The court ruled that it lacks jurisdiction to direct visa issuance in bail proceedings, emphasizing the distinction between judicial custody and executive detention under the Foreigners Act.

JUDGMENT :

ANUP JAIRAM BHAMBHANI, J.

1.While considering a bail petition filed by a foreign national, is it permissible for this court to also direct the State authorities to grant to such person a visa to enable the foreign national to continue to reside in the country and participate in pending criminal proceedings? This is the question that has presented itself in this matter.

2. Though the present petition was filed only for grant of regular bail in case FIR No.148/2022 dated 22.07.2022 registered under sections 3/4/5 of the Immoral Traffic (Prevention) Act, 1956 (‘ITP Act’) at P.S. Crime Branch, Delhi (‘subject FIR’), the proceedings acquired added complexity as regards the jurisdiction of this court to direct the State authorities to also grant an appropriate visa to the petitioner.

3. Consequent upon completion of investigation in the case, offences under sections 366-B/370/419/420/465/466/467/468/471/474/109/ 120-B/34/174-A of the Indian Penal Code, 1860 (‘IPC’) and under section 14 of the Foreigners Act, 1946 (‘Foreigners Act’) were also added by way of the charge-sheets and supplementary charge-sheets filed by the prosecution.

4. Pertinently however, on 02.02.2024 the Investigating Officer (‘I.O.’) made a statement before the learned trial court, stating that as per the investigation conducted and evidence gathered, offences only under section 14 of the Foreigners Act and 174-A of the IPC are attracted against the petitioner.

5. Pursuant thereto, vide order dated 02.02.2024 charges have been framed by the learned trial court against the petitioner under section14 of the Foreigners Act and section 174-A of the IPC.

PETITIONER’S SUBMISSIONS

6. It is the petitioner’s case that she was entrapped by some persons and called to India through Nepal in December 2019; that her passport was taken away by some individuals posing as Indian officials outside the Indian Embassy in Nepal on the assurance that she will be granted a 05 year work-visa/permit upon her arrival in India; and that the petitioner also paid Rs.5 lacs to the said individuals for obtaining such visa.

7. Mr. Prashant Mendiratta, learned counsel appearing for the petitioner has made the following principal submissions in support of the bail plea:

7.1. That the petitioner has been falsely implicated in case FIR No.148/2022, in which she has been in judicial custody ever since the date of her arrest i.e., 11/12.07.2023;

7.2. That the petitioner has been charged only with offences under section 14 of the Foreigners Act and section 174-A IPC; and the statement of the I.O. recorded before the learned trial court shows that no other incriminating material has been found against the petitioner. Pertinently, the offences charged attract a maximum punishment of 05 years of imprisonment along with fine; against which the petitioner has already suffered judicial custody of about 1½ years as of date;

7.3. That the only reason why the petitioner has been kept behind bars is that she allegedly entered India illegally and/or overstayed after expiration of her visa; and those allegations are a matter of trial, which the petitioner is ready and willing to face;

7.4. That since the petitioner’s passport already stands deposited with the learned trial court, the petitioner cannot leave the country; and there is therefore no likelihood of the petitioner fleeing from justice;

7.5. That, most importantly, if this court is inclined to grant to the petitioner regular bail, she cannot be detained at a detention centre/restriction centre only for the reason that she has also been charged under section 14 of the Foreigners Act;

7.6. That the petitioner undertakes to be bound by any condition that the court may impose while granting bail; however she ought not to be detained at a detention centre/restriction centre, since that would defeat the very purpose of granting to the petitioner liberty by admitting her to bail in the subject FIR; 

7.7. That in order to resolve the anomaly as to her visa status in