‘Foreigners facing trial in India entitled to protection under Article 21’: Rajasthan High Court orders speedy trial

The observation came in a bail plea of two Bangladeshi nationals facing charges for illegal organ transplantation under Sections 419 (cheating by personation), 420 (cheating), 471 (using forged documents) and 120B (criminal conspiracy) of IPC. They, however, turned approver in the case.

Arguments

Advocate K C Sharma appearing for the accused, submitted that an FIR was registered against certain persons in connection with illegal kidney transplantation and human trafficking.

The two foreign nationals were subsequently arrested with other co-accused persons who are locals.

The lawyer further submitted that all the co-accused had been granted bail, but the two foreign nationals were not released on bail as they turned approver in the case.

The court was informed that despite a chargesheet, charges hadn’t been framed and the statements of the foreign nationals had not yet been recorded. More than one-and-half years have passed and are still in custody, Sharma added.

The court noted that the foreign nationals were refused bail by a trial court due to the rider in Section 306(4) of Code of Criminal Procedure.

Section 306(4) says, “Every person accepting a tender of pardon shall be examined as a witness in the court of the magistrate taking cognizance of the offence and in the subsequent such trial, if any, but such person shall not be granted benefit of bail and should be detained in custody until the termination of the trial”.

State’s counsel Rajesh Choudhary, on the contrary, contested the arguments and submitted that the two foreign nationals came from Bangladesh to Jaipur to get the benefit of kidney transplantation.

He further contended that according to the provisions under Section 306(4), the approver is required to be detained in jail unless and until their statements are recorded or the trial is completed.

Findings

The high court held that the trial court cannot defer the matter “from one day to another unnecessarily” causing “unnecessary delay” in framing the charges.

“The trial court cannot defer the matter from one day to another unnecessarily, by entertaining the unwanted requests made by any of the parties and thereby cause unnecessary delay in framing the charges,” it said.

The order observed that the protection under Article 21 extends to all persons and not just to Indian citizens alone.

“They have the fundamental right to speedy trial under Article 21 of the Indian Constitution. The protection under Article 21, which guarantees the right of life and personal liberty, extends to all persons and this right is not confined to Indian Citizens alone and it is available to the foreign Nationals as well, who are not the citizens of India,” the court said.

The court consequently directed the trial court to pass orders on charge/discharge, after hearing the arguments, within four weeks and asked it to record the statement of the two foreign nationals on priority, if the charges were framed.

Before parting with the order, the high court allowed them to approach it for bail, after their statements were recorded before the trial court.