Magistrates Or Sessions Court Cannot Direct A Foreign National On Bail To Be Sent To A Detention Centre: Delhi HC

The Delhi High Court has held that the Magistrates or Sessions Court cannot direct a foreign national on bail to be sent to a detention centre.

A Single Bench of Justice Anish Dayal observed, “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. Detention centres are not for judicial custody but a place where a foreign national is detained on an executive order and is the prerogative of the competent authority under the Foreigners Act.”

The Bench said 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 proven guilty post-trial and that the current issue is of his freedom.

Advocate Kanhaiya Singhal appeared for the petitioner while ASC Rupali Bandopadhya and Advocate Manisha Agrawal Narain appeared for the respondents.

Facts -

A batch of petitions was filed by the petitioner who was a Nigerian national seeking set aside of the order passed by the Foreigners Regional Registration Officer (FRRO) he was restricted to move out of Sewa Sadan, Lampur, Narela, Delhi until his travel arrangements were made. The issue under consideration was essentially 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.

An FIR under Sections 33/38/58 of the Delhi Excise Act, 2009, and Section 14 of the Foreigners Act, 1946 and the petitioner was also arrested and moved an application under Section 437 Cr.P.C. seeking regular bail before the Court of MM. MM allowed the bail application of the petitioner, however, directed that the petitioner would be transferred from the jail to the Detention Centre by the IO/SHO where he will be kept till the conclusion of the trial of the case and will be produced before the Court as and when required.

The High Court in the above regard noted, “In this context, and in the background of all these decisions of various courts and the Hon’ble Supreme Court, the submission of the FRRO that by allowing permission to be released would legitimize their past offence is 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.”

The Court said that the petitioner once being enlarged on bail cannot be detained without due process of law.

“The impugned order was therefore untenable on two counts – one, is that no opportunity was ever given to the petitioner to show cause or even a possibility of a hearing/or representation; and two, that other provisions of the Foreigners Act were not considered i.e. order could have been passed under any provision of section 3(2) of the Foreigners Act”, observed the Court.

The Court further noted that 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 and that there is no reason to not consider grant of a special visa/stay permit to the petitioner, which recognizes that he is an undertrial of an overstay offence and has to continue in this country for the purpose of trial or otherwise, in case that is not required, choose to deport him.

“The petitioner has already spent 2 years in confinement in detention centre when the offences that he is charged with under the Excise Act trigger sentence of about 6 months and maximum may extend to 3 years. Even as regards the Foreigners Act offence, he may at the maximum be sentenced for 5 years, of which he has now already been in de facto custody for 2 years. … 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 said decision may be taken within a period of 8 weeks, with due compliance of principles of natural justice, providing him an opportunity to represent”, directed the Court.

Accordingly, the Court disposed of the plea.

Cause Title- Emechere Maduabuchkwu v. State of NCT of Delhi & Anr. (Neutral Citation: 2023:DHC:3872)

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