Foreign Nationals Overstaying By Obtaining 'Bail Orders': Bombay HC At Goa Issues Directives [Read Judgment]

The division bench comprising of Justice Nutan D. Sardessai and Justice MS Sonak issued these directives to address the concerns raised by Public Prosecutor Pravin N. Faldessai and Amicus curiae Advocate Devidas J. Pangam that, at the stage at which the foreign nationals are released on bail, the Courts usually do not verify as to whether such foreign nationals have valid travel documents or whether visa period has already expired. 

They also brought to the notice of the court the strategy adopted by some foreign nationals to overstay. Some of them, in order to stay in India without proper travel documents or beyond the period permitted by the visa granted to them, indulge in petty offences only so that they may not be deported from India. They point out that invariably such foreign nationals secure bail from the Courts and one of the conditions of bail is that such foreign nationals do not leave India. They pointed out that undue advantage is then taken and the foreign nationals continue to stay in India on the basis of the condition in bail order.

In this regard, the court said: "Since, the State is itself conscious that some foreign nationals, at times, deliberately involve themselves in petty offences, only in order to facilitate their overstay in India or otherwise defeat the provisions of the Foreigners Act, 1946, rules and orders made thereunder, we can only say that the State/Prosecution, in such cases, must either seek expedition of such matters by filing appropriate application before the Magistrate or Courts where such matters are pending or even consider whether withdrawal from the prosecution is a better option. In either cases, however, all arrangements must be made to forthwith deport such foreign nationals who are found to have no proper travel documents or whose visa term had already expired, no sooner such matters are disposed off by the Magistrate or Courts."

However, the court cautioned that, the above approach cannot be adopted when the foreign nationals are found to be involved in serious offences say under N.D.P. S. Act, cyber fraud, rape etc.The bench then issued these directives:

• Take emergent steps as may be permissible in law, in order to deport the foreign nationals in Goa, who have no proper/valid travel documents or whose visa terms have since expired, or such like reasons, where there are no legal impediments for taking such steps. Respondent No.5 is also directed to file affidavit of compliance on or before 3rd June, 2019, indicating the statistics/status of the action/steps taken in this regard in this Court;

• In pending matters involving foreign nationals who have no proper/valid travel documents or whose visa term has expired or for like reasons, State/Prosecution must file appropriate applications before the Magistrate/Courts to bring this aspect to the notice of the concerned Magistrate/Courts where such matters are pending. Similarly, the State/Prosecution must, by filing a reply bring to the notice of Magistrate/Courts such circumstances when the foreign nationals who have no proper travel documents or whose visa term has expired, apply for grant of bail;

• The Magistrate/Courts where the matters involving foreign nationals who have no proper/valid travel documents or whose visa term has expired or like reasons must take cognizance of such aspects and thereafter make appropriate orders in accordance with law so that the legal process is not used as an instrument to facilitate overstay or otherwise violate the provisions of Foreigners Act, 1946, rules and orders made thereunder.

• We also request the Principal District Judges of North and South Goa Districts to consider holding a special workshop to develop a set of best practices to deal with the cases involving the foreign nationals, who have no proper/valid travel documents or whose visa term has already expired. The two Principal District Judges may also consider involving the officials from the Ministry of Home Affairs (Foreigners Division), Government of India, as also the State Government/Prosecution agencies, in such workshop so that some coordinated action on the subject, becomes feasible.

• Make the Detention Centre constituted by order dated 7th February, 2019 at the Old Judicial Lock Up at Mapusa, fully operational by providing necessary infrastructure and staff, as expeditiously as possible, and in any case, within a period of three months from today. Respondent No.5 is directed to file an affidavit of compliance on or before 3rd June, 2019, in this Court;

• In making operational the aforesaid Detention Centre, are directed to comply with, to the extent possible, guidelines set out in "Model Detention Centre/Holding Centre/Camp Manual" circulated by the Government of India, Ministry of Home Affairs ( Foreigners Division ) by communication dated 31st January, 2019. In particular, Respondent Nos.1, 2 and 5 must endeavour to provide the amenities set out in Chapter 4 of the aforesaid Manual within timelines as indicated above;

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