Delhi High Court: A bail application was filed seeking grant of regular bail in FIR dated 22-07-2022 registered under Sections 366-B, 370, 419, 420, 465, 466, 467, 468, 471, 474, 109, 120-B, 34 and 174-A of Penal Code, 1860 (‘IPC’) and under Section 14 of the Foreigners Act, 1946 Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 (‘ITP Act’) but as the proceedings acquired added complexity as regards the jurisdiction of the court seeking to direct the State authorities to also grant an appropriate visa to the petitioner. Jairam Bhambhani, J., granted bail to the applicant and held that the scope of a bail petition is only to consider whether or not, in a given case, an under-trial or a convict seeking suspension of sentence is to be released from the custody of the court, namely ‘judicial custody’ to the custody of a surety and not to verify, or endorse, or direct grant any visa status to a foreign national, who has sought the relief of enlargement on bail.
The petitioner initially entered India in 2012 on a valid visa but overstayed for seven years beyond the permissible period. Consequently, she was issued an exit permit and blacklisted, barring her from re-entering India. In egregious violation of these directives, she re-entered India without any visa or valid travel documents. This second unauthorized entry led to allegations of involvement in illicit activities, raising concerns about national security. The petitioner was subsequently detained and prosecuted for overstaying and re-entering India unlawfully. She has been in judicial custody for approximately one and a half years as an undertrial.
The petitioner filed this bail application seeking release from judicial custody contending that she had already been detained for a significant period and that further custody was unwarranted. However, the Foreigners Regional Registration Office (FRRO) opposed the petition, citing the petitioner’s repeated and severe violations of visa and immigration laws. The FRRO also emphasized that the petitioner’s release could lead to her placement in executive detention, as mandated by the Central Government under the Foreigners Act.
The petitioner argued for bail on the grounds that she had already undergone prolonged judicial custody, that the investigation was complete, and her continued detention was unnecessary. She also expressed apprehensions that even if released on bail, she would immediately be detained at a detention/restriction center.
The FRRO, representing the Central Government, contended that immigration control is a sovereign function under Section 3 of the Foreigners Act. It emphasized that the petitioner’s conduct demonstrated severe and repeated violations, including overstaying her visa for seven years and re-entering India without any visa. The FRRO maintained that while the court could decide the matter of bail, it lacked jurisdiction to interfere with executive decisions related to the detention of foreign nationals under the Foreigners Act.
The Court identified two distinct aspects of the case, Firstly the petitioner’s judicial custody as an undertrial facing charges under Section 14 of the Foreigners Act and Section 174-A of the IPC, and Secondly, the petitioner’s potential executive detention as a foreign national without a valid visa.
Regarding judicial custody, the Court observed that the petitioner’s prolonged detention (approximately 1.5 years) and the conclusion of the investigation justified her release on bail. However, the Court drew a clear distinction between judicial custody and executive detention. While judicial custody pertains to the petitioner’s prosecution for past violations, executive detention is a preventive measure to regulate her future presence in India.
The Court underscored that decisions concerning the issuance of visas, deportation, or detention of foreign nationals are sovereign functions vested in the Central Government under Section 3 of the Foreigners Act. It reiterated that these matters fall outside the purview of a bail petition. Consequently, while the Court could grant bail, it could not adjudicate on the petitioner’s future detention at a restriction center or her immigration status.
The Court remarked that “In the present case, the petitioner also contends that there is no doubt in her mind that the moment she is released from jail, she would be escorted straight to a detention centre/restriction centre, that is not an apprehension that this court can accept so readily, since section 3 of the Foreigners Act gives to the Central Government options to adopt different measures for different persons, such as requiring the person to reside at a particular place (not necessarily a detention centre /restriction centre) or imposing other restrictions on movements within India. No matter the certitude expressed by the petitioner, it would be speculative to conclude as to what exact measure the Central Government would adopt in relation to the petitioner.”
Addressing the petitioner’s apprehension that she would be detained immediately upon release, the Court clarified that such executive actions are distinct from judicial proceedings. The Court emphasized that any challenge to executive detention must be pursued through appropriate legal remedies, not through a bail application.
The Court granted bail to the petitioner for her judicial custody, imposing requisite conditions to ensure compliance with the legal process. However, the Court refrained from issuing any directions to the Central Government or the FRRO concerning the petitioner’s immigration status or executive detention. It reiterated that while judicial custody deals with past violations, executive detention serves as a forward-looking regulatory mechanism. The petitioner was advised to seek redress for any grievances related to executive actions through the appropriate legal forums.
[Aizaz Kilicheva v. State NCT of Delhi, BAIL APPLN. 1872/2024, decided on 21-01-2025]
Advocates who appeared in this case:
Mr. Prashant Mendiratta, Ms. Somyashree, Mr. Samar Pratap Singh and Ms. Neha Jain, Advocates for petitioner
Mr. Tarang Srivastava, APP for the State with Insp. Manoj Dahiya, AHTU/Crime Branch. Mr. Amit Tiwari, CGSC with Mr. Rahul Bhaskar, Mr. Chetanya Puri, Advocates for FRRO with Insp. Shashank Tirpathi, Legal Cell, FRRO, Delhi
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