1. Petitioners are two among the accused (A3 and A6) in Crime No.1404/2013 of Aluva East Police Station registered for offences punishable under sections 13 and 14 of the Foreigners Act read with section 3 of the Passport (Entry to India) Act, 1920. They have filed the above application seeking their enlargement on bail under section 439 of the Code of Criminal Procedure, for short the Code.

2. Getting reliable information that some Srilankan citizens are staying without permission in a lodge, namely, Ambili Tourist Home near private bus stand, Alwaye, a police party headed by Sub Inspector of Police, Alwaye Police Station went over to that lodge. A group of Srilankan citizens including petitioners, ten in number, were found in that lodge without having valid passports or travel documents. Their interrogation disclosing that one Ramesh had brought them from Tamilnadu promising to send them to Australia all of them were arrested. Later on production before the magistrate they were remanded to judicial custody. Petitioners applied for bail and it was turned down by the magistrate vide Annexure A8 order. They have therefore approached this court seeking bail.

3. I heard Sri. V.S. Salim, learned counsel for petitioners and also Sri. T. Asaf Ali, State Public Prosecutor.

4. Learned counsel for petitioners submitted that some of the accused in the crime who were arrested with them had already been enlarged on bail by the magistrate. Petitioners are refugees and they are not liable to be proceeded under the Foreigners Act and also the Passport Act since they were forced to flee from their mother country to save their lives and also fear of prosecution when a civil war was going on in that country, is the submission of counsel. Exploiting their situation while they were in a refugee camp in Tamilnadu one Ramesh approached them promising to arrange for their trafficking to Australia. They were made to believe that they would get employment and also a secured peaceful life in Australia. After they reached Alwaye and while put up in the hotel police arrested them and ever since they are continuing in custody. Proceedings against petitioners under the Foreigners Act and the Passport Act are an abuse of process of law and violation of human rights when they have the status of refugees is the submission of counsel. Though there is no law as such governing the refugees in the country rights conferred on refugees under the United Nations International convention and its Protocol have to be recognised and respected, submits the counsel. Judicial pronouncements made by apex court in Vishaka and Others v. State of Rajasthan and others (1997) 6 SCC 241) and Madras High Court in A.C. Mohd. Siddique v. Government of India and others (1998 (47) DRJ 74) in which rights conferred under the International Convention and Protocol are recognised, is relied by counsel to urge for granting bail to petitioners.

5. Learned State Public Prosecutor fairly submitted that the case of a refugee proceeded against for offences under the Foreigners Act and also the Passport Act may demand a different approach from that of a ‘foreigner’ as such having regard to human right issues involved. But, still, since no law governing refugees has been formulated by legislation and refugees too fall within the definition of foreigner, on infringement of provisions of the Foreigners Act or the Passport Act by them, they are liable to be proceeded under the law of the land. Petitioners, whose status claimed as refugees is not disputed, were parties to the plan conceived for their illicit trafficking to a foreign country and they deserted their refugee camp, submits the Public Prosecutor. If at all bail is granted to them taking into consideration that they are refugees, and human rights issues involved, adequate conditions be imposed with directions for sending them back to refugee camp and handing them over to authorities supervising such camp asking to keep a close wa