Kerala High Court grants interim bail to Srilankan refugees accused of illegally immigrating to Canada via Sea

Kerala High Court


Kerala High Court: In bail applications filed by the accused persons for offences under Sections 511 and 370 read with Section 34 of the Penal Code, 1860 and Sections 14-A, 14-A(b), 14-B and 14-C of the Foreigners Act, 1946, Viju Abraham, J. granted interim bail to all the accused persons, as to obtain views and instructions from the Government regarding the detention centres, and directed the accused persons to temporarily stay in an open prison and correctional home, due to lack of detention centres. Further, it directed the jurisdictional Court to take sincere steps to complete the trial of the cases at the earliest, at any rate, within a period of three months from the date of filing of the final reports.

In this case, it was alleged that the accused persons were found near a Harbour, without proper travel documents and permissions while preparing for illegally immigrating to Canada via Sea. It was also alleged that they had intentions and had done preparations for human trafficking. Further, they were arrested on 06.09.2022 and have been in custody since then.

The accused persons submitted that they are falsely implicated in the crimes, and that the investigation is practically over, and their further detention is not required for the purpose of the investigation.

The Court opined that these bail applications should not be finally disposed of, as to obtain the views and instructions from the Kerala Government, the Central Government and the Tamil Nadu Government. Further, as the accused persons are in custody from 09.06.2022 and some of them are women, children and one of the children of the accused is having serious health issues, the accused persons cannot be further detained, till instructions are obtained from the respective Government departments regarding the detention centres. Therefore, the Court granted interim bail to all the accused persons.

It further opined that as all the accused persons are citizens of Srilanka, further directions are to be issued regarding their stay after their release on bail, till specific instructions are received from the Government.

The accused persons in one of the bail applications submitted that they are husband and wife and they have come to India along with their two children for the treatment of their 4-year-old boy who is suffering from a serious brain damage and the child requires constant treatment, and that the child is presently with his mother in women’s correctional home. Further, one of the accused in another bail application is 5 months pregnant, and her continued detention in prison is affecting her as well as her baby’s health. Thus, the Court ordered them to stay at the home run by Gandhi Bhavan International Trust until Court’s further orders and directed the investigating officer for their surveillance. It also directed the Director of Health Services as well as the District Medical Officer to see that necessary medical facility is provided to the child who is suffering from ‘Kernicterus’ and to the pregnant woman, including providing necessary ambulance service, whenever required.

The Court allowed the other accused persons to stay in an open prison and correctional home and clarified that the accused persons are not staying in the said open jail as prisoners and it is only a temporary arrangement, and further directed the Superintendent of open prison and correctional center, to see that all basic amenities including food and medical facilities are provided to the accused persons without fail. Thus, interim bail was granted, subject to certain conditions.

[Dilakshan v. State of Kerala, 2022 SCC OnLine Ker 5468, decided on 28-10-2022]

Advocates who appeared in this case :

For accused persons/Petitioners: Advocate V.I. Rahul;

Advocate Sherin Edison;

For Respondents: Advocate Manu.

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