Foreigner Without Valid Visa Cannot Seek Release Even After Acquittal While Foreigners Act Movement Restriction Order Stands: Karnataka High Court

The Court was hearing a habeas corpus petition filed by a Pakistani national seeking release from the Foreigners Restriction Centre and an exit pass that would enable him to leave India.

A Bench of Justice Anu Sivaraman and Justice K.S. Bharath Kumar observed: “Though the learned counsel for the petitioner submits that it was only on account of the pendency of the criminal cases that he had been detained at the detention centre, we are of the opinion that in view of the order of restriction of movement passed under the provisions of the Foreigners Act, the petitioner who is a foreign national cannot seek a direction to be set at liberty in view of the admitted position that he has no valid visa to continue his stay in India legally.”

Advocate Sirajuddin Ahmed appeared for the petitioner. Additional Solicitor General Aravind Kamath appeared for the Union authorities. Special Public Prosecutor-I B.N. Jagadeesh appeared for the State authorities.

Background

The petitioner stated that he was a Pakistani national detained at the Foreigners Restriction Centre. He sought a declaration that his detention was illegal, his release and the issuance of an exit pass permitting him to leave India.

According to the petitioner, an earlier habeas corpus petition seeking his release and deportation had already been disposed of, but he had neither been released nor deported. He submitted that his criminal appeal had been allowed, that he had been acquitted of the offences and that he had been directed to be set at liberty.

The petitioner further relied on the dismissal of the State’s appeal against his acquittal in another criminal case. He contended that no criminal proceedings remained pending against him and that he should therefore be released and sent to Pakistan.

The Union authorities opposed the petition by referring to an order restricting his movement under the Foreigners Act. They submitted that the order had been duly served upon him. It was also admitted that the petitioner had no valid visa authorising his continued stay in India.

Court’s Observations

Petitioner Relied On Conclusion Of Criminal Proceedings

The petitioner’s request for release rested on his assertion that the criminal proceedings against him had concluded in his favour and no case remained pending.

Recording his case, the Court stated: “It is therefore contended that the petitioner is liable to be set at liberty and sent back to Pakistan, since there is no criminal case now pending against him.”

The Court, however, did not accept that the conclusion of the criminal cases by itself entitled him to release from the Foreigners Restriction Centre. It examined the request in light of the separate restriction-of-movement order relied upon by the Union authorities.

Restriction Order Independently Governed Release Request

The Union authorities submitted that the petitioner’s movement had been restricted through an order passed under the Foreigners Act and that the order had been served upon him.

The judgment recorded: “The learned ASGI on the other hand, submitted that there was an order of restriction of movement passed against the petitioner under the provisions of the Foreigners Act and that the order had been duly served on the petitioner.”

In view of that order and the admitted absence of a valid visa, the Court held that the petitioner could not obtain a direction in the habeas corpus proceedings requiring his release. His contention that his placement in the centre resulted only from the earlier criminal cases did not displace the subsisting restriction order.

Restriction Order Had To Be Challenged Separately

The Court did not rule on whether the restriction-of-movement order had been validly made. It held that the petitioner was required to challenge that order through appropriate proceedings.

The Bench observed: “Since an order of restriction of movement is passed against the petitioner, rightly or wrongly, we are of the opinion that he has to challenge the same in appropriate proceedings. This writ petition is therefore disposed of with liberty to the petitioner to challenge the order of restriction of movement passed under Section 3(2)(e) of the Foreigners Act, 1946.”

The liberty granted by the Court thus preserved the petitioner’s right to question the legality of the order while declining his immediate request for release in the present proceedings.

Conclusion

The High Court disposed of the habeas corpus petition without directing the petitioner’s release or the issuance of an exit pass. It granted him liberty to challenge the restriction-of-movement order passed under Section 3(2)(e) of the Foreigners Act, 1946, in appropriate proceedings.

All pending interlocutory applications were also disposed of.

Cause Title: Mohammed Fahad HI alias Mohammed Koya v. The State of Karnataka and Others

Appearances

Petitioner: Sirajuddin Ahmed, Advocate

Respondents: Aravind Kamath, Additional Solicitor General, assisted by S.R. Doddawad, Central Government Counsel; B.N. Jagadeesh, Special Public Prosecutor-I, assisted by Deepthi Alva, High Court Government Pleader

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