Frank Vitus v. Narcotics Control Bureau and Ors.
Order
Abhay S. Oka, J.
FACTUAL ASPECTS
1. By judgment and order dated 08 th July, 2024, two main issues
concerning bail conditions were decided. Now, the issue that remains
to be answered is whether it is necessary to implead a Foreign
Registration Officer appointed under Rule 3 of the Registration of
Foreigners Rules, 1992 (for short ‘the Rules’) in the bail application
filed by a foreigner within the meaning of the Foreigners Act, 1946
(for short ‘the Act’). Under Section 2(a) of the Act, a foreigner means
a person who is not a citizen of India.
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2. 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.
3. In the exercise of the power conferred under Section 3 of the Act,
the Foreigners Order, 1948 (for short, ‘the Order’) has been issued.
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. Clause 5 of the
Order reads thus:
“5. Power to grant permission to depart from India .
(1) No foreigner shall leave India:-
(a) otherwise than at such port or other recognised
place of departure on the borders of India as
a Registration Officer having jurisdiction at that
port or place may appoint in this behalf, either
for foreigners generally or for any specified class
or description of foreigners; or
(b) without the leave of the civil authority having
jurisdiction at such port or place.
(2) Leave shall be refused if the civil authority is
satisfied that
(a) the foreigner has failed to comply with the
formalities of departure prescribed under the
Registration of Foreigners Rules, 1939;
(b) the foreigners presence is required in India
to answer a criminal charge;
(c) the foreigners departure will prejudice the
relations of the Central Government with a
foreign power;
(d) the departure of the foreigner has been prohibited
under an order issued by a competent authority.
Frank Vitus v. Narcotics Control Bureau and Ors.
(3) (a) Notwithstanding anything contained in the above
sub-paragraphs, a civil authority may prohibit
the departure of a foreigner where it is satisfied
that such departure would not be conducive to
the public interest.
(b) Whenever a civil authority issues an order under
clause (a), it shall report the matter forthwith to
the Central Government which may cancel or
modify the order in such manner as it thinks fit.”
(emphasis added)
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.
4. Shri Vinay Navare, learned senior counsel appointed as Amicus
Curiae, has 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. Shri. Vikramjeet Banerjee, learned Additional Solicitor
General of India has also submitted that it is always advisable to
give notice of the bail application to the authorities under the Act
and the Rules.
5. 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. The Rules do not impose any
such restriction on departure from India. However, as noted earlier,
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
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restrictions can be imposed on a foreigner while he is in India. The
said power is wholly independent of the power to grant bail. As of
today, there is no order passed by the Central Government for giving
effect to clause (g) of Section 3(2) of the Act. In any event, even if
such an order is issued, the power to arrest or detain a foreigner
under the Act is independent of the power of the criminal court to
grant bail. Notwithstanding the bail granted by a criminal court, the
power to arrest and detain a foreigner can be exercised, provided
the Central Government makes an order in terms of clause (g) of
Section 3(2) of the Act.
6. 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.
7. All that can be done is that while releasing a foreigner on bail, the
Court should direct the investigating agency or the State, as the case
may be, 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.
8. In addition to what we held by judgment and order dated 08th July, 2024,
we issue the following directions:
(i) 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; and
Frank Vitus v. Narcotics Control Bureau and Ors.
(ii) 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.
9. The Criminal Appeals shall be treated as disposed of in terms of the
judgment and order dated 08 th July, 2024 and this order.
10. We appreciate the valuable assistance rendered by Shri Vinay
Navare, learned senior counsel appointed as Amicus Curiae and Shri
Vikramjeet Banerjee, learned Additional Solicitor General of India.
Result of the case: Appeals disposed of.
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