Granting Bail Does Not Shield Foreign Nationals from Executive Action on Visa Violations: Delhi High Court

Delhi High Court granted bail to a foreign national charged under Section 14 of the Foreigners Act, 1946, and Section 174-A of the Indian Penal Code, 1860 (IPC). Justice Anup Jairam Bhambhani highlighted the distinction between judicial custody for criminal prosecution and executive detention for visa violations, reiterating that bail only addresses release from judicial custody and does not preclude the Central Government from taking action under immigration laws.

The petitioner, accused of overstaying her visa and lacking valid travel documents, was released on bail under strict conditions, including restrictions on travel, surrendering her passport, and compliance with trial proceedings.

The Court clarified that while granting bail ensures a foreign national’s release from judicial custody, it does not interfere with the Central Government’s authority under the Foreigners Act, 1946, to regulate their presence or impose detention.

"Bail proceedings relate only to the release of a person from ‘judicial custody’ and cannot be employed to seek release from ‘executive detention’," the Court stated, underscoring that judicial custody for past violations and executive detention for future regulation are distinct.

The petitioner, a national of Uzbekistan, was charged in FIR No. 148/2022 under Sections 3, 4, and 5 of the Immoral Traffic (Prevention) Act, 1956, as well as under Sections 14 of the Foreigners Act and 174-A of the IPC, for allegedly overstaying her visa after entering India. She claimed to have been duped by individuals who brought her to India through Nepal under false pretenses and took her passport, promising her a work visa.

The petitioner was arrested in July 2023 and had remained in custody since then. The prosecution alleged that the petitioner was part of a larger human trafficking and prostitution racket, but charges against her were ultimately framed only under Section 14 of the Foreigners Act (visa violations) and Section 174-A IPC (non-appearance in court).

Despite the reduced charges, the petitioner faced continued incarceration due to her visa status. She sought bail, arguing that the offenses she was charged with carried a maximum sentence of five years, and that she had already spent nearly 1.5 years in judicial custody.

The Court concluded that the petitioner had served substantial time in judicial custody, the investigation was complete, and no other material charges were found against her beyond visa violations and absconding. It stated:

"Considering that charges have been framed against the petitioner only under section 14 of the Foreigners Act and section 174-A of the IPC... releasing the petitioner from judicial custody on bail, by imposing requisite conditions, does not present much of a challenge."

The Court also noted that the petitioner did not possess a passport and therefore posed no risk of absconding, as her movements could easily be monitored.

Justice Bhambhani made a critical distinction between judicial custody and executive detention, stating that while the judiciary determines bail, regulating the petitioner’s presence in India or enforcing visa violations is a matter for the executive branch under Section 3 of the Foreigners Act.

"Whether the passport or visa of a foreign national is valid or not, is not a matter within the scope of adjudication in a bail petition," the Court emphasized.

The Court also addressed the petitioner’s concern that she would be sent to a detention center after release on bail, clarifying that:

"It would be speculative to conclude what exact measure the Central Government would adopt... 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 or imposing other restrictions on movements within India."

The Foreigners Regional Registration Office (FRRO) argued that the petitioner, who had overstayed her visa by seven years and re-entered India illegally, was blacklisted and violated Section 14-A of the Foreigners Act, which entails stricter penalties. The FRRO submitted that granting a visa to the petitioner would violate the Foreigners Act. The Court, however, held that:

"The scope of a bail petition is only to consider whether or not, in a given case, an under-trial... is to be released from the custody of the court... It is not the remit of this court to verify, or endorse, or direct grant of any visa status to a foreign national."

While the Court allowed the FRRO to take independent action under the Foreigners Act, it made clear that such actions must not interfere with the conditions imposed for bail.

The High Court granted bail to the petitioner, imposing the following conditions:

The petitioner must furnish a personal bond of ₹50,000 with two local sureties, one of whom must be a family member.
She must surrender her passport (if not already done) and remain confined to the Delhi NCR unless granted permission by the trial court.
She must provide an active cellphone number and promptly inform authorities of any change in residence.
She must refrain from tampering with evidence or influencing witnesses.
The Court emphasized that the Central Government retains the authority to act on visa violations or immigration matters but cannot override the bail order without the trial court’s approval. It stated:

"Without the prior permission of the learned trial court, no action shall be taken by the Central Government against the petitioner that detracts from the direction... that the petitioner shall not leave the National Capital Territory of Delhi while on regular bail."

Date of Decision: January 21, 2025