or

(b) without the leave of the civil authority

having jurisdiction at such port or place.

(2) Leave shall be refused if the civil authority is

satisfied that

(a) the foreigner has failed to comply with the

formalities of departure prescribed under the

Registration of Foreigners Rules, 1939;

(b) the foreigners presence is required in

India to answer a criminal charge;

(c) the foreigners departure will prejudice the re-

lations of the Central Government with a foreign

power;

(d) the departure of the foreigner has been pro-

hibited under an order issued by a competent

authority.

(3) (a) Notwithstanding anything contained in

the above sub-paragraphs, a civil authority may

prohibit the departure of a foreigner where it is

satisfied that such departure would not be con-

ducive to the public interest.

(b) Whenever a civil authority issues an order

under clause (a), it shall report the matter forth-

with to the Central Government which may can -

cel or modify the order in such manner as it

thinks fit.”

(emphasis added)

Under sub-clause (2) of clause 5, leave must be refused

by the Civil Authority if it is satisfied that the foreigner’s

(14 of 21) [CRLMP-2038/2026]

presence is required in India to answer a criminal

charge.

4. Shri Vinay Navare, learned senior counsel appointed

as Amicus Curiae, has suggested that considering the

powers vested in Civil Authorities under the Order, it will

be appropriate to direct that while considering the

prayer for granting bail in case of a foreign national who

is accused of serious offences, a notice should be issued

to the Civil Authority so that the said authority can be

heard on the prayer for grant of bail and on bail condi-

tions, in the event the court is inclined to grant bail.

Shri. Vikramjeet Banerjee, learned Additional Solicitor

General of India has also submitted that it is always ad-

visable to give notice of the bail application to the au-

thorities under the Act and the Rules.

5. Under clause (b) of Section 3(2) of the Act, there is a

power vested in the Central Government to issue an or-

der generally or with respect to any particular foreigner

or class of foreigners that they shall not depart from In-

dia or shall depart subject to observance of such condi-

tions on departure as may be prescribed. The Rules do

not impose any such restriction on departure from In -

dia. However, as noted earlier, according to clause 5(1)

(b) of the Order, no foreigner shall leave India without

the leave of the Civil Authority having jurisdiction. When

a foreigner’s presence is required in India to answer a

criminal charge, permission to leave India must be re-

fused. Under the Order, the Civil Authority can impose

restrictions on the movements of a foreigner. Therefore,

once a foreigner is released on bail, he cannot leave In-

dia without the permission of the Civil Authority, as pro-

vided in clause 5 of the Order. Under clause 11 and

other clauses of the Order, various restrictions can be

imposed on a foreigner while he is in India. The said

power is wholly independent of the power to grant bail.

(15 of 21) [CRLMP-2038/2026]

As of today, there is no order passed by the Central

Government for giving effect to clause (g) of Section

3(2) of the Act. In any event, even if such an order is

issued, the power to arrest or detain a foreigner under

the Act is independent of the power of the criminal court

to grant bail. Notwithstanding the bail granted by a

criminal court, the power to arrest and detain a for-

eigner can be exercised, provided the Central Govern -

ment makes an order in terms of clause (g) of Section

3(2) of the Act.

6. Therefore, we do not see any propriety in issuing a

direction that either the Civil Authority or the Registra-

tion Officer should be made a party to a bail application

filed by a foreigner or a notice of the bail application be

issued to the said authorities. The reason is that the au-

thorities under the Act and the Order have no locus to

oppose bail application filed by a foreigner unless bail is

sought where the allegation is of the offence punishable

under Section 14 of the Act. The impleadment of the

Civil Authority or Registration Officer in all bail applica-

tions filed by foreigners may result in unnecessary delay

in deciding the bail applications.

7. All that can be done is that while releasing a for-

eigner on bail, the Court should direct the investigating

agency or the State, as the case may be, to immedi -

ately inform the concerned Registration Officer ap -

pointed under Rule 3 of the Rules about the grant of bail

so that the Registration Officer can bring the fact of the

grant of bail to the notice of concerned Civil Authority.

8. In addition to what we held by judgment and order

dated 08th July, 2024, we issue the following directions:

(i) While granting bail to a foreigner within the

meaning of the Act, the concerned court shall issue

direction to the State or prosecuting agency, as the

(16 of 21) [CRLMP-2038/2026]

case may be, to immediately communicate the order

granting bail to the concerned Registration Officer

appointed under Rule 3 of the Rules who, in turn,

shall communicate the order to all concerned author-

ities including the Civil Authorities. If such informa-

tion is furnished, it will enable the authorities under

the Act, the Rules and the Order to take appropriate

steps in accordance with the law; and

(ii) A copy of this order shall be forwarded to Regis-

trar Generals of all the High Courts, who in turn will

forward the copies of the order to all the criminal

courts in the respective States.”

20.It is worthy to note here that the Foreigners Act, 1946,

Foreigners Rules, 1992 and the Foreigners Order, 1948 have been

repealed by the Legislature by enacting the Immigration and

Foreigners Act, 2025, the Immigration and Foreigners Rules, 2025

and the Immigration and Foreigners Order, 2025 respectively.

21.The provisions contained in the old repealed Act and Order

and the newly enacted Act and Order are para materia and almost

identical.

22.Order/ Clause 5 of the Immigration and Foreigners Order,

2025 deals with the powers and provisions of granting permission

to depart from India, and the same is reproduced as under:-

“5. Power to grant permission to depart from

India

(1) In addition to the grounds specified in first proviso

to sub-section (2) of section 3 of the Act, a person may

be refused permission to depart from India on the

following grounds, namely:-

(a) if his presence is required in India by any

court;

(17 of 21) [CRLMP-2038/2026]

(b) if he is suffering from diseases which are

danger to public health or safety;

(c) if his exit may adversely affect relations with a

foreign State; or

(d) if he cannot be allowed to depart or exit from

India either under specific orders of the Central

Government or by an order issued by any law

enforcement authorities or other designated

Government agencies as may be authorised by

the Central Government.

(2) Notwithstanding anything contained in sub-

paragraph (1), the Immigration Officer may prohibit the

departure of a foreigner by passing an order, when he

is satisfied that such departure may not be in the public

interest.

(3) Whenever an Immigration Officer passes an order

under sub-paragraph (2), it shall report the matter

forthwith to the Central Government which may cancel

or modify the order.

(4) The Bureau of Immigration shall maintain an

updated list of persons who shall not be granted

permission to depart from India.”

Bare perusal of the aforesaid provision make it explicitly

clear that the discretion lies with the Immigration Officer

concerned for granting permission to any Foreigner to depart from

India or not.

23.Now, this Court reverts to first issue that whether after

recording of the statements of the approver like that of the

petitioners, are they entitled to be released on bail or not?

24.Looking to the rider contained under Section 306(4) Cr.P.C.,

this Court while deciding the earlier Criminal Misc. Petition

No.5888/2025 vide order dated 24.11.2025, directed the Trial

(18 of 21) [CRLMP-2038/2026]

Court to record the statements of the petitioners. Thereafter, their

statements have been recorded as PW-1 Nurul Islam & PW-2 M.D.

Ahsaanul Kobir. Now, the prayer of the petitioners seeking their

release on bail can be considered in the light of the judgment

passed by the Larger Bench of this Court in the case of Noor Taki

alias Mammu (supra).

25.The petitioners are Foreign Nationals being residents of

Bangladesh and they are in judicial custody since 23.04.2024. Till

date only their statements have been recorded as PW-1 & PW-2

and the trial is pending against the petitioners and co-accused

persons for last more than two years. The chances of conclusion of

trial in near future are very bleak. They have the fundamental

rights of speedy trial under Article 21 of the Constitution of India.

26. The protection under Article 21 of the Constitution of India,

which guarantees the right of life and personal liberty, extends to

all persons and this right is not confined to the Indian Citizens

alone and it is available to the Foreign Nationals as well. The Right

to Life with Dignity guaranteed under Article 21 is available to all

human beings, including foreigners.

27.As per Article 21 of the Constitution of India “No person shall

be deprived of his life or personal liberty except according to the

procedure established by law. The right to fair and speedy trial is

an integral part of Article 21 of Constitution of India. Moreover, a

fair procedure, in the criminal trial is an essential component of

Article 21 of the Constitution of India and it does not differentiate

between Indian Citizens and foreign Nationals.

(19 of 21) [CRLMP-2038/2026]

28.Foreign Nationals, including the petitioners, who are facing

trial in India are also entitled to Right to Life with Dignity under

Article 21 of the Constitution of India. This right has been

established as a powerful shield of protection, ensuring that Right

to Life with Dignity extends beyond borders, safeguarding all

human beings.

29.The Hon’ble Apex Court in the case of Sunil Batra v. Delhi

Administration reported in 1980 (3) SCC 488 has held that

even a convicted individual holds a right to dignified life, which

Article 21 of the Constitution of India recognizes, as an inherent

right in every human being including foreigners.

Even in the case of K. S. Puttaswamy & Anr. Vs. Union of

India & Ors. reported in 2017 (10) SCC 1 , the Hon’ble Apex

Court has held that anything personal is part of one’s privacy and

unless it is enabled by law, it cannot be invaded even if an

accused person is a Foreign National.

30.Prolonged detention without trial amounts to violation of the

Right to Life and Personal Liberty contained under Article 21 of the

Constitution of India.

31.Looking to the overall facts and circumstances of the case

and considering the fact that the petitioners’ statements as

approvers have already been recorded before the Trial Court as

PW-1 and PW-2, it is not denied that the petitioners have fulfilled

all the conditions for which benefit of pardon was granted to them.

Their detention has continued for a period of more than 24

months by now. All the principal and main accused persons have

already been granted bail way back and since, the end of the trial

(20 of 21) [CRLMP-2038/2026]

is not insight, as more than dozens of witnesses are yet to be

examined, hence, detention of the petitioners for indefinite period

would violate their right of speedy trial under Article 21 of the

Constitution of India.

32.Considering the proposition of law, as propounded by the

Hon’ble Apex Court in the case of Frank Vitus (supra), the instant

criminal misc. petition submitted by the petitioners stands allowed

subject to their furnishing personal bonds in the sum of

Rs.5,00,000 (in words Rupees Five Lakh) each along-with two

sureties in the sum of Rs.2,50,000 (in words Rupees Two Lakh and

Fifty Thousand) each to the satisfaction of the Trial Court with the

condition that the petitioners would appear before the Trial Court

as and when called upon to do so.

33.A direction is issued to the Principal Secretary, Department

of Home, Government of Rajasthan, Jaipur; the Director General

of Police, Police Head Quarters, Jaipur; the Commissioner of

Police, Police Commissionerate, Jaipur; Director, Department of

Prosecution, Government Secretariat, Jaipur; and Rajesh

Choudhary, Government Advocate-cum-Additional Advocate

General to communicate this order to the Immigration Officer/

Reporting Officer, in terms of the provisions contained under

Sections 3 & 7 of the Immigration and Foreigners Act, 2025,

Immigration and Foreigners Rules, 2025 and Immigration and

Foreigners Order, 2025. Let a copy of this order be sent to each

one of them for necessary compliance of this order.

34.Let a copy of this order be also sent to the Immigration

Officer to take appropriate steps in accordance with law.

(21 of 21) [CRLMP-2038/2026]

35.This Court also places on record its appreciation to Senior

Advocate Bharat Vyas, Additional Solicitor General; Mr.V.R.S.

Bajwa, Senior Advocate; and Mr.Rajesh Choudhary, Government

Advocate-cum-Additional Advocate General for their invaluable

assistance rendered to this Court on the issue involved in the

present criminal misc. petition.

36.Before parting with the order, this Court deems it just and

proper to issue a direction to the Trial Court to speed up the

proceedings pending before it and take all appropriate steps and

endeavours to conclude the trial expeditiously, as early as

possible, looking to the fact that the trial is pending since 2024

and more than two years have passed and the same is proceeding

at a snail’s pace. Looking to the fact that the petitioners, who are

the Foreign Nationals, are involved in the present case, the trial

cannot be allowed to remain pending for indefinite time and

infinite period. The Trial Court is directed to send letter to the

jurisdictional Superintendent of Police to serve the

summons/bailable warrants upon the prosecution witnesses for

their appearance before the Trial Court in the witness box, so that

the trial can conclude expeditiously. The Trial Court is further

directed not to entertain any unnecessary & unwarranted delaying

tactics of any of the accused persons to defer/adjourn the matter.

Let a copy of this order be also send to the Trial Court for

necessary compliance.

(ANOOP KUMAR DHAND),J

Aayush Sharma /138