Foreign National Can't Seek Release From 'Executive Detention' Under Foreigners Act In Bail Proceedings: Delhi High Court

The Delhi High Court has ruled that a foreign national cannot seek release from “executive detention” imposed by the Central Government by invoking Section 14 and Section 14A of the Foreigners Act under bail proceedings.“Ergo, bail proceedings relate only to the release of a person from 'judicial custody' and cannot be employed to seek release from 'executive detention,” Justice Anup Jairam Bhambhani said. Section 14 of the Act deals with penalties for violating the enactment. Section 14A imposes penalties for entering restricted areas without a permit or valid documents. The Court observed that a foreign national aggrieved by any action taken by the Central Government under the Foreigners Act or the Foreigners Order would be at liberty to resort to legal remedies before the appropriate governmental department or court of law but not in a bail petition.“The anomaly is that if a foreign national is released from judicial custody on bail while facing charges under section 14 or section 14-A of the Foreigners Act, how can the same foreign national be detained again at a detention centre/restriction centre by executive order for violation of the very same provisions of section 14 or 14-A of the Foreigners Act, it said.Justice Bhambhani gave bail to a foreign national charged under Section 366B, 370, 419, 420, 465, 466, 467, 468, 471, 474, 109, 120B, 34 and 174A of the Indian Penal Code, 1860 and under Section 14 of the Foreigners Act, 1946. The case against her was that she was entrapped by some persons and called to India through Nepal in December 2019 and that her passport was taken away by those posing as Indian officials outside the Indian Embassy in Nepal on the assurance that she will be granted a five year work-visa or permit upon her arrival in India. It was alleged that she paid Rs.5 lakh to the said individuals for obtaining the visa.The Court noted that there were two aspects in thw case- one, the foreigner's position as an undertrial facing charges under Section 14 of the Foreigners Act and Sectio 174A of IPC for past infractions of visa rules and two, her position as a foreign national, who continues to remain in India without any valid visa.It said that though in both cases i.e. judicial custody or executive detention, the foreigner faced deprivation of her liberty but the nature of deprivation of liberty was different and distinct.The Court said that the Central Government's power to issue directions prohibiting or regulating or restricting entry or departure or continued presence of foreigners in India is not a judicial function performed by the Central Government but a purely executive act. “To be absolutely sure, the scope of a bail petition is only to consider whether or not, in a given case, an under-trial (or a convict seeking suspension of sentence) is to be released from the custody of the court, namely 'judicial custody' to the custody of a surety. It is not the remit of this court while dealing with a bail petition to verify, or endorse, or direct grant of any visa status to a foreign national, who has sought the relief of enlargement on bail,” the Court said. While granting regular bail to the foreigner, the Court clarified that nothing in the order be construed as interdicting any action that the Central Government or FRRO may take against her arising from any alleged contravention of any provisions of the Foreigners Act or any other law governing her entry, continued presence, or exit in or from India.“Needless to clarify however, that without the prior permission of the learned trial court, no action shall be taken by the Central Government against the petitioner that detracts from the direction issued by this court that the petitioner shall not leave the National Capital Territory of Delhi while on regular bail,” it said.Title: AIZAZ KILICHEVA @ AZIZA @ MAYA v. STATE NCT OF DELHICitation: 2025 LiveLaw (Del) 70Click here to read order

Foreign National Can't Seek Release From 'Executive Detention' Under Foreigners Act In Bail Proceedings: Delhi High Court

Nupur Thapliyal

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