Courts Cannot Order Detention Of Foreign Nationals In Transit Homes As A Condition For Statutory Bail: Kerala High Court Holds

​The Bench of Justice Kauser Edappagath observed, “The upshot of the above discussions and findings is that the Magistrate/Sessions Court, while granting bail to a foreign national, cannot impose a condition to detain him in a detention home/transit home till the conclusion of the trial. The Magistrate/Court does not have such a power either under Cr.P.C or Bharatiya Nagarik Suraksha Sanhita, 2023. The phrase “interest of justice” under clause (c) of Section 437(3) of Cr.P.C. cannot be stretched to include such a power. Confinement in a transit home without statutory backing amounts to judicial overreach. The direction to the petitioner in Ext.P2 order to remain in transit home converts the bail order into a detention order under the Foreigners Order, 1948. Therefore, the condition Nos. 4 and 5 in Ext.P2 are not legally sustainable and liable to be quashed.”

Advocate Niharika Hema Raj appeared on behalf of the Petitioner, whereas Deputy Solicitor General of India O.M. Shalina, CGC Krishna S., and PP Sangeetha Raj. appeared for the Respondents.

Facts of the case

The Petitioner is a Bangladeshi National and accused of the alleged offences under Sections 465, 468, 471, 419 r/w 34 of IPC, Section 14(a) of the Foreigners Act, 1946, and Section 12(1A), 12(1)(b) of the Passport Act, 1967. It was the case of the prosecution that the Petitioner, along with the second accused, forged some documents for the purpose of cheating, committed impersonation, used those documents to illegally obtain an Indian passport and tried to exit India through Thiruvananthapuram International Airport by deceiving immigration officials present there. The Petitioner was granted default bail under Section 167(2) of the Code of Criminal Procedure, 1973 (‘Cr.P.C’) by the jurisdictional Magistrate.

Contentions of the parties

The Petitioner submitted that the conditions Nos. 4 and 5 constitute a form of continued and indefinite detention, defeating the very purpose of default bail, besides violating the fundamental rights guaranteed to the petitioner under Article 21 of the Constitution of India. It was further submitted that the Foreigners Order, 1948 (for short, the Order), 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.

It was submitted by the Respondent that the Petitioner entered India illegally from Bangladesh, obtained an Indian Passport fraudulently, and that relaxing the impugned conditions could lead to his obtaining fake Indian documents under a different identity. It was further argued that Article 19 of the Constitution does not grant the right to move freely within India to foreigners; therefore, the learned Magistrate was justified in imposing the conditions.

Observations of the Court

The primary issue for the consideration of the Court was to determine the legality of the condition imposed while granting bail to a foreign national, that he shall remain in the detention centre until the conclusion of the trial.

It was observed, “The right to be enlarged on statutory bail under Section 167(2) of Cr.P.C. 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.”

The Court said that 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). While granting bail, the Courts can curtail the freedom of the accused only to the extent required for imposing the bail conditions warranted by law. 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, defeating the very purpose of bail itself. 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 the right to life and dignity under Article 21.” the Court held.

Conclusion

Hence, the Court deleted the impugned conditions and disposed of the writ petition.

Cause Title: Apple Barua v. State of Kerala & Anr. [Neutral Citation: 2025:KER:96192]

Appearances:

Petitioner: Advocate Niharika Hema Raj

Respondents: O.M. Shalina, Deputy Solicitor General Of India, CGC Krishna S., PP Sangeetha Raj.

Click here to read/download the Judgment