Order Granting Bail To 'Foreigner' Under Foreigners Act Has To Be Immediately Communicated To Registration Officer: Supreme Court
Justice Abhay S. Oka, Justice Ujjal Bhuyan, Supreme Court
The Supreme Court directed that while granting bail to a foreigner within the meaning of the Foreigners Act, 1946, the concerned court shall issue direction to the State or prosecuting agency to immediately communicate the order granting bail to the concerned Registration Officer who, in turn, shall communicate the order to all concerned authorities including the Civil Authorities.
The sole issue for consideration before the Apex Court was whether it is necessary to implead a Foreign Registration Officer appointed under Rule 3 of the Registration of Foreigners Rules, 1992 in the bail application filed by a foreigner within the meaning of the Foreigners Act, 1946.
The Division Bench comprising Justice Abhay S. Oka & Justice Ujjal Bhuyan said, “Therefore, we do not see any propriety in issuing a direction that either the Civil Authority or the Registration Officer should be made a party to a bail application filed by a foreigner or a notice of the bail application be issued to the said authorities. The reason is that the authorities under the Act and the Order have no locus to oppose bail application filed by a foreigner unless bail is sought where the allegation is of the offence punishable under Section 14 of the Act. The impleadment of the Civil Authority or Registration Officer in all bail applications filed by foreigners may result in unnecessary delay in deciding the bail applications.”
The Bench explained that under Section 2(a) of the Act, a foreigner means a person who is not a citizen of India. Under Section 3 of the Act, there is a power vested in the Central Government to issue an order making provisions either generally or concerning any particular foreigner or class of foreigners of prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence. Under clause (g) of Section 3(2), a power has been conferred on the Central Government to issue an order directing that a foreigner shall be arrested or detained or confined.
Referring to the Order, it was also made clear that Clause 2(2) of the Order provides for appointing a Civil Authority by the Central Government. Clause 5 of the Order deals with the power to grant permission to depart from India. Under sub-clause (2) of clause 5, leave must be refused by the Civil Authority if it is satisfied that the foreigner’s presence is required in India to answer a criminal charge.
The Amicus Curiae Vinay Navare suggested that considering the powers vested in Civil Authorities under the Order, it will be appropriate to direct that while considering the prayer for granting bail in case of a foreign national who is accused of serious offences, a notice should be issued to the Civil Authority so that the said authority can be heard on the prayer for grant of bail and on bail conditions, in the event the court is inclined to grant bail. Additional Solicitor General of India Vikramjeet Banerjee also submitted that it is always advisable to give notice of the bail application to the authorities under the Act and the Rules.
It was also clarified that Under clause (b) of Section 3(2) of the Act, there is a power vested in the Central Government to issue an order generally or with respect to any particular foreigner or class of foreigners that they shall not depart from India or shall depart subject to observance of such conditions on departure as may be prescribed.
According to clause 5(1)(b) of the Order, no foreigner shall leave India without the leave of the Civil Authority having jurisdiction. When a foreigner’s presence is required in India to answer a criminal charge, permission to leave India must be refused. Under the Order, the Civil Authority can impose restrictions on the movements of a foreigner.
“Therefore, once a foreigner is released on bail, he cannot leave India without the permission of the Civil Authority, as provided in clause 5 of the Order. Under clause 11 and other clauses of the Order, various restrictions can be imposed on a foreigner while he is in India. The said power is wholly independent of the power to grant bail”,it added while noticing that currently no order passed by the Central Government for giving effect to clause (g) of Section 3(2) of the Act.
The Bench also made it clear that while releasing a foreigner on bail, the Court should direct the investigating agency or the State, to immediately inform the concerned Registration Officer appointed under Rule 3 of the Rules about the grant of bail so that the Registration Officer can bring the fact of the grant of bail to the notice of concerned Civil Authority.
The Court thus disposed of the Petition by directing, “While granting bail to a foreigner within the meaning of the Act, the concerned court shall issue direction to the State or prosecuting agency, as the case may be, to immediately communicate the order granting bail to the concerned Registration Officer appointed under Rule 3 of the Rules who, in turn, shall communicate the order to all concerned authorities including the Civil Authorities. If such information is furnished, it will enable the authorities under the Act, the Rules and the Order to take appropriate steps in accordance with the law.”
“A copy of this order shall be forwarded to Registrar Generals of all the High Courts, who in turn will forward the copies of the order to all the criminal courts in the respective States”, it concluded.
Cause Title: Frank Vitus v. Narcotics Control Bureau And Ors. (Neutral Citation: 2025 INSC 30)