Can Bail Condition Requiring Assurance From Embassy That Foreign Accused Will Not Leave India Be Imposed? Supreme Court To Examine

The Supreme Court recently directed the Centre to submit its views on whether the bail condition requiring assurance from the Embassy/High Commission that a foreign national accused will not leave the country, has been incorporated by courts.

A division bench of Justice Abhay S Oka and Justice Sanjay Karol was hearing a challenge to certain bail conditions imposed by the Delhi High Court on a foreign national being prosecuted under the Narcotics and Psychotropic Substances Act, 1985 (NDPS Act) including the condition requiring assurance from the Nigerian High Commission that the accused would not leave the country. The said condition was imposed on the basis of the decision of the Apex Court in Legal Aid Committee vs. vs Union Of India 1 (1994) 6 SCC 731.

“The respondent will have to place on record the data, if available, regarding compliance with such condition made by the Embassies/High Commissions of various countries whenever such condition has been incorporated by the Courts", the Court said in its order dated 14.08.2023.

In its order dated 21-07-2023, the Court was of the prima facie view that such a condition would not be easy to comply with:

“Prima facie, we are of the view that none of the Embassies/High Commissions may be in a position to give assurances as mentioned in Clause (iv).” The Court had said in its previous order

In its 1994 decision in Supreme Court Legal Aid Committee vs. vs Union Of India, the Apex Court had issued directions with regard to foreign national undertrials in India. Clause (iv) of the said directions reads as under:

“(iv)in the case of undertrial accused who are foreigners, the Special Judge shall, besides impounding their passports, insist on a certificate of assurance from the Embassy/High Commission of the country to which the foreigner-accused belongs, that the said accused shall not leave the country and shall appear before the Special Court as and when required;”

The Court in its order dated 21.07.2023 mulled over whether the re-consideration of Clause (iv) in the above case, needs to be referred to a larger bench.

The Court also asked Additional Solicitor General, Vikramjeet Banerjee to inform the Court of whether there were occasions where the Indian Embassy or Indian High Commission gave such assurances in respect of an Indian citizen being prosecuted in a foreign country.

The Court in this case is also set to examine whether bail can be denied to an accused if the embassy or high commission fails to give its assurance.

“The other issue will be that in a given case, if the Embassy/High Commission refuses to give assurance as contemplated by clause (iv), when an accused is otherwise entitled to bail, whether he should be denied bail, especially when it is possible to impose other terms and conditions which will ensure that he will not leave the country.” The Court said.

The Court in the said case is to also examine whether imposing a bail condition of requiring the accused to share his/her PIN location on google maps to the investigation officer, is violative of the Fundamental Right under Article 21 of the Constitution. This issue was raised in its 21st July order.

The Court has appointed Sr. Adv. Vinay Navare as amicus curiae to assist the Court on both issues.

The Court directed the Centre to specify the technical aspects of the accused sharing his/her location and the consequences of imposing such a bail condition in its 14th August order :

“We direct the respondent to file an affidavit elaborating the consequence of the implementation of the condition of dropping a PIN on the google map which is a condition incorporated in the order granting bail. All technical aspects of dropping a PIN and consequences thereof shall be elaborated by an expert in the field by filing an affidavit.”

The matter has been posted to 13th October for further consideration. 

Notably, the same bench is considering a similar question on sharing of live location as a bail condition, in the Enforcement Directorate’s challenge against a Delhi High Court order that had granted bail to the internal auditor of Shakti Bhog Foods Limited (SBFL) in a money laundering case involving bank loan fraud of several crores.

Case Title: Frank Vitus V. Narcotics Control Bureau

Citation : 2023 LiveLaw (SC) 681

Click here to read the order