The Jammu & Kashmir and Ladakh High Court has reinforced that discrimination based on nationality has no place in bail proceedings.

The court asserted that bail decisions should hinge on the specific facts of each case, stressing that while conditions may be set to ensure an accused's appearance at trial, nationality alone cannot be a basis for denying bail.

Justice Sindhu Sharma presided over a case involving Shagufta Bano, a foreign national accused of offenses under Section 370 of the Indian Penal Code and Sections 14A and 14C of the Foreigners Act, 1946. Bano, along with co-accused Asmat Ara and Mohammad Shamim Bhat, faced allegations of human trafficking after a police raid uncovered non-local women in their Budgam residence, leading to their arrests on October 27, 2022.

Initially, Bano and her co-accused were granted interim bail on November 25, 2022, which was made absolute in December. However, during later proceedings concerning other co-accused, the Additional Sessions Judge in Budgam denied bail to 14 Myanmar nationals and subsequently revoked Bano's bail, placing her in judicial custody on August 10, 2023.

Challenging this decision, Bano, represented by Advocates Mir Majid Bashir and Tawfiq Hussain Khawaja, argued that the trial court's revocation lacked proper notice and justification. Her defense highlighted her cooperation with the investigation, her role as a mother of two (including a minor), and her long-term residency in India with her husband. Bano contended that the human trafficking allegations were unfounded and that she had been wrongly implicated.

Government Advocate Faheem Shah opposed the plea, claiming Bano, originally from Burma (Myanmar), was in India without valid documents. He alleged that she participated in trafficking women from Burma for prostitution, which justified her continued detention.

The court examined relevant facts and legal precedents, referencing Supreme Court cases like *Gurcharan Singh v. State (Delhi Administration)* and *Sanjay Chandra v. CBI*. It reiterated that bail is at the discretion of the judiciary, taking into account factors such as the seriousness of the offense, the accused's connections to victims and witnesses, and the risk of fleeing.

The court emphasized that the aim of bail is to ensure the accused's presence at trial, not to serve as a punitive measure. It concluded, "The law does not permit discrimination between foreign nationals and Indian citizens in bail matters; each case must be assessed based on its unique circumstances. While the court may impose conditions to ensure availability for trial, bail cannot be denied solely due to nationality."

Noting Bano's status as a foreign national with overstayed documentation and the seriousness of the charges, the court acknowledged her ongoing custody since the revocation of her bail. However, it pointed out that her previous bail, granted in November 2022 and confirmed in December, significantly weighed in her favor, particularly given that the investigation was complete.

The court also considered the petitioner’s status as a mother, and held : “Keeping in view the fact that the petitioner is a woman having two minor child and a small daughter, aged one and a half years, who are dependent on her and require her care and attention, and considering that her incarceration has deprived her of the opportunity to provide such care, coupled with the fact that she was already on bail before it was cancelled. The petitioner is residing here for the last so many years and there are no sufficient reasons to have a reasonable apprehension that the petitioner will flee from justice and it is also not expedient, in the interest of justice, to keep the petitioner in custody at this stage in these circumstances.”

Consequently, the court granted bail to the petitioner, allowing her to be released upon providing a personal bond and two sureties, one from her husband and another approved by the trial court.