Imposing a Bail Condition to keep a Foreigner in Detention Center is not in violation of Article 21: Karnataka High Court

IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 04TH DAY OF SEPTEMBER 2020 BEFORE THE HON’BLE MR.JUSTICE HANCHATE SANJEEVKUMAR CRIMINAL PETITION NO.200595 2020 Toichubek Uulu Bakytbek S o Toichubek Age: about 31 Years R o Kapsalamou 4 1 Kazakhspan City & Country Kyrgyzstan Now at Ratkalpur Mosque Bidar 585 4014 By Sri Syed Talha Hashmi Advocate) The State of Karnataka Through Bidar Town Police Station Bidar 585401 Through SPP High Court of Karnataka At Kalaburagi 585107 By Sri Prakash Yeli Addl.SPP) … Petitioner … Respondent This Criminal Petition is filed under Section 14(a) 14(c) of Foreigners Act 1946 r w Section 439(1)(b) of Cr.P.C praying to set aside modify the Condition No.6 imposed by the Trial Court while granting bail in Crime 2 No.58 2020 of Gandhi Gunjon the file of Prl. Civil Judge & JMFC II Bidar. This petition having been heard and reserved for orders on 24.08.2020 coming on for “Pronouncement of Order” this day the Court made the following Through Virtual Court) The above petition is filed under Sections 14(a) 14(b) & 14(c) of Foreigners Act 1946r w Section 439(1)(b) of Code of Criminal Procedure 1973 ‘Cr.P.C.’ for short) for setting aside modification of the Condition No.6 imposed by the Prl. Civil Judge & JMFC II Bidar while granting bail in Crime No.58 2020 of Gandhi Gunj Police Station now culminated into C.C.No.708 2020. The facts of the prosecution case in nutshell : The petitioner is a foreign national and is the citizen of Kyrgyzstan had come to Bidar District Karnataka State) on a Tourist Visa and stayed in Bilal Masjid at Bidar. It is alleged against the petitioner that he had come to India on Tourist Visa but had violated 3 the conditions of Visa and thus committed the offence of violation of provisions of the FA Act. Therefore with this accusation the petitioner had violated provisions of the FA Act by violating the regulations of granting passport and visa which led in registration of a case against the petitioner in Crime No.58 2020 for the offences punishable under Sections 14(a) 14(b) & 14(c) of FA Act 1946 and the petitioner was arrested and produced before the Trial Court and he was remanded to custody. Thereafter the petitioner had filed bail petition under Section 437 of Cr.P.C. before the Trial Court which Court by its order dated 12.06.2020 granted bail by allowing the bail petition imposing as many as six conditions. Condition No.6 therein and impugned herein reads thus “The accused shall be kept in near by detention center or if not available shall be kept in detention centre at Bangalore till disposal of this case.”. Being aggrieved by said Condition at Sl.No.6 4 the petitioner appealed to the Court of the Addl. District Sessions Judge Bidar in Crl.Misc.No.297 2020 for modification of Condition No.6. The learned Sessions Judge has dismissed the petition filed under Section 439(1)(b) of Cr.P.C. refusing to modify Condition No.6 imposed by the Trial Court. Being aggrieved by the said rejection order passed by the learned Sessions Judge the petitioner knocked the doors of this court seeking modification relaxation of Condition No.6 stated supra. I have heard Mr. Syed Talha Hashmi learned counsel appearing for the petitioner and Sri. Prakash Yeli learned Addl. State Public Prosecutor appearing for the State. I have also perused the records made available to this court and gone through the law applicable to the case on hand. learned counsel the petitioner vehemently submitted that the Condition No.6 imposed 5 by the Trial Court is harsh one which curtails the life of and liberty of the petitioner as envisaged in Article 21 of the Constitution of India. Further submitted that even though the petitioner is granted bail and ordered to set at liberty on bail pending the trial but imposition of Condition No.6 ordering to keep the petitioner in Detention Center is virtually amounting to negating the benefit of bail granted to the petitioner. Further submitted that the petitioner would abide by all other conditions and also would not leave the territory of India till completion of the trial as also the petitioner is unable to leave the territory of country for the reason that his passport and visa were seized by the concerned police. Therefore submitted the petitioner is ready to face the trial and abide by all the conditions imposed by the Trial Court. Hence prayed for allowing the petition by modifying relaxing the Condition No.6 imposed by the Trial Court. 6 learned counsel petitioner relied upon the decision of co ordinate Bench this Court in Crl.No.8785 2018 decided on 11.04.2019 and submitted that even though for the similar offences foisted under the provisions of the FA Act 1946 there was no such condition was imposed in the said decision of keeping the petitioner in Detention Center. Further he relied on the authority of the Madurai Bench of Madras High Court in Crl.OP(MD)Nos.5769 6018 & 6103 2020 decided on 12.06.2020. Further the learned counsel relies on the order of the Allahabad High Court in Bail.No.2898 2020 dated 02.06.2020 and submitted no such condition of keeping in Detention Center is passed. Therefore submitted that imposition of condition keeping the petitioner in Detention Center is not correct. Therefore prayed to set aside modification relaxation of the Condition No.6 imposed by the Trial Court. 7 7. On the other hand learned Addl. State Public Prosecutor vehemently argued and submitted that the Trial Court has imposed Condition No.6 stated supra as per the Guidelines issued by this court in the case of Babul Khan & Ors vs. State of Karnataka & another and therefore there is no error committed by the learned Magistrate in imposition condition impugned herein. Further learned Addl. State Prosecutor has taken the court to the Guidelines issued by this court in Babul’s Khan case at para No.112 and submitted that the Trial Court has not committed any error in imposition such Condition No.6 which well within the realm of law. He further submitted that as per the dictum made by this court in the Babul’s Khan case at Para No.115 the learned Magistrate has imposed such condition and that is rightly affirmed by the learned Sessions Judge and 8 thus contended the Condition No.6 impugned does not call for any interference at the hands of this court. Further submitted that this court in Babul’s Khan case supra) had observed that even though the court has granted bail and enlarged the petitioners on bail in that case the petitioner cannot be given free movement across the India as per their whims and fancies till the case is decided or till the Government decides whether they have to be deported to their mother country or not. Thus contend that under these circumstances in view of guidelines that any foreign nationals who violates the rules law relating to visa and passport and are found to be in violation of provisions of FA Act they shall be kept in a Detention Center. On these grounds prays for dismissal of the petition. In the present case the petitioner is facing offences under Sections 14(a) & of the FA Act. The petitioner is granted bail on 12.06.2020 and one of 9 the conditions imposed while enlarging on bail is that the petitioner shall be kept in Detention Center without prior permission of the court. For imposing such condition the Trial Court has observed in Para No.19 that as per the order of this Court in Babul’s Khan case supra) such conditions is imposed. Therefore the Trial Court’s decision of imposing of such condition is preceded by the dictum of this Court in Babul’s Khan case 1920 The Citizenship Registration of Citizen and Registration of National Identity Card) Rules 2003 ForeignersOrder 1964 and under various provisions of Code of Criminal Procedure 1973 and Indian Penal Code 1860 has made observations at paragraphs No.112 & 115 which reads as follows 10 “112. Before parting with this Judgment I feel it just and necessary to issue the following guidelines to the Courts and the concerned authorities on the basis of the above said discussion though it may not be it may have some help to the exhaustive but authorities in the helm of affairs. 1) As soon as the offence under Foreigner’s Act and other Laws is detected and there is a strong prima facie material to show that the detected person is a foreign national and if he has no Pass port or Visa or if the visa is expired and he has no right to stay in Indian territory proceedings shall be immediately started to deport him to his nation without unnecessary delay from the date of registration of FIR against such person. 2) The jurisdiction police have to immediately take steps to inform the concerned competent authorities to initiate all proceedings to deport such foreign national to his mother country visa viss other competent authorities also share the details of such person amongst themselves and concerned jurisdictional Court. 3) If the Court refuses to grant bail to those personsin any criminal case the Court shall keep such person in regular jail till the disposal of the case. 4) If for any reason the Courts grants bail including anticipatory bail in any criminal case where the offender is a foreign national and the offences are under the Foreigners Act and or also under any other Laws for the time being in force and their visa is cancelled or lapsed or they have no pass port or they are illegal migrants then the Courts shall specifically 11 order to keep them in detention centers unless the competent authority has passed any orders under section 3(2) to of Foreigners Act 1946 or till further orders of the court or till they are deported to their mother countries. Emphasis supplied by me) 5) If the case registered against the foreign nationals ended in conviction they shall be ordered to be kept in regular prison of the stat till they serve their sentence and thereafter serving the sentence they shall be kept in detention centers till they are deported to their country. 6) If the case ends up in discharge release of the accused or acquittal and their nationality is in dispute before the competent Tribunal they shall be ordered to be kept in detention centers till they are deported to their country unless they have any right or otherwise entitled to remain in Indian Country or the competent authority has passed any orders under section 3(2) to of Foreigners Act 1946 the acquittal discharge or release of the Accused is no bar for concerned competent authorities to question the nationality of that person before the 7) The public prosecutors the defence Counsel and the Courts shall make all their efforts to expeditiously deal with such cases by giving priority for its early disposal so as to enable other competent authorities to take facts and circumstances of each case for deportation of such foreign national accused as early as possible. The Court may also if permissible under law and applicable to the facts and circumstances of a case may invoke sections steps under 12 265A to 265L under chapter XXIof Criminal Procedure Code after following due procedure. 8) As far as possible where a foreign national is involved in a case the courts shall make their endeavor to record evidence and guide the write if the accused in such case is not conversant with the local language. in English Language 9) The Central Government and the State Governments shall take all necessary steps to establish as many as necessary Detention Centers at Cities Districts and Taluka places as per the detention Center Manual referred to in this judgment with all necessary basic facilities as per the detention centre manual as per the directions and guidelines of the Apex Court in Upadhyaya Vs State of A.P. and 2007)15 SCC 337 referred to in the body of this judgment in detail so as case to keep the foreign nationals till their deportation whenever they are ordered to be kept in detention centers by competent authorities or by the Courts. reported in 10) In case of accused foreign national is a woman a woman having a child or the child itself the competent authorities including jail authorities detention center and the Courts and Juvenile Justice Boards have to follow the Guidelines of the Hon’ble Apex Court laid down in the Upadhyaya’s case noted supra addition to the provisions under the Prisons Act and as well Prisons Rules and Juvenile Justice Act and Rules strictly and meticulously in their letter and spirit. If a mother who is a foreign national is in custody and having infant below the age of six 13 years or up to six years the court may order the child to accompany the mother during her custody. If either of parents got arrested then the custody of the child may be given to the other parent who is not arrested. If both the parents are arrested and they are in custody in same or in some other case court may order custody of children to their close relative or to Government shelter home or to any other organization recognized or undertaking of the government where government or concerned authorities can monitor the well being of the Care and child as per Juvenile Justice Protection of Children) Act 2015 and Rules. jail authorities have 12) If a foreign national is convicted by the Court and any application for parole is made consideration the conditions enumerated under section 4 of the Foreigners Act 1946 additional to the Prisons Act and Rules. 13) If a Foreign National is found to be an illegal migrant and not a citizen of India and has been involved in any criminal offences under other law of the land for the time being in from foreigners act the State force apart Government or the central Government as the case may be take immediate necessary steps by exercising their discretion after applying their mind to the facts and circumstances of the case if necessary and if the circumstances warrants if the offences are not heinous or antisocial or not punishable with imprisonment for more than three years and or with fine only withdraw those cases under Section 321 of the concerned to enable Cr.P.C. so as authorities to take necessary steps to depart such persons to their mother country as expeditiously as possible. 14 14) The State Legal Services Authority District Legal Services Authorities and Taluka Legal Services Committees shall make a periodical visit to the jails and Detention centers to ensure and satisfy itself that the concerned authorities have taken necessary steps to implement the directions issued by the Apex in Upadhyay’s case and also the detention center manual so as appropriate action to inform the concerned authorities to rectify their mistakes and also the Legal services authorities suo motu can take appropriate steps in accordance with law to get the mistakes or errors rectified on the legal side. 15) The Central Government and the respective state Governments shall often revise Detention Center Manual and also the {risons Act and Rules based on the need of the hour to bring necessary changes so as to effectively efficiently implement the very object of such Manual and Laws. 16) The Central Government the State Government the Karnataka State Legal Services Authority Karnataka Judicial Academy and Police Academy appropriate necessary swift action to sensitize all the stake holders Judges Prosecutors Police Immigration Officers Officers Custom and FRRO FRO) Jail Authorities and Officers delegated in Detention Centers in this regard. the State shall 17) Registry is directed to send a copy of this Order to the Chief Secretary Principal Secretary to Home Department Director General and Inspector General of Police Karnataka State Legal Services Authority 15 and Karnataka Judicial Academy appropriate necessary steps.” “115. However when the police have invoked Section 14 of the Foreigners Act the presumption u s.9 of the Foreigners Act will come into play unless it is shown to the court during the course of trial that the petitioners are not foreign nationals they should be presumed as foreign nationals. Apart from invoking Section 14A of the Foreigners Act it is alleged that they were holding the empty cartridges with them and therefore the police have invoked Section 25 of the Indian Arms Act. However the major offences are u s.14A and 14B of the Foreigners Act. The offence u s.25 of the Arms Act is not punishable either with death or life imprisonment. Therefore in my opinion imposing stringent conditions the by means of petitioners are entitled to be enlarged on bail. However it is made clear that though the court is enlarging them on bail they cannot be given free movements to wonder across India as per their whims and fancies till the case is decided or till the Government decides whether they have to be deported to their mother country. Till that point of time in my opinion they shall be kept in Detention Centre with all facilities as noted above and if they are acquitted in the case registered against them the Government has to take appropriate steps whether the determination of their nationality has to be done by the Competent Authority and whether they are still to be deported to their mother country and thereafter only appropriate decision has to be taken by the Government. Further if they are convicted for any reason the Competent Authorities have to take appropriate steps to deport them to their country immediately.” Emphasis supplied by me) 16 10. Further the Hon’ble Apex Court in the W.P.No.(Civil) No.406 2013 was pleased to pass order I.A.No.105821 2018 dated 12.09.2018 20.09.2019 and issued directions for setting up of Detention Center and accordingly the Central Government had issued directions and also prepared Standard Operating Procedure and accordingly the respondent State has also established Detention Center in Karnataka. This is also observed by this court in Babul Khan’s caseand therefore keeping the foreign nationals or any suspected foreign nationals for having violated the provisions of the FA Act in the Detention Center is perfectly justifiable. 11. The Detention Centers are not to be construed as putting them into a Jail Prison. The object behind such establishment of Detention Center and placing foreign nationals against whom cases have been registered under the FA Act 1946 is just to restrict their movements across India and should not travel 17 according to their whims and fancies and remain un traceable or absconded or flee away from justice. Therefore under facts and circumstances imposition of such condition placing the petitioner in Detention Center cannot be said to be harsh or even illegal and unjustifiable and it is not violative of Article 21 of the Constitution of India. Where reasonable restriction is made and that is found to be reasonable that cannot be said that there is violation of Article 21 of the Constitution of India and in this regard I am unable to accept the contention urged by the learned counsel for the petitioner that there is violative of Article 21 of the Constitution of India imposing such condition. The State has every power to make such a restrictions as vested under the law keeping the sovereignty of the country. 12. The Madurai Bench of Madras High Court in Crl. OP(MD)Nos.5769 6018 & 6103 2020 decided on 12.06.2020 is relied upon by the counsel for the 18 petitioner. The Madurai Bench of Madras High Court while releasing the petitioners therein on bail had also imposed such similar condition at paragraph Nos.23.2 by ordering that it is open to the authorities to require the petitionersto stay at the special camp earmarked under Section 3(2)(e) r w 4(2) of the Foreigners Act 1946. 13. Section 3(1) & Section 3(2) e) of the Foreigners Act stipulates as follows “3. Power to make orders.The Central Government may by order make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description for prohibiting regulating or restricting the entry of foreigners into India or their departure there from or their presence or continued presence therein. foreigner In particular and without prejudice to the generality of the foregoing power orders made under this section may provide that the foreigner a) xxxxxx b) xxxxxx c) xxxxxx cc) xxxxx 19 d) xxxxxx shall comply with such conditions as may be prescribed or specified requiring him to reside in a particular place movements requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified vi) prohibiting him from association with persons of a prescribed or specified description vii) prohibiting him from engaging in activities of a prescribed or specified description viii) prohibiting him from using or possessing prescribed or specified articles ix) otherwise regulating his conduct in any such particular as may be prescribed or specified ” 20 14. Therefore as per clauses i & ii of Clause 3 of Sub section 2 of Section 3 of the FA Act gives power requiring any foreign nationals who is facing offences under the FA Act to make him to reside in a particular place or imposing restrictions on his movements. Therefore making the petitioners to reside in a particular place and imposing restrictions on his movement is as per the statute and therefore there is no unreasonableness while imposing such condition by the Trial Court. This court while considering all aspects in Babul Khan’s casethe Trial Court by following the same had imposed condition No.6. Therefore it is virtually in consonance of the law of the country and therefore it cannot be said that there is violation of Constitution of India. 15. Further the imposition of condition of placing the foreigners in a particular place who are facing offences under any enactment made in this country is as per Section 4(1) & of Foreigners Act. 21 For easy reference Section 4(1) & of the FA Act are extracted as under “4. Internees.(1) Any foreigner in respect of whom there is in force any order made under clause of sub section of section 3 directing that he be detained or confined shall be detained or confined in such place and manner and subject to to maintenance such conditions as discipline and the punishment of offences and breaches of discipline as the Central Government may from time to time by order determine. 2) Any foreigner in respect of whom there is in force an order under clause of sub section of section 3 requiring him to reside at a place set apart for the residence under supervision of a number of foreigners shall while residing therein be subject to such conditions as to maintenance punishment of offences and breaches of discipline as the Central Government may from time to time by order determine.” 16. When there is a legislative mandate to act upon such mandate then passing order as per the legislative mandate cannot be termed as illegal or unjustified. In the present case as discussed above as 22 per Sections 3 and 4 of the FA Act condition No.6 is imposed. Further as per the dictum of this Court in Babul Khan’s case the learned Magistrate has imposed condition No.6 and therefore under these circumstances it cannot be said that the imposition of such condition is unreasonable or illegal. The learned Magistrate has simply followed the dictum of this Court rendered in Babul Khan’s case (supra). Further more a greater caution is to be exercised while dealing with foreign nationals in such offences imposition of condition No.6 by the learned Magistrate and then affirmed by the learned Sessions Judge is as per law as stated above. Imposition of such condition is also in the interest of protecting sovereignty of the country. Sovereignty of the country is not only to be preached but it is also an obligation of practice by every authority. The imposition of condition of putting the petitioner into detention centre is with the object that he she should not abscond or flee away from justice 23 and leave the country on the pretest of enlarging on bail. Therefore such condition is imposed and ordering for putting the petitioner in a detention centre cannot be termed as negating the bail. Putting a foreign nationals who violates the law of the country after obtaining bail in a detention centre is different from putting them in a jail. Therefore ordering for placing the petitioner in a detention centre till completion of trial and thereafter till deporting to his country is perfectly within the ambit of law as enshrined in the FA Act and also as per the dictum of this Court in Babul Khan’s case (supra). Therefore the order of the learned Magistrate imposing condition No.6 cannot be said to be unreasonable illegal or unjustified. Therefore the petition filed is found to be devoid of merits and thus is liable to be dismissed. Accordingly the present petition dismissed. JUDGE Sd 

Summary: Imposing a Bail Condition to keep a Foreigner in Detention Centre is not in violation of Article 21: Karnataka High Court Imposing of a condition of placing in a Detention Center cannot be said to be illegal and unjustifiable and is not violative of Article 21 of the Constitution held by Justice Hanchte Sanjeevkumar in Toichubek Uulu Bakytbek and the State of Karnataka [Criminal Petition No. 200595/2020]. Facts related to this case is: the petitioner was a foreign national and was a citizen of Kyrgyzstan, had come to Bidar District of Karnataka on a tourist visa and stayed at Bilal Masjid at Bidar. It was alleged against the petitioner that he had come to India On a tourist visa but had violated the conditions of the visa and thus committed the offence of violation of the provision of the FA Act. Therefore with the accusation, the petitioner had violated the provisions of the FA Act by violating the regulations of granting passport and visa, which led to the registration of a case against the petitioner for the offence under sections 14(a),14(b), and 14(c)of FA Act,1946and he was arrested. It was further observed by the Hon’ble Court that “The Detention Centres are not to be construed as putting them into a Jail/Prison. The object behind such establishment of Detention Centre and placing foreign nationals against whom cases have been registered under the FA Act, 1946 is just to restrict their movements across India and should not travel according to their whims and fancies and remain untraceable or absconded or flee away from justice. Therefore, under these facts and circumstances imposition of such condition placing the petitioner in Detention Centre cannot be said to be harsh or even illegal and unjustifiable and it is not violative of Article 21 of the Constitution of India.” It was further observed by the court that “Where a reasonable restriction is made and that is found to be reasonable that cannot be said that there is a violation of Article 21 of the Constitution of India and in this regard, I am unable to accept the contention urged by the learned counsel for the petitioner that there is violative of Article 21 of the Constitution of India imposing such condition. The State has every power to make such restrictions as vested under the law keeping the sovereignty of the country.” The Hon’ble Court while relying on the case of  Babul Khan &amp; Ors vs. State of Karnataka &amp; another [Crl.P.No.6578/2019], observed that “ Further, the Hon’ble Apex Court in the W.P.No.(Civil) No.406/2013 was pleased to pass order on I.A.No.105821/2018 dated 12.09.2018 and 20.09.2019 and issued directions for setting up of Detention Centre and accordingly, the Central Government had issued directions and also prepared Standard Operating Procedure (SOP) and accordingly the respondent-State has also established Detention Centre in Karnataka. This is also observed by this court in Babul Khan’s case (supra) and therefore keeping the foreign nationals or any suspected foreign nationals for having violated the provisions of the FA Act in the Detention Centre is perfectly justifiable.” It was held by the Court that putting foreign nationals, who violates the law of the country after obtaining bail, in a detention centre is different from putting them in jail. Therefore, ordering for placing the petitioner in a detention centre till completion of trial and thereafter till deporting to his country is perfectly within the ambit of law as enshrined in the FA Act and also as per the dictum of this Court in Babul Khan’s case (supra).  Accordingly, the petition has been dismissed. Click here to read the judgement