Guest Post: Bail in Letters but not in Spirit — Karnataka High Court on Persons Accused under Foreigners Act, 1946

(This is a guest post by Mr. Basawa Prasad Kunale, Advocate)

The concept of bail emerges from the conflict between the police power to restrict the liberty of a person who is alleged to have committed a crime and the presumption of innocence in his favour. The State, in its anxiety to protect its subjects from the onslaught of criminals, has invested the police with powers of arrest and approaching the criminal courts with a prayer for keeping the accused in custody, for the purpose of keeping the accused present at the time of trial and to prevent the accused person from tampering with the evidence. However, it would be not only improper but also unjust to keep an accused person under custody of the State with the object of punishing him before the conclusion of the trial, this in fact defeats the entire purpose of the trial.

Therefore, while answering the question whether to or not to grant bail to a person, it is for the judges to balance the State’s power to restrict an individual’s liberty with the constitutional protection of personal liberty.In Indian bail jurisprudence it has been established that bail is a rule and jail is an exception. This has been recognised as a rule for not only against alleged heinous offences committed on other person but also in alleged serious offences against the State. Section 439 of CrPC along with several other provisions under special enactments entrusts power upon the High Court or Sessions Courts to grant bail, in order to recognise liberty of an individual from States authority. The principal rule to guide release on bail is to secure the presence of the applicant who seeks to be liberated, along with the principles established by various judicial precedents and guidelines, as summarised below, which are to be taken into consideration while exercising this power: 

1. The nature and gravity of the circumstances in which the offence is committed;
2. The position and the status of the accused with reference to the victim and the witnesses;
3. The likelihood of the accused fleeing from justice;
4. Possibility of tampering with evidence; and
5. Chances of repeating the offence.

In its recent decision, the Hon’ble Karnataka High Court, while deciding on the issue of grant of bail under Section 439 of CrPC, restricts the liberty of the accused, by going beyond the powers conferred the said provision. In the case the Petitioners approached the Court under Section 439 of CrPC, for being arrayed as accused under Section 14A and 14B of the Foreigners Act, Section 25 of the Indian Arms Act, 1959 and Section 34 of the Aadhaar Act, 2016.While deciding the petition, the Hon’ble Court in Para 51 of the judgment acknowledged that there exists no specific bar to grant bail under Section 439 of CrPC for persons accused under the special enactments governing foreigners, especially the Foreigners Act, 1949, unlike under section 37 of the NDPS Act and section 43D (5)of the UAPA, which permits bail only in limited circumstances. However, the Court was of the view that the persons accused under Foreigners Act cannot wander around the country freely, as if they are citizens, once the bail has been authorised by the Court as such an authorisation cannot be considered as license to move around the country. Therefore the Court being of the opinion that there were no specific guidelines in this context as to how accused persons under Foreigners Act, 1949 should be treated during the course of investigation, inquiry, trial, and after acquittal or conviction by the Courts, the Hon’ble Court laid down exhaustive 16 point guidelines [Para 112], concerning the manner of enquiry under the Foreigners Act, conditions of detention centres and of the inmates along with many others, for the Courts and the competent authorities to follow while dealing with persons facing proceedings under the Foreigners Act, 1946.

However, for the purpose of this article, we will look at guideline no. 4 laid down by the Court, which reads as follows:

(4) If for any reason the Court grants bail including anticipatory bail, in any criminal case where the offender is a foreign national, and the offence are under the Foreigners Act and/or also under any other Laws for the time being in force, and their Visa is cancelled or lapsed, or they have no Passport, or they are illegal migrants, then Courts shall specifically order to keep them in detention centres, unless the competent authority has passed any order under section 3(2) (a) to (f) of the Foreigners Act, 1946, or till further orders of the Court or till they are deported to their mother country.

Before going into the legality of this guideline, it is important to examine the relevant statutes governing the detention of the Foreigners. Section 3 of the Foreigners Act, 1946, empowers the Central Government to make Orders for the purpose of prohibition, regulation, or restriction of the entry of foreigners, into India, or their departure therefrom or their presence or continued presence therein in the manner provided under Section 3(2)of the said Act, including arrests and detention or restriction of movements.

In Para 66 of the judgment, the Court records that this power came to be delegated to State governments and Union Administrations under Article 253 of the Constitution through a notification issued in the year 1958, wherein now these authorities were entrusted with the power to restrict the movements, arrest and detention or confinement of Foreigners.

However, in order to exercise the power under section 3 of the Act, it is important to determine as to who is a foreigner. This determination of whether the person is a foreigner has to be done, in consonance with definition a foreigner under section 2 (a) of the Foreigners Act, 1946, which states that a person who is not a citizen of India is a foreigner and further in order to determine whether a person is a foreigner, the Tribunals are constituted for this purpose, under The Foreigners (Tribunal) Order, 1964. 

The said Order of 1964(except procedures for the State of Assam are different), empowers the Central Government or State Government or the Union Territory administration or the District Collector or the District Magistrate, to refer the question as to whether a person is not a foreigner within the meaning of Foreigners Act, 1946 to a Tribunal. The said Tribunal shall have all the powers of Civil Court while trying the suit under the Code of Civil Procedure and while exercising such power it shall give enough opportunity to the person whose Indian citizenship is in doubt before arriving at an opinion, by way of issuing notice, providing opportunities to produce evidence and hearing arguments, and then submitting its opinion to the officer or authority in the order of reference.This opinion of the Tribunal is of paramount importance, since this opinion, by way of determining if a person is foreigner, also determines the citizenship rights of a person. It is based on this opinion of the Tribunal that a person is foreigner that the competent authorities under Section 3 of the Act will take appropriate actions as laid down in Section 3(2) of the Act, including arrests and detention or restriction of movements of the said person.

This being the law of the land, let us come back to guideline no. 4 in question.We see that the Court presumes that every person who is alleged to have committed an offence under any special enactments governing foreigners or the under the Foreigners Act, is a foreigner, and by doing so, it denies such persons of entire procedural safeguards provided in the Foreigners (Tribunal) Order, 1964.

Right to approach under Section 439 are infructuous: As mentioned earlier the power to grant bail is with sole objective of recognising the liberty of persons from State’s authority over restricting it, however the said guideline makes this power entrusted upon the Courts under section 439 of CrPC infructuous, as in lieu of this guideline, if a person has been granted bail, he continuous to be detained in the detention centres established under Section 3(2) of the Foreigners Act, making it pointless for a person to approach the Courts for bail. Furthermore, it is important to note that there is no enactment which empowers Courts to keep a person in continuous detention even after bail has been granted, let alone Section 439 of CrPC.

Violation of “Procedure Established by Law”-Article 21 of the Constitution guarantees every person, irrespective of their nationality, right to life and liberty, except for procedure established by law. For the purpose of this article, the procedure established by law to detain persons under the Foreigners Act, is entirely authorised upon the Central Government, State Governments or to the Union Administrations. It is important to note that not even a quasi judicial adjudicating body, i.e. the Tribunal constituted under the Foreigners (Tribunal) Order, 1964, has the authority to detain a person if in its opinion such person is a foreigner. Such being the situation, the guideline under scrutiny, goes beyond the procedure established by law and continuous to detain the persons who has been granted bail and denies liberty to him without authority of law, thereby violating Article 21 of the Constitution.

The National Registry of Citizens, under the under the Citizenship Registration of Citizens Rules, 2003 has been severely criticised for not providing any criteria or details that would be necessary for entry into the said registry of citizens and instead leaves it to the whims and fancy of the local Taluk level officers to make such decisions.The appeal process within the rules, in case of exclusion from the registry, being mere procedural provision, does not provide any safeguards to the persons preferring appeal in the form of providing sufficient time period to prefer such appeal as well issuance of notice or issuance of such order of exclusion from the list. Further the said rules are also silent with regard to the status of persons who would be excluded from the registry, giving a free hand for the police authorities to register baseless FIR’s under the Foreigners Act against such persons. The victims in this entire process will be persons who are unable to make any kind of socially and economical influence, which would play an important role for entries in the registry of citizens and to escape the possible abuse of powers under the police authorities. Adding to all this, the guideline no. 4 under scrutiny will only be one more hurdle for this disadvantaged group, whereby now bail will only be in letters but never in spirit.