# Ryen @ Ren Chao v. State of U.P

- **Citation:** (2024) 7 ILRA 1011
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-31
- **Case number:** Crl. Misc. Bail Application No. 59258 of 2022
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ryen-ren-chao-v-state-of-u-p-52179
- **Pages:** 22

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 419, 420, 467, 468, 471, 120B &
201 - Foreigners Act, 1946 - Sections 14,
14(A), 14(B) & 14(C) - IT Act - Section
66D - The Code of Criminal Procedure,
1973 - Sections 309, 445 - The applicant,
a Chinese national came to India on work
visa - Applicant never worked in employer
company, started working illegally for
HTZN, engaged in business of extracting
chips from e-waste, exported chips to
China, operated illegal gaming apps,
laundered money to foreign countries in
form of bitcoins, had no authority in law
to do business in India - Applicant's visa
had long expired, stayed on illegally -
Place of residence in Visa is different - The
well structured crime machinery, included
persons who facilitated illegal entry of
Chinese nationals in India, aided their
unlawful
exit,
created
fake
identity
documents - Applicant is part of a larger
international mafia engaged in organized
criminal activities - Strong likelihood that
he had committed the offence - Applicant
flouted visa conditions, overstayed after
expiry of visa and carried on criminal
activities, no respect for Indian laws - In
view of availability of crime network, the
applicant is likely to indulge in nefarious
activities if released on bail - Applicant is
an high flight risk, poses a danger to
process of law. (Para 21, 22, 24, 38, 44,
70)

Bail application dismissed. (E-13)

List of Cases cited:

## Text

_Characters 0–38,528 of 64,958. This is a partial read: ask again with offset=38528 for what follows._

7 All. Ryen @ Ren Chao Vs. State of U.P.
1011
deliberate or without sufficient
cause, then it shall be open for the
Trial Court to treat such default as
abuse of liberty of bail and proceed
against him in accordance with law.

18. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.

19.
It
is
made
clear
that
observations made in granting bail to the
applicant shall not in any way affect the
learned
trial
Judge
in
forming
his
independent
opinion
based
on
the
testimony of the witnesses.
----------
(2024) 7 ILRA 1011
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.07.2024

BEFORE

THE HON'BLE AJAY BHANOT, J.

Crl. Misc. Bail Application No. 59258 of 2022

Ryen @ Ren Chao ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Abhas Sharma, Pradeep Kumar Mishra, Rajesh
Kumar Sharma

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 419, 420, 467, 468, 471, 120B &
201 - Foreigners Act, 1946 - Sections 14,
14(A), 14(B) & 14(C) - IT Act - Section
66D - The Code of Criminal Procedure,
1973 - Sections 309, 445 - The applicant,
a Chinese national came to India on work
visa - Applicant never worked in employer
company, started working illegally for
HTZN, engaged in business of extracting
chips from e-waste, exported chips to
China, operated illegal gaming apps,
laundered money to foreign countries in
form of bitcoins, had no authority in law
to do business in India - Applicant's visa
had long expired, stayed on illegally -
Place of residence in Visa is different - The
well structured crime machinery, included
persons who facilitated illegal entry of
Chinese nationals in India, aided their
unlawful
exit,
created
fake
identity
documents - Applicant is part of a larger
international mafia engaged in organized
criminal activities - Strong likelihood that
he had committed the offence - Applicant
flouted visa conditions, overstayed after
expiry of visa and carried on criminal
activities, no respect for Indian laws - In
view of availability of crime network, the
applicant is likely to indulge in nefarious
activities if released on bail - Applicant is
an high flight risk, poses a danger to
process of law. (Para 21, 22, 24, 38, 44,
70)

Bail application dismissed. (E-13)

List of Cases cited:

1. Hans Muller of Nurenburg Vs Superintendent,
Presidency Jail, Calcutta & ors., 1955 SCC
OnLine SC 35

2. Michal Benson Nwaogu @ Chuna Benson Vs
St., 2024 SCC OnLine Del 665

3. Hussainara Khatoon & ors. (I) Vs Home
Secretarty, St. of Bihar, (1980) 1 SCC 81

4. A.R.Antulay Vs R.S.Nayak & anr., (1992) 1
SCC 225

5. Sheela Barse & ors.Vs U.O.I.& ors., (1986) 3
SCC 632

6. P. Rama Chandra Rao Vs St. of Karnataka,
(2002) 4 SCC 578

7.
P.
Chidambaram
Vs
Directorate
of
Enforcement, Criminal Appeal No. 1831/2019
(Arising out of S.L.P.(Crl) No. 10493 of 2019)

8. King vs Porter, (1910) 1 KB 369
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Zoro Daniel Vs St., 2012 SCC OnLine Del 1065

10. Nagendra Vs King Emperor, 1924 SCC
OnLine Cal 318

11. Gurbaksh Singh Sibbia Vs St. of Pun., (1980)
2 SCC 565

12. Supreme Court Legal Aid Committee
representing undertrial Prisoners Vs Union, 1994
(6) SCC 731

13. Frank Vitus Vs Narcotics Control Bureau &
ors., Criminal Appeal @ SLP (Crl) No. 6339-40 of
2023

14. Charles Sobhraj Vs St., 1996 SCC OnLine Del
300

15. Nastor Farirai Ziso Vs NCB, 2022 SCC OnLine
Del 1024

16. Mohd. Masroor @ Mansoor @ Guddu Vs St.
of U.P, Jail Appeal No. 802 of 2013

17. Babul Khan & anr. Vs St. of Karn., 2020 SCC
OnLine Kar 3438

18. Bhanwar Singh @ Karamvir Vs St. of U.P,
2023 SCC OnLine All 734

19. Jitendra Vs St. of U.P, Criminal Misc. Bail
Application No.9126 of 2023

20. Noor Alam Vs St. of U.P, 2024 (5) ADJ 766

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The judgment is being structured in
the following conceptual framework to
facilitate the discussion:

I
Introduction:
A
The accused
B
F.I.R.
C
Investigations
II
Submissions of learned counsels for
the parties
III
Rights of Foreign Nationals:
A
Constitution
of
India
B
Right to fair trial
C
Right
to
seek
bail
:
Considerations
IV
Merits:
A
Likelihood
of
the
applicant
committing the
offence
and
material against
him
B
Gravity of the
offence
&
impact
on
society
C
Likelihood
of
the
applicant
reoffending
V
Flight Risk and Foreign Nationals :

A
System
of
sureties
B
Coercive
jurisdiction
of
Courts
C
Stand
of
Government of
India and State
Government
D
Applicant as a
flight
risk
:
Assessment
VI
Conclusion

I. Introduction :

I-A. The accused:

2. The accused in the instant case
is a Chinese national who is facing trial in
Case Crime No. 408 of 2022 at Police
Station Beta-2, District- Gautam Buddha
Nagar under Sections 419, 420, 467, 468,
7 All. Ryen @ Ren Chao Vs. State of U.P.
1013
471, 120B, 201 IPC and Section 14(A),
14(B), 14(C), 14 of Foreigners Act and
Section 66D IT Act. The applicant is in jail
since 09.07.2022.

3. This is the first bail application
filed by the aforesaid Chinese national
before this Court. The bail application of
the applicant was rejected by the trial court
on 07.11.2022.

I-B. FIR:

4.

The
gravamen
of
the
prosecution case as set out in the FIR is that
reports of tampering of E-FRRO reports
and fraudulent Visa extensions came to the
notice
of
police
authorities.
Raids
conducted at Taj Hotel led to recovery of
various items including a BMW car,
Aadhar Cards, ATM Cards, laptops, mobile
phones and passports. Subsequent raids
during the investigations at a flat in J.P.
Greens
yielded
incriminating
articles
namely fake Aadhar Cards and Passports. A
Chinese national by the name of XUE-FEI
@ Koei was arrested and questioned. XUEFEI @ Koei had forged his identity papers
with the collaboration of his business
associate Ravi Kumar Natwarlal Thakkar.
Police interrogation of Pete Khrienuo @
Pette disclosed that she had assisted XUEFEI @ Koei and two other Chinese
nationals to illegally obtain false IDs' like
voter card, Aadhar card from Nagaland.
She had facilitated the illegal entry of two
Chinese nationals into the country and also
travelled with them and Xue-Fei @ Koei to
various places in India. She had purchased
Indian sim cards on her ID.

I-C. Investigations:

5. The applicant was not named in
the FIR. However during the course of
investigations,
the
police
authorities
unearthed several incriminatory evidences
against the applicant which according to
them establish the culpability of the
applicant in various offences.

II.
Submissions
of
learned
counsels for the parties:

6. Shri Vinay Saran, learned Senior
Counsel assisted by Shri Pradeep Kumar
Mishra, learned counsel and Shri Abhishek
Srivastava,
learned
counsel
for
the
applicant made the following submissions.

i. The applicant was a
simple workman who extracted
chips in a unit set up by a company
called HTZN.

ii. No incriminating article
has been recovered from the
applicant. The stamp pad in the
name of the applicant recovered
from the factory premises in the
name of the applicant at the
pointing out of the co-accused was
not
used
for
any
fraudulent
transaction. Travel tickets which
were recovered from the applicant
do not connect the applicant with
any offence.

iii.
The
applicant
was
nominated in the statement of coaccused Ashu Kumar and Pradeep
Kumar while in custody of police
authorities.
The
only
offence
against
the
applicant
(without
prejudice to his defence) is that of
overstaying the visa which may
constitute an offence under Section
14 of the Foreigners Act, 1946. The
offence alleged against he applicant
are petty in nature.
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Shri Manish Goyal, learned
Additional Advocate General assisted by
Shri Rupak Chaubey, learned A.G.A. for
the State made the following submissions:

i. The statement of the coaccused made before the police
authorities while in the custody of
the latter can be relied upon against
the applicant in bail application in
appropriate cases especially when
other
credible
evidences
corroborate the same.
ii.
Further
credible
evidence has also been unearthed
against the applicant which directly
connects him to various offences
for which he is being tried.
iii. The applicant was incharge of day to day functioning
and was in the higher management
of the company.
iv. The applicant tried to
falsely pose as a workman only to
ensure that his illegal activities go
undetected. The applicant is a part
of a larger criminal organization
and an international crime network
which has been committing crimes
of a serious nature in India. There
is no legal documentation of the
business of HTZN and it is
connected
with
other
fake
companies.
v. Various evidences like
statements of persons connected
with
the
company,
recovered
articles,
CDRs,
documentary
evidences
and
fraudulent
transactions clearly point to the
guilt of the applicant.
vi. The applicant entered
India as an employee of another
company who started working for
HTZN without any permission.
vii. The applicant remained
in India after overstaying his visa
only in furtherance of his criminal
activities and interests.
viii. The applicant has no
regard for Indian laws and is likely
to flee the country if enlarged on
bail. There are no prospects of
getting the applicant extradited or
procuring his presence in court if
he leaves the territorial boundaries
of India.
ix. The offences are grave
in nature and pose a threat to
national security and the national
economy.

8. Shri S.P. Singh, learned
Additional Solicitor General of India
assisted by Shri R.P.S. Chauhan, learned
Central Government Counsel submits that
the Government of India does not have
treaty arrangement or legal framework with
the Peoples Republic of China and in case
the applicant escapes from India there is
little or no possibility of ensuring his
presence in India to face the trial.

III. Rights of Foreign Nationals

9. In today's age of a globalized
world order, digital technologies and
integrated economies have wrought far
reaching changes in human societies and
have also brought complex legal challenges
in their wake. The character and nature of
crime is undergoing a change. Some of
these offences impact the national economy
or national security in a significant manner.
The response of the Indian laws and courts
to the emerging legal challenges will be
critical.

III-A.
Constitutional
Rights/Fundamental Rights
7 All. Ryen @ Ren Chao Vs. State of U.P.
1015
10. The Constitution and the
Indian system of laws bound India into
an
indissoluble
union
and
gave
irrevocable guarantees of fundamental
rights and justice to all citizens. Ancient
Indian
values
of
Vasudhaive
Kutumbakam
are
in
embodied
constitutional law pronouncements of
higher courts in modern India. Foreign
nationals in India also cherish the ample
fruits of liberties in this land. Life and
some liberties of such foreign nationals
are protected in many ways under the
Indian laws.

11. The discussion can profit by
reference to authorities in point.

12. While determining the question
whether the guarantee of fundamental
rights vested in Indian citizens by the
Constitution applies to foreign nationals
and extent of the protection, the Supreme
Court in Hans Muller of Nurenburg Vs.
Superintendent,
Presidency
Jail,
Calcutta and others1 set forth the law as
under:

"33. Article
19
of
the
Constitution
confers
certain
fundamental rights of freedom on
the citizens of India, among them,
the
right
"to
move
freely
throughout the territory of India"
and "to reside and settle in any part
of India", subject only to laws that
impose reasonable restrictions on
the exercise of those rights in the
interests of the general public or for
the protection of the interests of
any
Scheduled
Tribe.
No
corresponding rights are given to
foreigners. All that is guaranteed to
them is protection to life and liberty
in accordance with the laws of the
land. This is conferred by Article
21 which is in the following terms:
"No
person
shall
be
deprived of his life or personal
liberty
except
according
to
procedure established by law".
(Also See: Judgment of
Delhi High Court in Michal
Benson
Nwaogu
@
Chuna
Benson Vs. State2)

III-B. Right to Fair Trial

13. The defining attributes of
criminal trials in India are fairness,
transparency, legal aid and endeavours to
conclude the same expeditiously.

14. Foreign nationals being away
from their home land undoubtedly face
certain hardships while facing criminal trial
in India. However, constitutional law in
India has to evolve in conformity with its
earlier
precedents
to
mitigate
such
hardships and exclude all possibilities of
unfairness or miscarriage of justice in a
criminal trial. A fair procedure for foreign
nationals facing criminal trials is integral to
the realization of the guarantees of life and
liberty under Article 21 of the Constitution
of India assured to such foreign nationals.
Article 21 of the Constitution of India
insofar as it relates to fair and just
procedure in criminal trials does not
distinguish between Indian citizens and
foreign nationals.

15. Right to legal aid and Right to
speedy trial were exalted as fundamental
rights of citizens of India flowing from
Article 21 of the Constitution of India by
the
Supreme
Court
in
Hussainara
Khatoon and others (I) vs. Home
Secretarty,
State
of
Bihar3
and
A.R.Antulay vs R.S.Nayak and Anr.4,
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
Sheela Barse and ors. vs Union of India
and ors.5, P. Rama Chandra Rao vs State
of Karnataka6 , respectively.

16. The foreign nationals including
the applicant facing trials in India are
vested with the following rights which
ensure
procedural
fairness
and
transparency. These rights are concomitant
rights of Article 21 of the Constitution
vested in foreign nationals in India.

A. Right to a translator to
translate the court proceedings in
their native language.
B. Right to legal aid in case
the foreign national is bereft of or
is desirous of obtaining legal aid.
C. Foreign nationals have a
right to communicate with their
families as per the arrangements
made
by
the
jail
authorities/appropriate
Government.
D.
Right
to
counsellor/embassy access.
E. Right to a speedy trial.

17. This Court by order dated
12.03.2024
had
directed
the
State
authorities and the trial court to ensure
that the above facilities are duly provided
to the applicant. The response of the State
Government in this regard has been most
encouraging.
By
affidavits
dated
15.04.2024 and 01.07.2024 respectively
the State Government have disclosed that
the applicant has been provided a
translator and given the option of legal
aid. He is also provided with counsellor
access and a channel to communicate
with his family.

III-C.
Right
to
seek
bail:
Considerations
18. The foreign nationals are
entitled to seek bail as per the applicable
laws, and conditionalities as may be
imposed in the facts and circumstances of a
case.

19. The bail jurisdiction and
criteria for grant of bail has been settled
more by conventions and practices which
entered into judicial precedents over time.
While considering grant of bail the courts
have to consider various aspects including
the likelihood that the accused committed
the offence, the nature and gravity of the
offence, and the impact on the society.
Besides, the Court has also to examine the
criminal antecedents of the under trial,
likelihood of the accused reoffending and
assess whether the accused is a flight risk.
The essence of bail jurisdiction is to
balance the demands of personal liberty
with the imperatives of the court process.
Attaining this balance is an exercise
undertaken in every bail application.

IV. Merits

A. Likelihood of the applicant
committing the offence and material
against him:

20. After hearing learned counsels
for the parties and upon examination of the
record, the following facts are disclosed.

21. The applicant came to India on
the strength of a work visa. The name of
the applicant's employer company was
Shenzhen Luckin Electronic Technology
Co. Ltd. However, the applicant never
worked in the said company. In fact, the
applicant started illegally working for
HTZN and got engaged in the business of
extracting chips from e-waste. He had no
authority in law to do such business in
7 All. Ryen @ Ren Chao Vs. State of U.P.
1017
India. The applicant's visa had long expired
but he stayed on illegally in the country.
The place of residence of the applicant
recorded in the Visa is different from the
one
disclosed
to
the
police
during
investigations.

22. The HTZN company in which
the applicant was depicted as the employee
was only a front to carry on unlawful
activities and commit offences against
Indian laws. The HTZN company was
connected with other sham companies in an
intricate web of an organized international
crime network in India. Fake companies
were set up only to disguise their activities
and
give
an
impression
of
lawful
businesses. The aforesaid companies were
essentially one entity and working with the
common object of engaging in various
criminal activities in the country. HTZN
unlawfully exported chips to China. The
proceeds of the aforesaid exports were not
received in India. The said companies also
operated illegal gaming apps, laundered
money to foreign countries in form of
bitcoins. The game apps were used to dupe
many small Indian investors of their
money. Financial transactions of HTZN
with other front companies like Sudden Fix
Pvt. Ltd., TD Max and Tiashang Renjion
Co. Ltd. have been demonstrated from the
bank account details. The well structured
crime machinery included persons who
facilitated illegal entry of Chinese nationals
in India, aided their unlawful exit from
India and also created fake identity
documents for them.

23.

Collectively
the
entire
conglomerate of the sham companies which
included Sudden Fix Pvt. Ltd., TD Max and
Tiashang Renjion Co. Ltd. run by the
applicant
and
his
accomplices
were
intimately twined together and engaged in
various criminal acts. In fact the crime
racket had become so big that a hotel was
set up which became a hub of such
activities. Entry of Indians was barred in
the said hotel.

24. The criminal operations of the
said companies were executed through the
applicant and other accomplices who were
both Chinese and Indians. In fact the
applicant is part of a larger international
mafia engaged in organized criminal
activities in India.

25. The applicant tried to pass for
a workman. The cloak of ordinariness so
created was only to avoid attention to the
applicant. The applicant was in fact a part
of the higher management and was also
engaged in day to day functioning of
HTZN. When the veil was raised it was
found
that
HTZN
was
in
fact
an
aggregation of Chinese nationals who with
their Indian accomplices committed the
aforesaid offences.

26. Office of HTZN was not found
in the place depicted as the registered office
in the ROC documents. The board of Exigo
was affixed at the premises of HTZN to
create a false impression.

27. Ashu Bhardwaj, the owner of a
courier company which had done business
with HTZN gave his statement to the police
during
the
investigations.
The
said
statement shows that the applicant had a
major role in running of HTZN company.
The applicant negotiated the cargo rates,
showed chip samples and settled the
contract with the said Ashu Bhardwaj for
exporting chips to Hong Kong.

28. The recoveries made at the
premises of HTZN included the stamp pad
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
of the applicnat which is consistent with his
higher role in the company. The stamp pads
of other sham companies Sudden Fix Pvt.
Ltd., Noida, TD Max etc. were also
recovered. The said companies do not have
any authentic registration or any lawful
business to show for, but only provided a
cover for illegal activities. In fact legal
documentation of the said companies and
their transactions are almost entirely
absent.
Further,
foreign
currencies
including Chinese currencies and Hong
Kong dollar were also recovered from the
premises of HTZN.

29. The supervisory role of the
applicant in the aforesaid company is also
depicted in the statements of Vishal who
was the accountant for HTZN and TD Max.
The said Vishal has clearly stated that he
worked
under
instructions
from
the
applicant and other co-accused.

30. Packaging materials were
paid for by the applicant in cash. The
process of extraction of sim cards was
undertaken by 35-40 employees of the
company. The managerial role of the
applicant in running of the company is
also evident from the fact that the said
30-35 employees were paid in cash by the
applicant. The salaries paid to the
aforesaid
employees
were
never
accounted for. Cash payments do not
create documentary trails and were used
to avoid detection and cover up the crime.
The said Vishal was frequently directed
by the applicant and other principal
offenders to create fabricated bills. The
said Vishal was asked to obtain bills for
purchase of scrap from Exigo. Exigo did
not engage in the business of sale of
scrap
and
declined
to
issue
bills.
However, payments were still received
from Exigo.
31. The applicant along with coaccused Zong Hao Zhe @ Jon and He
Zhuang
Zhuang
@
Johnson
created
fraudulent bills. Further, the evidence
including implicatory chats between Ryen,
Jon, Johnson, Ravi and Koei disclose that
the said Vishal was directed to fabricate
bills for the company. The documentary
evidences in this regard shall be tendered as
prosecution evidence during the trial.

32. The rent was paid by the
applicant and the co-accused Johnson.
Particulars of many of the fraudulent
transactions committed by the applicant
along with other co-accused have come to
light during the investigations.

33.

Various
cryptocurrency
purchases were made by Sudden Fix Pvt.
Ltd. and Tianshang Renjian Pvt. Ltd. The
cryptocurrency transactions by the said
companies were in fact a means to launder
Indian money and park Indian funds in
foreign countries without any sanction in
Indian laws or knowledge of competent
Indian authorities. These unregulated and
illegal transactions lead to drain of the
wealth of India.

34. The former scrap suppliers
Jatin and Ashif too have demonstrated that
the applicant had a decisive role in the
business of extracting chips from e-waste
and sending them to China. The said Ashif
and Jatin have also adverted to the illegal
activities of the accused and HTZN.

35. The recoveries made from the
person of the applicant included passports,
an expired visa, mobile phones and airline
tickets. The mobile phones and the sim
cards were issued in the name of other
Indian nationals. The IMEI numbers of the
recovered mobiles and the sim cards used
7 All. Ryen @ Ren Chao Vs. State of U.P.
1019
therein have been tallied. The CDRs depict
a regular conversations with principal
offenders which depicts close collaboration
in the aforesaid fraudulent transactions.

36. The recovered air tickets show
that the applicant was a frequent traveller
from Delhi to Hong Kong. He was in
regular contact with persons in Hong Kong.
His residential place his Shenzhen. These
were not home visits.

37. The applicant was a regular
visitor to the Noida Golf Club. Later on the
applicant took membership of the Golf
Club. The membership of an exclusive golf
facility and repeated visits to the same and
frequent foreign travels shows a high flying
lifestyle which was funded through the
proceeds of crime. The applicant was no
ordinary workman he was projected to be.
The applicant resided together with other
co-accused Jon. The affinity between the
aforesaid
co-accused
clearly
shows
intimate collaboration in the commission of
crimes.

38. Prosecution evidence collected
during the investigation is yet to tested in
the court. For the purposes of this bail the
material is credible enough and points to
the culpability of the applicant in the
offences. There is strong likelihood that the
applicant committed the offence. It is
clarified that the above findings are only
for deciding the bail application. None of
the observations shall influence the trial
court and are not liable to be considered in
the trial proceedings.

IV-B. Gravity of the offence and
impact on society:

39. Material discussed above the
evidences against the applicant disclosed
commission of economic offences and
fraud. Furthermore, the applicant appears to
be part of a well organized international
crime network of Chinese nationals and
local accomplices in India.

40. Economic offences particularly
those
committed
by
well
organized
international crime networks have severe
consequences
on
social
cohesion.
Economic offences of this nature create a
parallel economy and threaten the national
economic stability.

41. International criminal networks
which are managed by Chinese nationals
with Indian accomplices as in the instant
case significantly impact the national
security.
Such
international
crime
syndicates create fifth columnists in the
host countries. What aggravates the crime
further is that many beneficiaries of the
crime proceeds are foreigners living abroad
who are not even amenable to Indian law
and
whose
identities
are
effectively
concealed.

42. The narrative has the support
of authority in point.

43. The Supreme Court in P.
Chidambaram
vs.
Directorate
of
Enforcement7 while examining the issue
whether economic offences fell within the
category of grave offence held:

"21.
....However,
while
considering the same the gravity of
the offence is an aspect which is
required to be kept in view by the
court. The gravity for the said
purpose will have to be gathered
from the facts and circumstances
arising in each case. Keeping in
view the consequences that would
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
befall on the society in cases of
financial irregularities, it has been
held that even economic offences
would fall under the category of
"grave
offence"
and
in
such
circumstance while considering the
application for bail in such matters,
the Court will have to deal with the
same, being sensitive to the nature of
allegation made against the accused."

IV-C. Likelihood of the
applicant reoffending:

44. The applicant flouted visa
conditions, overstayed after expiry of visa
and carried on criminal activities in the
country. The applicant has shown no
respect for Indian laws. Further, in view the
ready availability of the said crime
network, the applicant is likely to indulge
in the aforesaid nefarious activities if
released on bail.

V.
Flight
Risk
and
Foreign Nationals:

45. Determination of the fact as to
whether the bail applicant is a flight risk is
of fundamental importance in the criminal
justice system. The possibility of an
accused fleeing from justice after being
enlarged on bail is a real and persisting one.
The menace is grave enough to put the
credibility of the criminal justice system
and the foundations of law in the society at
risk. The legislature and the courts have
created measures to prevent accused
persons
escaping
justice
after
being
enlarged on bail.

V-A. System of Sureties

46. The purpose of sureties and
their importance in the criminal law justice
system cannot be stated more eloquently
than the following passage in King vs
Porter8 :

"It is to the interest of the
public that criminals should be
brought to justice. Responsibility is
fixed on the sureties to see that
such a person does not escape. A
duty is thus cast on the Court, in
accepting or rejecting a surety, to
see the sureties are solvent and
persons of sufficient vigilance to
secure the appearance and prevent
the absconding of the accused."

47. The liability of surety is
limited to the extent of forfeiture of surety
amount when the accused becomes a
fugitive from the court process. This well
settled position of law was stated by the
Delhi High Court in Zoro Daniel Vs.
State9 , as under:

"8.
The
liability/responsibility of the surety
is to produce the accused as and
when required by the Court. If he
fails then he has to deposit the
surety amount."

48. The probability of an accused
to appear and take his trial was held to be a
proper test while examining the grant of
bail in Nagendra Vs. King Emperor10.
The said observations were cited with
approval
by
the
Supreme
Court
in
Gurbaksh Singh Sibbia v. State of
Punjab11.

"The requirements as to
bail are to secure the attendance of
the accused at the trial: R.v.
Rose(1). The proper test to be
applied in the solution of the
7 All. Ryen @ Ren Chao Vs. State of U.P.
1021
question, whether bail should be
granted or refused, is whether it is
probable that the party will appear
to take his trial: Re Robinson (2),
R. v. Scaife (3)"

49. An elaborate framework of bail
bonds and sureties and coercive measures
has been provided for in the Criminal
Procedure Code to deter the accused from
fleeing
justice
and
to
ensure
their
attendance at the trial proceedings without
any break.

50. The concept of sureties is
founded on the fact that a person has local
roots and his sureties are prepared to stand
assurance for his presence in the court
during the trial. Surety demands imposed
on the accused also serve to prevent him
from entertaining any thoughts of escaping
justice after being enlarged on bail. The
system of sureties has proved to be an
effective system which deters the accused
from avoiding the trial process.

51. However, the said scheme of
deterrence fails when the accused is not
dissuaded
by
the
consequences
of
absconding.

V-B. Coercive jurisdiction of
courts

52. The trial courts as a matter of
practice have also successfully adopted
measures available in law to compel the
appearance of the accused persons. These
courses of action available with the courts
include taking out coercive measures like
bailable warrants, non bailable warrants
and proceedings for attachment of the
properties of the accused as per law. The
measures so adopted by the learned trial
courts have ensured that the fugitive
accused are brought to justice in good time.

53. The concept of sureties
undoubtedly is a system of credible
deterrence and is serving the process of
courts well. But the latter system of
enforcing attendance of witnesses by
issuance of coercive measures has proved
most efficacious if the sureties fail to
ensure the presence of the accused.

54. The issue of sureties to be
submitted
by
foreign
nationals
and
amenability of such persons to coercive
measures adopted by the Courts in case
they flee the territorial boundaries of India
require special and a distinct consideration.
The evolution of law in regard to sureties
from foreign nationals goes to show that
the constitutional courts in India were
conscious of the complex nature of the
issue.

55. Foreign nationals in India may
have difficulties in arranging local sureties
and may even fail to do so. Law has been
evolved by constitutional courts to mitigate
the aforesaid problems faced by nationals
to enable them to enjoy the liberty granted
by bail.

56. Deposit of passport is a form
of surety created by the courts for foreign
nationals. (See: Supreme Court Legal Aid
Committee
representing
undertrial
Prisoners Vs. Union12)

57. Another condition which has
been accepted by the Supreme Court in
Supreme Court Legal Aid Committee
(supra) relates to a certificate of assurance
from Embassy. The relevant directions read
thus:
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
(i) The undertrial accused
entitled to be released on bail shall
deposit his passport with the
learned Judge of the Special Court
concerned and if he does not hold a
passport, he shall file an affidavit to
that effect in the form that may be
prescribed by the learned Special
Judge. In the latter case the learned
Special Judge will, if he has reason
to doubt the accuracy of the
statement, write to the Passport
Officer concerned to verify the
statement and the Passport Officer
shall verify his record and send a
reply within three weeks. If he fails
to reply within the said time, the
learned Special Judge will be
entitled to act on the statement of
the undertrial accused;
(ii) the undertrial accused
shall on being released on bail
present himself at the police station
which has prosecuted him at least
once in a month in the case of those
covered under clause (i), once in a
fortnight in the case of those
covered under clause (ii) and once
in a week in the case of those
covered by clause (iii), unless leave
of absence is obtained in advance
from the Special Judge concerned;
(iii) the benefit of the
direction in clauses (ii) and (iii)
shall not be available to those
accused persons who are, in the
opinion of the learned Special
Judge, for reasons to be stated in
writing, likely to tamper with
evidence
or
influence
the
prosecution witnesses;
(iv) in the case of undertrial
accused who are foreigners, the
Special
Judge
shall,
besides
impounding their passports, insist
on a certificate of assurance from
the Embassy/High Commission of
the country to which the foreigner
accused belongs, that the said
accused shall not leave the country
and shall appear before the Special
Court as and when required;
(v) the undertrial accused
shall not leave the area in relation
to which the Special Court is
constituted
except
with
the
permission of the learned Special
Judge;

58. The aforesaid directions have
been lately clarified by the judgment of the
Supreme Court in Frank Vitus Vs.
Narcotics Control Bureau and Ors.13 by
holding thus:

"11. Now, we come to the
decision of the Supreme Court
Legal Aid Committee1 relied upon
by the High Court. In the first part
of paragraph 15, the prayers made
in the petition filed before this
Court have been set out. We are
quoting
the
relevant
part
of
paragraph 15, which reads thus:
"15. But the main reason
which
motivated
the
Supreme
Court Legal Aid Society to file this
petition under Article 32 of the
Constitution was the delay in the
disposal of cases under the Act
involving foreigners. The reliefs
claimed included a direction to
treat further detention of foreigners,
who were languishing in jails as
undertrials under the Act for a
period exceeding two years, as void
or in any case they be released on
bail and it was further submitted by
counsel that their cases be given
priority over others. When the
7 All. Ryen @ Ren Chao Vs. State of U.P.
1023
petition came up for admission it
was pointed out to counsel that
such
an
invidious
distinction
between
similarly
situate
undertrials who are citizens of this
country and who are foreigners
may not be permissible under the
Constitution and even if priority is
accorded to the cases of foreigners
it may have the effect of foreigners
being permitted to jump the queue
and slide down cases of citizens
even if their cases are old and
pending
since
long.
Counsel
immediately realised that such a
distinction if drawn would result in
cases of Indian citizens being
further delayed at the behest of
foreigners, a procedure which may
not be consistent with law. He,
therefore, rightly sought permission
to amend the causetitle and prayer
clauses of the petition which was
permitted.
In
substance
the
petitioner
now
prays
that
all
undertrials who are in jail for the
commission of any offence or
offences under the Act for a period
exceeding two years on account of
the delay in the disposal of cases
lodged against them should be
forthwith
released
from
jail
declaring their further detention to
be illegal and void and pending
decision of this Court on the said
larger issue, they should in any
case
be
released
on
bail.
............." (emphasis added) In
the same paragraph 15, directions
have been issued which read thus:
"We, therefore, direct as
under:
(i) Where the undertrial is
accused of an offence(s) under the
Act prescribing a punishment of
imprisonment of five years or less
and fine, such an undertrial shall be
released on bail if he has been in
jail for a period which is not less
than half the punishment provided
for the offence with which he is
charged and where he is charged
with more than one offence, the
offence
providing
the
highest
punishment. If the offence with
which he is charged prescribes the
maximum fine, the bail amount
shall be 50% of the said amount
with two sureties for like amount.
If the maximum fine is not
prescribed bail shall be to the
satisfaction of the Special Judge
concerned with two sureties for like
amount.
(ii) Where the undertrial
accused
is
charged
with
an
offence(s) under the Act providing
for punishment exceeding five
years and fine, such an undertrial
shall be released on bail on the
term set out in (i) above provided
that his bail amount shall in no case
be less than Rs 50,000 with two
sureties for like amount.
(iii) Where the undertrial
accused
is
charged
with
an
offence(s) under the Act punishable
with minimum imprisonment of ten
years and a minimum fine of
Rupees one lakh, such an undertrial
shall be released on bail if he has
been in jail for not less than five
years provided, he furnishes bail in
the sum of Rupees one lakh with
two sureties for like amount.
(iv) Where an undertrial
accused
is
charged
for
the
commission
of
an
offence
punishable
under Sections
31 and 31A of the Act, such an
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
undertrial shall not be entitled to be
released on bail by virtue of this
order.
The directives in clauses
(i), (ii) and (iii) above shall be
subject to the following general
conditions:
(i) The undertrial accused
entitled to be released on bail shall
deposit his passport with the
learned Judge of the Special Court
concerned and if he does not hold a
passport, he shall file an affidavit to
that effect in the form that may be
prescribed by the learned Special
Judge. In the latter case the learned
Special Judge will, if he has reason
to doubt the accuracy of the
statement, write to the Passport
Officer concerned to verify the
statement and the Passport Officer
shall verify his record and send a
reply within three weeks.