Trial Courts Cannot Direct Foreign Nationals Be Sent To Detention Centre While Granting Them Bail: Delhi High Court

The Delhi High Court has said that the trial courts cannot direct foreign nationals be sent to a detention centre while granting them bail in cases lodged against them here.

“In any event what must be clarified is that a Court or Magistrates or a Sessions Court cannot as part of enlarging foreign national on bail can also direct the said person to be sent to a detention centre. The Court is not competent to pass such a direction when granting bail as has been conclusively held in various decisions,” Justice Anish Dayal said.

In a judgment passed on May 26, the court said that detention centres are not for judicial custody but a place where a foreign national is detained on an executive order which is the prerogative of the competent authority under the Foreigners Act.

Perusing the provisions of Foreigners Act, 1946, Justice Dayal noted that the Central Government has an option to not just prohibit but also regulate or restrict the presence or continued presence of such an undertrial in India.

“Merely pointing towards all such foreign nationals who are undertrials or suspended post conviction and are a security concern, would not be inconsonance with the letter and spirit of these provisions. Granting such persons, a special permit/visa/travel document would not legitimize their earlier offence of having overstayed in violation of the provisions of the Foreigners Act, but would in fact ensure that they are not confined in a detention centre at state expense, but instead are restricted to a place on conditions as may be prescribed and furnish bond/sureties to ensure compliance of such conditions,” the court said.

Justice Dayal added that restrictions could be made upon foreign nationals for restricting their possibility of travelling out of India without permission.

“This would ensure a judicious balance between recognizing liberty, and a human right, and ensuring the presence of the foreign nationals for the purpose of trial and being subject to restrictions/regulations/conditions,” the court said.

The court was hearing two pleas moved by a Nigerian national challenging an order dated July 14,, 2021, passed by the Foreigners Regional Registration Officer (FRRO) by which he was restricted to move out of a detention centre, until his travel arrangements were made. The foreign national was arrested in an FIR registered under Sections 33, 38 and 58 of the Delhi Excise Act, 2009.

The foreign national had spent 2 years in confinement in detention centre whereas the offences that he was charged with provided sentence of about 6 months and maximum extension upto 3 years.

The issue before the court was regarding the grant of bail to a foreign national but with conditions of being sent to a detention centre, considering that the visa of stay in India of such a national had expired.

Referring to various judgments on the subject, the court said that FRRO’s submission that permission to be released would legitimize their past offence, was “too simplistic a view in the matter.”

“In the considered opinion of this Court, these situations do present themselves before courts on multiple occasions, require more calibrated treatment,” Justice Dayal said.

Ordering release of the foreign national from detention centre, the court said that once he was being enlarged on bail, he could not have been detained without due process of law.

“The fact that he is facing trial for offences under the Excise Act and the Foreigners Act cannot be held against him, considering he still is to be proved guilty post trial. Right now, is the issue of his freedom,” the court said.

It added: “There is no reason why the FRRO cannot consider other possibilities under these provisions i.e. requiring him to be at a particular place (not necessarily a detention centre), imposing restrictions on his movements (like restricting him to an area), regulating his conduct and association with persons; reporting requirements to an authority. There is a vast menu of options available for the FRRO to apply, which may be more in consonance with rights under Article 21, than a summary, plain vanilla order of continuing in the detention centre.”

The court also said that there is no reason to not consider grant of a special visa or stay permit to the petitioner foreign national, which recognizes that he is an undertrial of an overstay offence and has to continue in the country for trial or otherwise.

“Considering that the petitioner now has a valid passport (having been extended by the Nigerian Embassy), the FRRO/any other competent authority of the UOI is directed to consider his application for visa and /or representation for an appropriate order under the Foreigners Act, in light of what has been stated above by this Court,” the court directed.

The court directed his release subject to the condition that he shall furnish a permanent residence address that he proposes to reside at and would report to the local police station every Saturday at 4:00 p.m.

“Further, he would surrender his passport with the Ld. Trial Court and would not leave the NCT of Delhi during the said period. Considering that the petitioner is married to an Indian national…he would also provide the mobile number of his wife and her identity details to the Ld. Trial Court,” the court said.

Advocates Kanhaiya Singhal, Prasanna, Ujwal Ghai and Chetan Bhardwaj appeared for petitioner. ASC Rupali Bandopadhya represented State. 

Title: EMECHERE MADUABUCHKWU v. STATE NCT OF DELHI & ANR.

Citation: 2023 LiveLaw (Del) 470

Click Here To Read Order