Approvers Cannot Be Held Longer Than Principal Accused: Rajasthan HC Grants Bail to Bangladeshi Nationals in Kidney Racket Case
Rajasthan High Court held that two Bangladeshi approvers in an illegal kidney transplantation case could not remain in custody after their statements were recorded, when all principal accused had already been bailed out.
Justice Anoop Kumar Dhand, sitting singly at the Jaipur Bench, granted bail on 21 May 2026 to two Bangladeshi nationals who had turned approvers in an illegal kidney transplantation and human trafficking case registered under FIR No. 319/2024 at Police Station Jawahar Circle, District Jaipur City (East). The petitioners, Nurul Islam and M.D. Ahsaanul Kobir, had been in judicial custody since 23 April 2024, more than two years, even as every principal accused in the same case had long been released on regular bail under Section 439 Cr.P.C. The court held that keeping approvers in custody indefinitely, after their statements had been recorded and when no early end to the trial was in sight, placed them in a position worse than the very accused they had helped prosecute, and violated the right to life and personal liberty under Article 21 of the Constitution.
The Dispute Before the High Court
FIR No. 319/2024 was registered for offences punishable under Sections 419, 420, 471 and 120B IPC in connection with an alleged illegal kidney transplantation racket. The petitioners were arrested on 23 April 2024. They subsequently became approvers for the prosecution: on the basis of their statements, co-accused persons were arrested and charge-sheeted. The co-accused were thereafter granted bail under Section 439 Cr.P.C., but the petitioners continued to be held on the sole ground that they were approvers.
When the trial stalled, the petitioners filed an earlier petition, S.B. Criminal Misc. Petition No. 5888/2025, seeking bail. This Court, by order dated 24 November 2025, did not grant bail at that stage. Instead, it directed the Trial Court to first record the petitioners' statements under Section 306(4) Cr.P.C. and gave liberty to renew the bail prayer once that was done.
The statements were duly recorded, Nurul Islam as PW-1 and M.D. Ahsaanul Kobir as PW-2. The petitioners then filed the present petition, S.B. Criminal Miscellaneous (Petition) No. 2038/2026, seeking release on bail for the remainder of the trial.
The State's Objection and the Section 306(4) Bar
The Government Advocate-cum-Additional Advocate General opposed the petition squarely on the text of Section 306(4) Cr.P.C., which requires a person who has accepted a tender of pardon to be kept in custody until the conclusion of the trial. The State's position was that since the trial had not reached its final stage, the bar was absolute and the petition had to be rejected.
The court found no substance in this objection. It read Section 306(4) as requiring custody only until the approver's examination as a witness is complete, not until the entire trial concludes. Once the statements had been recorded, the mandatory custodial purpose of the provision had been served.
The Larger Bench Precedent: Noor Taki alias Mammu v. State of Rajasthan
The court traced the legal position to a three-Judge Bench decision of the Rajasthan High Court in Noor Taki alias Mammu v. State of Rajasthan, reported in AIR 1987 (Raj) 52, which arose from a reference out of Criminal Misc. Bail Application No. 1687/1985. The precise question referred was whether an approver can be detained for an indefinite period even when the principal accused has been released on bail.
The Larger Bench answered that Section 439 Cr.P.C. does not apply to an approver at all, because once pardon is granted the approver's status is that of a witness, not an accused. There is therefore no statutory right to bail. However, the Larger Bench held that Section 482 Cr.P.C. vests the High Court with inherent power to enlarge an approver on bail in exceptional cases, particularly where the approver has already been examined, has not violated the conditions of pardon, and no early end to the trial is visible. The Larger Bench also held that if detention has been so prolonged as to outlive the sentence that would have been imposed on conviction, it can be declared illegal as violative of Article 21.
In the Noor Taki case itself, the Larger Bench confirmed interim bail where the approver had been in detention for more than 22 months, had fulfilled all pardon conditions, and more than 20 witnesses remained to be examined. The court directed that the approver continue on bail during the pendency of the trial on a personal bond of Rs. 5,000.
Justice Dhand applied this precedent directly. The petitioners had been in custody for over 24 months, their statements had been recorded, they had fulfilled all pardon conditions, all principal accused were on bail, and dozens of witnesses remained to be examined with no prospect of an early conclusion.
Article 21 and Foreign Nationals
A separate dimension arose because both petitioners are Bangladeshi nationals who had entered India on medical visas. Those visas had expired. The State argued that if released, their chances of returning to face trial were negligible and bail should therefore be refused.
The court rejected this as a ground to deny bail altogether. It held that the protection under Article 21, the right to life and personal liberty, including the right to a fair and speedy trial, extends to all persons and is not confined to Indian citizens. Foreign nationals facing trial in India are entitled to the right to life with dignity. Prolonged detention without trial amounts to a violation of Article 21 regardless of the detainee's nationality.
The court drew on the Supreme Court's decisions in Sunil Batra v. Delhi Administration, reported in 1980 (3) SCC 488, and K.S. Puttaswamy & Anr. v. Union of India & Ors., reported in 2017 (10) SCC 1, both of which affirm that the right to dignified life under Article 21 inheres in every human being, including foreigners.
The Frank Vitus Framework for Bailing Foreign Nationals
On the question of what procedural safeguards apply when a foreign national is granted bail, the court relied on the Supreme Court's directions in Frank Vitus v. Narcotics Control Bureau & Ors., reported in (2025) 3 SCC 1. The Frank Vitus directions require the court granting bail to a foreigner to direct the State or prosecuting agency to immediately communicate the bail order to the concerned Registration Officer appointed under Rule 3 of the Registration of Foreigners Rules, who in turn must inform all concerned authorities including Civil Authorities. This enables the authorities under the applicable foreigners legislation to take appropriate steps — including, where warranted, refusing permission to depart from India.
The court noted that the Foreigners Act, 1946, Foreigners Rules, 1992 and Foreigners Order, 1948 have since been repealed and replaced by the Immigration and Foreigners Act, 2025, the Immigration and Foreigners Rules, 2025 and the Immigration and Foreigners Order, 2025. It found the relevant provisions of the old and new regimes to be pari materia. Clause 5 of the Immigration and Foreigners Order, 2025 vests discretion in the Immigration Officer to grant or refuse permission to depart from India, including where a person's presence is required by any court. The court held that the power to restrict a foreigner's departure is entirely independent of the criminal court's power to grant bail.
Senior Advocate Bharat Vyas, Additional Solicitor General, and Senior Advocate V.R.S. Bajwa were requested by the court to assist on these issues and both confirmed this framework.
Outcome
The petition was allowed. The petitioners were granted bail subject to each furnishing a personal bond of Rs. 5,00,000 along with two sureties of Rs. 2,50,000 each, to the satisfaction of the Trial Court, with the condition that they appear before the Trial Court whenever called upon to do so.
The court issued a direction to the Principal Secretary, Department of Home, Government of Rajasthan; the Director General of Police; the Commissioner of Police, Jaipur; the Director, Department of Prosecution; and the Government Advocate-cum-Additional Advocate General to communicate the bail order to the Immigration Officer/Reporting Officer in terms of Sections 3 and 7 of the Immigration and Foreigners Act, 2025 and the corresponding Rules and Order of 2025. A copy of the order was directed to be sent to the Immigration Officer to take appropriate steps in accordance with law.
The Trial Court was separately directed to expedite the proceedings, which had been pending since 2024 and were proceeding at what the court described as a snail's pace. The Trial Court was directed to write to the jurisdictional Superintendent of Police to serve summons and bailable warrants on prosecution witnesses and was told not to entertain unnecessary or unwarranted delaying tactics by any accused person.