The Court of Session for Greater Bombay rejected the regular bail application of Muaina Noor Alam Khan @ Moyana Begum Badshah Khan, an applicant accused of illegally immigrating into India and possessing fraudulent documents. Additional Sessions Judge S.B. Pawar (C.R. No. 58), in an order dated March 16, 2024, ruled that the applicant, who is prima facie a foreign national possessing a Bangladeshi passport, poses a significant flight risk. The Court concluded that the fundamental principle of “bail is a rule and jail is an exception” could not be applied to the facts of the present case, especially when the trial was nearing conclusion. The applicant was arrested in connection with FIR No. 325 of 2023 registered with Dadar Police Station for offenses under Section 14 of the Foreigners Act, 1946, sections of the Passport Rules, 1950, and the Foreigners Order 1948.
The Allegations of Illegal Entry and Forgery
The prosecution’s case centers on the allegation that the applicant is a citizen of Bangladesh who illegally entered and resided in India.
- Discovery: The applicant was apprehended on July 21, 2023, near Ravindra Natya Mandir, Dadar (West), Mumbai. She initially gave evasive answers regarding her Indian citizenship documents.
- Evidence Found: It was later revealed that she was holding a Bangladeshi passport and a nikahnama (marriage certificate) with co-accused Noor Alam Jainual Rehman, listing her address as Dhaka, Bangladesh.
- Co-Accused Status: The co-accused, her husband, is currently absconding, and an arrest warrant has been issued against him by the Trial Court.
Applicant’s Plea for Bail
The defense, led by Advocate Sabiha Sayed, argued for bail on several grounds:
- Investigation Completed: The charge-sheet has been filed, rendering further custodial interrogation unnecessary.
- Vulnerable Status: The applicant is a poor lady and has a five-year-old daughter. She has been in custody for eight months and is reportedly suffering from kidney disease.
- Documentary Evidence: She produced an Aadhar Card and a PAN Card, along with her daughter’s Aadhar Card, all showing an address in Navi Mumbai, Thane, to prove her permanent residency.
- Parity: The defense attempted to seek parity with the co-accused (who was granted bail), and relied on the Supreme Court judgment in P. Chidambaram V/s. CBI, citing the principle that bail is the rule.
Court’s Rationale: Flight Risk and Doubtful Documents
The prosecution, represented by APP Sulbha Joshi, opposed the application, specifically pointing to the foreign national status confirmed by the passport and the fact that the trial was at a “fag end,” with only a few witnesses remaining.
The Sessions Judge gave significant weight to the nature of the offense and the risk posed by the applicant:
- Prima Facie Finding of Foreign Nationality: The Court found that the applicant’s Aadhar Card and PAN Card were prima facie doubtful in light of the charges, especially since the charge-sheet confirms she was found with a Bangladeshi passport and her nikahnama listed a Dhaka address.
- Heightened Flight Risk: Given the nature of the charge (illegal immigration) and the documented foreign nationality, the Court concluded that “there is every possibility that she may flee and it will be difficult to secure her presence for trial of the case” if released on bail.
- Distinction on Principle: The Court expressly distinguished the facts from the principle cited by the defense, stating that the rule favoring bail cannot be applied when the applicant is “prima facie a foreign national” and presents a high risk of absconding.
- Absconding Co-Accused: The fact that the co-accused husband was already absconding reinforced the Court’s apprehension regarding the applicant’s potential to evade justice.
- Trial Expediency: The Judge noted that the trial was being proceeded with expeditiously and could be “concluded within short span,” making continued judicial custody justifiable.
Based on the strong prima facie evidence of foreign nationality and the high probability of the applicant fleeing, the Court found it was not a fit case for granting bail. Criminal Bail Application No. 546 of 2024 was rejected.