Karnataka HC lays down guidelines regarding illegal immigrants facing proceedings under the Foreigners Act, 1946

Karnataka High Court: While deciding the instant petition, wherein the petitioners have been charged with offences under Sections 14A and 14B of the Foreigners Act, 1946, Section 25 of the Indian Arms Act, 1959 and Section 34 of the Aadhar Act, 2016, K.N. Phaneendra, J., laid down certain guidelines in order to deal with the issues arising due to the prolonged stay of illegal immigrants facing proceedings under the Foreigners Act, 1946. 

As per the facts of the case, the accused persons allegedly migrated from Bangladesh and have been staying in India without passport/ visa or any proper documents provided by the competent authorities. It was also alleged that the accused persons have obtained Aadhar Cards using illegal means. The counsel for the petitioners C. Mohammad Pasha and the Government Pleader, Rohith B.J., both of them submitted that there is no decision that spells out any specific ground upon which bail can be granted to individuals such as the accused persons. They further pointed out that there are no guidelines which have been made to regulate the stay of such persons who have come to India without passport/visa.

Perusing the submissions laid down by both the parties, the Court pointed out that though the instant matter is a simple bail matter, but the issue involved is important enough to for the Court to take notice. The Court pointed out that it is a very difficult task to lay exhaustive guidelines in the matter, but it will nevertheless try to address the ‘grey areas of law’ in the current matter. 

Some of the important guidelines laid down by the Court  are as follows-

  • In case a foreign national is arrested under the provisions of Foreigner’s Act and such individual does not possess passport or visa or possesses expired visa, then immediate proceedings shall begin to deport such individual. The jurisdictional police must right away inform the competent authorities to start the deportation proceedings.
  • If the foreign nationals fail to obtain bail in any criminal case, then they should be kept in normal jail till the disposal of the case.
  • If the foreign nationals are granted bail/ anticipatory bail under and their offences are under the Foreigners Act and other such laws, then such individuals shall be kept in detention centres till the time they are not deported to their mother country.
  • In the event a foreign national ends up being convicted, then they shall be kept in the regular prisons till they serve their sentence. After that they shall be kept in detention centres till the time they are not deported.
  • If the foreign national is acquitted, and their nationality is in dispute before the competent Tribunal, then they shall be kept in detention centres from where they shall be deported, unless they have any right which entitles them to remain in India.
  • The public prosecutors and the defence counsels shall try their best to expeditiously deal with such cases.
  • The Central and State Governments shall take all requisite steps to establish sufficient number of detention centres.
  • In case the foreign national/ accused is a woman or a child or a woman having a child, then the competent authorities have to follow the guidelines laid down in R.D. Upadhyay v. State of A.P., (2007) 15 SCC 360, and the specific statutory provisions. If the mother is in custody with an infant below or upto the age of 6 years then the Court may allow the child to accompany the mother in custody. In the event either of the parents are arrested, then the custody will be granted to the parent who is not arrested; if both the parents are under arrest, then the custody shall be given to their close relative or government shelter home as per the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015.
  • If the foreign national is an illegal immigrant who has been involved in a criminal offence under any law other than the Foreigners Act, 1946, then the Centre and State Governments shall take immediate actions with proper application of their mind. In case, the offences committed are not heinous in nature, then the Governments may withdraw those cases under Section 321 of CrPC and start the deportation process as soon as possible.

   [ Babul Khan v. State of Karnataka, Crl. P. No. 6578 of 2019, decided on 19-05-2020]

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