Trial court can't send foreigner to detention while granting bail: Delhi HC

A trial court cannot send a foreign citizen to a detention centre at the time of granting him bail as these facilities are not meant for judicial custody but for keeping foreign nationals on the basis of an executive order in terms of the Foreigners Act, the Delhi High Court has said.

Justice Anish Dayal's order came on petitions by a Nigerian man who was sent to a detention centre by a magisterial court even while being granted bail in a criminal case filed under the Delhi Excise Act and the Foreigners Act in April 2021 considering that his visa had expired.

Subsequently, a sessions court directed his release from the detention centre subject to certain conditions but the petitioner contended before the high court that he was yet to be released.

The court said once enlarged on bail, the petitioner cannot be detained without following the due process of law when he is yet to be proved guilty.

"The petitioner once being enlarged on bail cannot be detained without due process of law. The fact that he is facing trial for offences under the Excise Act and the Foreigners Act cannot be held against him, considering he still is to be proved guilty post trial. Right now, is the issue of his freedom," said the court in a recent order.

"A Court or Magistrates or a Sessions Court cannot as part of enlarging foreign national on bail can also direct the said person to be sent to a detention centre. The Court is not competent to pass such a direction when granting bail as has been conclusively held in various decisions. Detention centres are not for judicial custody but a place where a foreign national is detained on an executive order and is the prerogative of the competent authority under the Foreigners Act," it said.

The HC was informed that following the orders passed by the lower courts, the authorities concerned declined him visa multiple times and the Foreigners Regional Registration Officer (FRRO) directed him not to move out of the detention centre.

The court noted that as per the legal framework, the Centre has the option to regulate the presence of an foreigner who is an undertrial in India and "these options are aside from the simpliciter option of detention".

The court noted the petitioner has already been in de facto custody for two years, when the maximum punishment under the Excise Act may extend to three years and under the Foreigners Act for five years, and directed his release from the detention centre on a personal bond and surety bond of Rs 1 lakh each.

Considering that the petitioner has a valid passport, it also directed the central government to consider his application for visa and /or representation for an appropriate order within a period of 8 weeks, with due compliance of principles of natural justice.

The court said granting such persons a special permit/visa/ travel document would not legitimise the earlier offence of having overstayed in violation of the provisions of the Foreigners Act but would ensure they are not confined in a detention centre at state expense.

"Restrictions could be made for restricting the possibility of travelling out of India without permission. This would ensure a judicious balance between recognizing liberty, and a human right, and ensuring the presence of the foreign nationals for the purpose of trial and being subject to restrictions/regulations/condition," it said.

The court directed the petitioner to furnish a permanent residence address, surrender his passport and report to the local police station once a week.

It also asked him to provide the details and mobile number of his wife, an Indian national, to the trial court concerned.