Can Arrested Foreign Nationals Claim Protections Under Article 22? Karnataka High Court To Decide

The Karnataka High Court is set to consider whether foreign nationals booked in criminal proceedings can claim protections available under Article 22 of the Constitution regarding arrest, more so when the person has overstayed without a valid visa or without registering with the Foreigners Regional Registration Office.

Justice M Nagaprasanna on Tuesday (February 3) was hearing pleas filed by two Nigerian nationals seeking direction to be released on the ground that they have been taken in alleged illegal custody and were produced before the magistrate after 24 hours in violation of prescribed procedure.

For context, Article 22 of the Constitution provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

And every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate. No person shall be detained in custody beyond the said period without the authority of a magistrate.

The petitioners challenged the arrest on the ground that "grounds of arrest" that ought to have been furnished to petitioner at time of arrest or two hours before production before magistrate, have not been provided in compliance with Supreme Court's decision in Mihir Rajesh Shah.

The court had thus directed the FRRO to get the status of the petitioner.

After hearing the matter for some time the court in its order dictated, "While the merit of the matter whether petitioner would be entitled to protection of Article 22 as observed by Apex Court, more so in light of the fact that petitioner is a Nigerian national, the matter would require an answer".

Meanwhile appearing for the FRRO Deputy Solicitor General of India Shanthi Bhushan submitted that the petitioner came on a business visa to India in 2015 and has continued to stay on different visas.

The allegation is that petitioner no. 1 has impersonated the other, and have been staying in city beyond permissible visa deadline; therefore they are persons who are over staying.

It was alleged that petitioners have been booked in an NDPS Act case, accused of selling 400 gm of MDMA and Cocaine but they are projecting that their right as Nigerian nationals under the Constitution of India are violated.

The DSGI submitted that matter must be considered as foreign nationals, not only these but several others are staying in the city without valid visa, and are overstaying which requires an investigation in the least. He submitted that "today it maybe Nigerian nationals tomorrow it maybe other nationalities which pose a serious threat to the national security". According to the DSGI in terms of the rules a foreign national which enters into the shores of the nation/state is required to register with FRRO within 14 days.

"The petitioners even today are not registered before the FRRO therefore there is gross dereliction of duty on part of the State to have tackled these foreign nationals who are staying in the city without registration with the FRRO. It is quite surprising why the State is displaying astounding silence in cases of this kind. However whether is petitioner is entitled to be set at liberty on applicability of Article 22 of constitution of india notwithstanding the fact of them being Nigerian national and caught for possession and sale of MDMA, cocaine would be answered day after tomorrow," the court said in its order.

It further directed the State government to place on record necessary steps taken to track trace foreign nationals overstaying in city without valid visa or without registration with FRRO.

The matter is listed on February 5.

Case title: EMEKA JAMES IWOBA @ AUSTIN NOSO IWOBA and Anr. v/s THE STATE OF KARNATAKA

CRL.P 11347/2025