Bail Can't Be Converted Into Detention: Kerala High Court Quashes Condition Requiring Foreigner To Stay In Transit Home

Dr. Justice Kauser Edappagath held that directions to remain in the detention centre/ transit home while granting bail to a foreign national would amount to keeping the accused in some kind of confinement even after he is released on bail and hence such condition is violative of the fundamental right guaranteed under Article 21 of the Constitution.

The Court delivered the judgement in a writ petition which sought quashing of conditions imposed by a Judicial First Class Magistrate that required a Bangladeshi national, accused of forging documents and attempting to exit India using a fraudulently obtained Indian passport, to remain in a transit home under civil authority supervision even after being granted default bail.

The petitioner submitted that the conditions that required the petitioner to remain in a transit home constitute a form of continued and indefinite detention, defeating the very purpose of default bail, and hence violate the fundamental right guaranteed under Article 21 of the Constitution of India.

The petitioner further submitted that Foreigners Order, 1948, only enables Civil Authorities to place the foreigner involved in a crime in India at the detention centre, and such a power cannot be extended to the Magistrate/Court while granting bail.

The Respondents submitted that relaxing the conditions could lead to the petitioner obtaining fake Indian documents under a different identity. It was further submitted that Article 19 of the Constitution does not grant the right to move freely within India to foreigners, therefore, the Magistrate was justified in imposing the conditions.

The Court observed that under Section 437 of Cr.PC, the Court can impose conditions in the interest of Justice while releasing a person on bail under Section 167(2). Relying on Kunal Kumar Tiwari v State of Bihar [(2018) 16 SCC 74] and Munish Bhasin v State (NCT Delhi) and another [(2009) 4 SCC 45], the Court observed that the conditions must not be arbitrary, fanciful, or extend beyond the purpose of granting bail.

The Court further reaffirmed that the right to default bail under Section 167(2) of Cr.PC is a fundamental right and not merely a statutory right.

“The said right flows from Article 21 of the Constitution of India and is an indefeasible part of the right to personal liberty. The court cannot frustrate or defeat this right of the accused through unreasonable conditions. Though while granting bail, the Court can impose conditions in the interest of justice, restricting the exercise of fundamental rights of an accused under the cover of such a condition is not legally sustainable.” Court noted.

The Court further observed that under Section 3 of the Foreigners Act, 1946, the Foreigner Order, 1948 is issued. According to Clause 5(1) (b) of the Order, no foreigner shall leave India without the leave of the Civil Authority having jurisdiction. As per Clause 5(2)(b) of the Order, when a foreigner's presence is required in India to answer a criminal charge, permission to leave India must be refused.

The Court noted that under clause 11 of the Order, the Civil Authority can impose restrictions on the movements of a foreigner and this power is independent of the power to grant bail.

“The power vested with the Civil Authority under the Foreigners Order, 1948, to impose restrictions on the movement of a foreigner cannot be imported to sub-clause (3) of Section 437 of Cr.PC, nor be incorporated as a condition while granting bail to a foreign national. The conditions incorporated in the order granting bail must be within the four corners of Section 437(3).” Court noted.

The Court thus held that directions to remain in the detention centre/ transit home while granting bail to foreign nationals would amount to violation of the fundamental right guaranteed under Article 21 of the constitution.

“Directions to remain in the detention centre/transit home while granting bail to a foreign national would amount to keeping the accused in some kind of confinement even after he is released on bail….Such a condition is violative of the fundamental right guaranteed under Article 21 of the Constitution, which is available not only to Indian citizens but to foreign nationals as well. A foreign national facing trial in India is entitled to right to life and dignity under Article 21.” Court added

The Court thus held that confinement in a transit home without statutory backing amounts to judicial overreach. The Court observed that the direction to the petitioner to remain in transit home converts the bail order into a detention order under the Foreign Order, 1948 and hence it is legally unsustainable.

The Court has also relied on Frank Vitus v Narcotic Control Bureau and Others [AIR 2025 SC 546], where it was held that while releasing a foreigner on bail, the Court should direct the investigating agency or the State, to immediately inform the concerned Registration Officer appointed under Rule 3 of the Registration of Foreigners Rules, 1992 about the grant of bail so that the Registration Officer can bring the fact of the grant of bail to the notice of concerned Civil Authority.

The Court thus disposed of the petition by observing that the confinement clauses in bail order are legally unsustainable and deleted the conditions. It has also directed the Foreigners Regional Registration Officer (FRRO) to pass appropriate orders after hearing the petitioner within a period of one month.

Case Title: Apple Barua v State of Kerala and Anr

Case No: WP(Crl.) 795/ 2025

Citation: 2025 LiveLaw (Ker) 847

Counsel for Petitioner: Niharika Hema Raj

Counsel for Respondents: O M Shalina (DSGI), Krishna S (CGC), Sangeetha Raj (PP)