IMPORTANT POINT
Bail application by a foreigner – While releasing a foreigner on bail, Court should direct investigating agency or State, to immediately inform concerned Registration Officer appointed under Rule 3 of Registration of Foreigners Rules, 1992 about grant of bail so that Registration Officer can bring fact of grant of bail to notice of concerned Civil Authority.

ORDER :

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. By judgment and order dated 08th 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.

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.

(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 p