Imposing bail conditions that result in indefinite detention violates fundamental rights under Article 21 and contravenes bail provisions stated in the Cr.P.C.

JUDGMENT

The legality of the condition imposed while granting bail to a foreign national, that he shall remain in the detention centre until the conclusion of the trial, falls for consideration in this writ petition.

2. The petitioner is a Bangladeshi National. He is the first accused in Crime No.871 of 2023 of Valiyathura Police Station. The offences alleged against him are punishable under Sections 465 , 468, 471, 419 r/w 34 of IPC , Section 14 (a) of the Foreigners Act , 1946, and Section 12(1A), 12(1)(b) of the Passport Act , 1967.

3. The prosecution case, in short, is that the petitioner, along with the second accused, forged some documents for the purpose of cheating, committed impersonation, used those documents to illegally obtain an Indian passport and tried to exit India through Thiruvananthapuram International Airport by deceiving immigration officials present there.

4. The petitioner was granted default bail under Section 167 (2) of the Code of Criminal Procedure , 1973 (for short, the Cr.P.C) by the jurisdictional Magistrate as per Ext.P2 order imposing certain conditions. He is aggrieved by condition Nos. 4 and 5 in Ext.P2 order, which reads as follows:

“4. The petitioner shall remain in Transit Home, Kottiyam, Kollam District till the disposal of the case against him and he shall be under the strict supervision of the Civil Authority within the meaning of the Foreigners Order, 1948.

5. Home Manager, Transit Home, Kottayam, Kollam District shall not release the accused without the orders of this Court”.

The main prayer in the writ petition is to delete condition Nos. 4 and 5 in Ext.P2. The respondents filed separate counter- statements opposing the prayer.

5. I have heard Smt.Niharika Hema Raj, the learned counsel for the petitioner, Smt.O.M.Shalima, the learned DSGI and Sri.Sangeetha Raj N.R., the learned Public Prosecutor.

6. The learned counsel for the petitioner submitted that the condition Nos. 4 and 5 constitute a form of continued and indefinite detention, defeating the very purpose of default bail, besides violating the fundamental rights guaranteed to the petitioner under Article 21 of the Constitution of India. The learned counsel further submitted that the Foreigners Order, 1948 (for short, the Order), only enables Civil Authorities to place the foreigner involved in a crime in India at the detention centre, and such a power cannot be extended to the Magistrate/Court while granting bail.

7. The learned DSGI representing respondent No. 2 submitted that the petitioner entered India illegally from Bangladesh, obtained an Indian Passport fraudulently, and that relaxing the impugned conditions could lead to his obtaining fake Indian documents under a different identity. The learned DSGI further argued that Article 19 of the Constitution does not grant the right to move freely within India to foreigners; therefore, the learned Magistrate was justified in imposing the conditions. The learned Senior Public Prosecutor representing respondent No. 1 added that if the conditions are released, there is a significant risk of the petitioner evading court procedures and colluding with accused No. 2 to commit similar offences.

8. Section 437 of Cr.P.C. deals with the power of a Court other than a Court of Sessions or a High Court to grant bail in non-bailable offences, and Section 439 Cr.P.C. deals with the power of a Court of Sessions or a High Court to grant bail in non-bailable offences. Sub-section (3) of Section 437 says that when a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under