Introduction

The term ‘arrest’ means deprivation of a person’s freedom by legal authority. It may be done by touch or confining the body of a person. If the person resists then the police can also use legal force to affect the arrest. It is a form of State constraint that is applied to a person, during which the person is placed under detention. It is an important element that the person who is imprisoned is deprived of his right to move freely.

Arrest can be made with or without warrant. Article 21 of the Constitution of India speaks, “No person shall be deprived of personal liberty except according to the procedure established by law”.

Protection under Article 21

Article 21 of Constitution of India covers the rights of arrested, under trials and convicts. The Article says that the treatment of such people has to be humane and in the manner prescribed by law. In the case of Maneka Gandhi v. Union of India, AIR 1978 SC 597– It was held by the Supreme Court that the State and police as its principal law enforcing agency have the undoubted duty to bring offenders to book. The law and procedure adopted by the State for achieving this laudable social objective have to conform to civilized standards. The procedure adopted by the State must, therefore, be just, fair and reasonable.

In Nastor Farirai Ziso v. NCB, Crl. M.A. No.4032/2022 in BAIL APPLN. 1960/2020– Very recently, the High Court of Delhi held that a foreign national cannot be detained and denied benefits of Section 445 of the Criminal Procedure Code (CrPC) on mere apprehension of the prosecution that the accused may flee away from the course of justice. The decision was made by the single-judge bench of Justice Anoop Kumar Mediratta, wherein the Court observed that it would be a negation of the principle of rule of law and violative of constitutional mandate and principles of human rights in case benefit of Sec. 445 of CrPC is denied to a foreign national on the above basis.

Facts in brief

In the instant case, the application was filed u/s 445 r.w. Sec. 482 of the CrPC for modification of bail order and for seeking directions to release the applicant on furnishing personal bond. The Petitioner was undergoing trial for possession of controlled substance under Sec. 9A/ 25A of the Narcotic Drugs And Psychotropic Substances Act, 1985 (NDPS Act).

Contentions of the parties

It was submitted by the Counsel for the petitioner that the case is at the initial stage of prosecution and the petitioner is in custody since about 2 years and 8 months. The petitioner is unable to discharge her obligation of furnishing even reduced surety bond being a foreign national and has not been able to avail the benefit of bail despite repeated modifications by this Court.

The counsel for petitioner submitted that the applicant has contacted Embassy of Zimbabwe many times however, he has not been able to obtain surety and she does not know anyone in this country, who can discharge the obligation of surety. The contentions of the Petitioner were opposed and it was stated that there were chances of the petitioner to flee away from the course of justice if she is released on furnishing of cash in lieu of surety.

Observations of the High Court

The High Court noted the benefits of Sec. 445 CrPC and stated that it cannot be denied on the contention of the prosecution, said: “This would lead to incarceration of accused for an unlimited period till conclusion of trial even despite being granted the discretion of bail by the courts. A mere apprehension expressed by the prosecution that the accused may flee the course of justice, cannot be the sole determinative factor for denying benefit of Section 445 Cr.P.C. without consideration of other circumstances and balancing factors in this regard.”

The High Court added that this apprehension may still theoretically persist even in a case where surety bond is furnished but the liability of surety is only to the extent of amount mentioned in the surety bond.

It was opined by the Court that denying deposit of cash in lieu of surety in all such cases may become punitive affecting the bifocal interest of justice to the individual involved as well as the society. The reference was made to the case of Gudikanti Narasimhulu & Ors Vs. Public Prosecutor, High Court of Andhra Pradesh, 1977 Latest Caselaw 228 SC.

Concluded by the Court

The Court noted that the case doesn’t involve the serious embargo of the NDPS Act, remarked that the petitioner, who is a woman and a foreign national, cannot be forced to undergo incarceration till the conclusion of trial merely because she is unable to furnish a local surety bond. It was concluded that to meet the end of justice, it is important to extend the benefits of Sec. 445 CrPC to the petitioner.