Karnataka HC Issues Guidelines To Keep Illegal Migrants In Foreign Detention Centres Even After Grant Of Bail

 In a latest development, the Karnataka High Court in the case of Babul Khan And State of Karnataka in Case No. : CRL.P. No. 6578/2019 delivered on May 19, 2020 while taking a stern view of illegal migrants and foreigners overstaying in India has held in no uncertain terms that they should be kept in ‘detention centers’ till the further orders of the court or till they are deported to their mother country. It minced no words to put across that illegal migrants sometimes pose threat to national security and infringe rights of Indian citizens. It also made it clear that this cannot be allowed to go on with impunity!

To start with, the ball is set rolling in the opening para of this latest judgment by stating that, “This petition is filed seeking grant of bail under Section 439 of Code of Criminal Procedure, pertaining to Crime No. 213/2018 of Sarjapur Police Station. The said case after charge sheet culminated into CC No. 1734/18. Finally after committal proceedings, it came to be registered as SC No. 5014/2019, pending on the file of III Additional District and Sessions Judge, Bangalore Rural District, sitting at Anekal. The said case was registered for the offence punishable under Sections 14A and 14B of the Foreigners Act, 1946; under Section 25 of the Indian Arms Act, 1959; and Section 34 of the Aadhaar Act, 2016.”

Delving deeper and setting the background, para 3 then envisages that, “The brief facts of the case divulged from the Charge sheet papers are that:

Accused Nos. 1 to 15 named in the Charge sheet belonged to Bangladesh, illegally migrated to Indian Territory, without Passport and Visa and they have been staying in Indian Territory without any legal documents or any license or permission from the competent authorities. It is also alleged that Accused Nos. 1, 3, 14 and 15 have illegally obtained Aadhaar Cards by fraud and misrepresenting themselves as Indian Citizens. It is further alleged that Accused No. 2 was possessing bullets and thereby the Accused persons have committed an offence under the Arms Act.”

While elaborating further, it is then pointed out in para 4 that, “On plain reading of the Charge sheet papers, it is seen that specific allegations have been made against the petitioners that, they are Bangladesh citizens, and they have been illegally migrated to Indian Territory and residing in India without any authority of law. Hence, they have committed the offence under Sections 14A and 14B of the Foreigners Act. So far as other offences are concerned, no such allegations are made against the petitioners.”

Be it noted, a Bench of Karnataka High Court of Justice KN Phaneendra after going through the case in detail has issued the following detailed guidelines in para 112 on dealing with illegal migrants and foreigners facing proceedings under the Foreigners Act, 1946 which form the bedrock of this notable judgment:

1.  As soon as the offence under Foreigners 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 Passport 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 jurisdictional police have to immediately take steps to inform the concerned competent authorities to initiate proceedings to deport such foreign nationals to his/her mother country vis-à-vis other competent authorities also share the details of such person amongst themselves and the concerned jurisdictional Court.

3.  If the Court refuses to grant bail to those persons (foreign nationals) in any criminal case, the Court shall keep such person in regular jail, till the disposal of the case.

4.  If for any reason the Court 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 Passport, or they are illegal migrants, then the Courts shall specifically order to keep them in detention centers, unless the competent authority has passed any order under section 3(2)(a) to (f) of Foreigners Act, 1946, or till further orders of the court or till they are deported to their mother country.

5.  If the case registered against the foreign nationals, ended in conviction, they shall be ordered to be kept in regular prison of the state till they serve the sentence, and after 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 India, or the competent authority has passed any orders under section 3(2)(a) to (e) of Foreigners Act 1946, the acquittal, discharge or release of the accused is no bar for the concerned competent authorities to question the nationality of that person before the competent Tribunal.

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 appropriate steps under the 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 265A to 265L under chapter XXI (A) of Code of Criminal Procedure, 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 write the judgment in English language, if the accused in such case is not conversant with the local 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 Center Manual, as per the directions and guidelines of the Hon’ble Apex Court in the case of Upadhyaya Vs State of A.P. and others reported in (2017) 15 SCC 337, so as 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.

10. In case, the accused/foreign national is a woman or a woman having a child or the child itself, the competent authorities, including jail authorities, detention centers and the Courts and Juvenile Justice Boards have to follow the guidelines of the Hon’ble Apex Court laid down in Upadhyaya’s case noted supra; in addition to the provisions under the Prisons Act as well as Prisons Rules, and Juvenile Justice Act and Rules strictly and meticulously in their letter and spirit.

11. If a mother who is a foreign national, is in custody and having infant below the age of six 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 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 child, as per Juvenile Justice (Care and Protection of Children) Act, 2015 and Rules.

12. If a foreign national is convicted by the Court and any application for parole is made, the jail authorities have to take into consideration the conditions enumerated under Section 4 of the Foreigners Act, 1946, in addition 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 criminal offences under other law of the land for the time being in force, apart from Foreigners Act, the State 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 said offences are not heinous or anti-social, or not punishable with imprisonment for more than three years, or with fine only to withdraw those cases under Section 321 of Cr.PC., so as to enable the concerned authorities to take necessary steps to deport such persons to their mother country, as expeditiously as possible.

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 Ho’nble Apex Court in Upadhyay’s case and also the Detention Center Manual, so as to take appropriate action to inform the concerned authorities to rectify their mistakes and also the Legal Services Authorities suo-motu can take 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 the Detention Center Manual and also the Prisons Act and Rules based on the need of the hour to bring necessary changes, so as to effectively and 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 in the State shall take appropriate necessary swift action to sensitize all the stake holders, Judges, Prosecutors, Police Officers, Custom and Immigration Officers (FRRO-FRO), Jail Authorities and Officers delegated in Detention Centers, in this regard.

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 and Karnataka Judicial Academy, for appropriate necessary steps.

Going forward, it is then aptly stated in para 115 that, “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 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, by means of imposing stringent conditions, the 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 wander 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 or not. 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.”

In essence, this latest judgment pronounced by the Karnataka High Court lays down in no uncertain terms that illegal migrants have to be kept in any of the Foreign Detention Centers in Bangalore or at any place nearby Bengaluru city even after the grant of bail till the trial is concluded. They have to comply strictly with bail conditions and not indulge in hampering or tampering the prosecution witnesses! It also makes it clear that authorities have to provide proper facilities to children of illegal migrants who are in jail or detention centers till they are deported to their country in consonance with the UN Declaration with reference to the rights of the child as adopted by the General Assembly and Article 24 of the International Covenant on Civil and Political Rights, 1966! Same is the case with women also!

Sanjeev Sirohi

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