Movement of Foreign National can be restricted while granting Bail

“The imposition of the condition of putting the Petitioner into detention centre is with the object that he/she should not abscond or flee away from justice and leave the country on the pretext of enlarging on bail.”

Background

The Petitioner, a foreign national and the citizen of Kyrgyzstan, had come to Bidar District (Karnataka State) on a Tourist Visa and stayed in Bilal Masjid at Bidar. It was alleged against the Petitioner that he had come to India on Tourist Visa but had violated the conditions of Visa and thus, committed the offence of violation of provisions of the FA Act. 

This led in the registration of a case against the Petitioner for the offences punishable under Sections 14(a), 14(b) 14(c) of FA Act, 1946 and the Petitioner was arrested and produced before the Trial Court, and he was remanded to custody.

After that; the Petitioner had filed bail petition under Section 437 of Cr.P.C. before the Trial Court, which Court by its order dated 16.06.2020 granted bail by allowing the bail petition imposing as many as four conditions.  However, condition No.2 imposed therein provided that the Petitioner shall not leave the Detention Center without the prior permission of the Trial Court.

Being aggrieved by said Condition at Sl.No.2, the Petitioner appealed to the Court of the Addl. District & Sessions Judge, Bidar (Sessions Judge’ for short) for modification of Condition No.2. The learned Sessions Judge dismissed the Petition filed under Section 439(1)(b) of Cr.P.C. refusing to modify Condition No.2 imposed by the Trial Court.

Being aggrieved a Petition was filed before Karnataka High Court under Sections 14(a), 14(b) & 14(c) of Foreigners Act, 1946 (FA Act) r/w Section 439(1)(b) of Code of Criminal Procedure, 1973 for setting aside/modification of the Condition No.2 imposed by the Trial Court, while granting bail to the Petitioner.

Contention of Petitioner:

  1. Condition No.2 imposed by the Trial Court is a harsh one which curtails the life of and liberty of the Petitioner as envisaged in Article 21 of the Constitution of India.
  2. Imposition of Condition No.2 ordering to keep the Petitioner in the Detention Center is virtually amounting to negating the benefit of bail granted to the Petitioner.
  3. Petitioner is ready to face the trial and abide by all the conditions imposed by the Trial Court. Hence, he prayed for allowing the Petition by modifying/relaxing the Condition No.2 imposed by the Trial Court.

Contention of State:

  1. Trial Court has imposed Condition No.2 stated supra as per the Guidelines issued by Karnataka High Court in Babul Khan & Ors vs State of Karnataka & another (Crl.P.No.6578/2019, decided on: 19.05.2020). Therefore there is no error committed by the learned Magistrate in imposition condition impugned herein.
  2. Even though the Court has granted bail and enlarged the petitioners on bail in that case, the Petitioner cannot be given free movement as per his whims and fancies till the disposal of case or till the Government decides whether to deport or not.

The Court while dismissing the Petition observed:

  1. Trial Court’s decision of imposing of such condition is preceded by the mandate of this Court in Babul’s Khan case (supra). 
  2. As per Babul Khan’s case (supra) keeping the foreign nationals or any suspected foreign nationals for having violated the provisions of the FA Act in the Detention Center is perfectly justifiable.
  3. Detention Centers are not to be construed as putting them into a Jail/Prison. The object behind such establishment of Detention Center and placing foreign nationals against whom cases have been registered under the FA Act, 1946 is to restrict their movements across India and should not travel according to their whims and fancies and remain untraceable or absconded or flee away from justice.
  4. Condition placing the Petitioner in Detention Center cannot be said to be harsh or even illegal and unjustifiable, and it is riot violative of Article 21 of the Constitution of India. 
  5. The State has every power to make such restrictions as vested under the law keeping the sovereignty of the country.
  6. Sovereignty of the country is not only to be preached, but it is also an obligation of practice by every authority.
  7. Putting a foreign nationals, who violates the law of the country after obtaining bail, in a detention centre is different from putting them in jail. 

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