When Foreigners Are Granted Bail, Inform Registration Officer Under Foreigners Act: Supreme Court

A bench of Justice Abhay S Oka and Justice Ujjal Bhuyan reasoned that these authorities lack locus standi to oppose bail applications unless the offence involves Section 14 of the Foreigners Act.

“we do not see any propriety in issuing a direction that either the Civil Authority or the Registration Officer should be made a party to a bail application filed by a foreigner or a notice of the bail application be issued to the said authorities. The reason is that the authorities under the Act and the Order have no locus to oppose bail application filed by a foreigner unless bail is sought where the allegation is of the offence punishable under Section 14 of the Act. The impleadment of the Civil Authority or Registration Officer in all bail applications filed by foreigners may result in unnecessary delay in deciding the bail applications”, the Court held.

The Court issued the following directions:

1. When granting bail to a foreigner, the concerned court must direct the investigating agency or State to immediately inform the Registration Officer appointed under Rule 3 of the Registration of Foreigners Rules, 1992 about the grant of bail.
2. The Registration Officer must then notify all relevant authorities, including the Civil Authorities, enabling them to take appropriate steps under the law.

The Court passed the order in an appeal by a Nigerian national challenging certain bail conditions imposed on him in an NDPS case. On July 8, 2024, the Supreme Court had clarified that courts are not required to impose a bail condition mandating a foreign accused to obtain a certificate of assurance from their country's Embassy or High Commission that they would not leave India and would appear before the court as required.

The present issue before the Court was whether a Foreign Registration Officer or Civil Authority must be made a party to bail applications filed by foreigners.

Section 3 of the Foreigners Act, 1946 empowers the Central Government to regulate the entry, departure, and presence of foreigners in India, including issuing orders for their arrest, detention, or confinement.

The Foreigners Order, 1948, outlines provisions such as appointing Civil Authorities and regulating the departure of foreigners from India. Clause 5 of the Order mandates that no foreigner may leave India without the permission of the Civil Authority. Departure must be denied if a foreigner's presence is required to answer a criminal charge.

Amicus Curiae Vinay Navare argued that notice should be issued to these authorities when bail is sought in cases involving serious offences to enable them to provide inputs on the bail application and conditions. Additional Solicitor General Vikramjeet Banerjee also supported the issuance of notice to relevant authorities.

The Court analysed the provisions of the Foreigners Act, 1946, the Foreigners Order, 1948, and the Registration of Foreigners Rules, 1992. It observed that the authorities under the Act and the Order have powers independent of the criminal court's jurisdiction to grant bail.

Under clause 5 of the Foreigners Order, a Civil Authority can impose restrictions on a foreigner's movements, and a foreigner cannot leave India without permission, the Court observed. The Court added that even if bail is granted, the Central Government retains the authority to arrest or detain a foreigner under Section 3(2)(g) of the Act if such an order is issued.

The Court ruled that it is unnecessary to implead Civil Authorities or Registration Officers in bail applications filed by foreigners as they have no locus standi. The Court that a copy of this order will be sent to the Registrar Generals of all High Courts, who will circulate it to all criminal courts in their respective States.

Case Background

Frank Vitus, a Nigerian national, was arrested on May 21, 2014, for offenses under Sections 8, 22, 23, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). After being incarcerated for over eight years, a Special NDPS Court granted him bail on May 31, 2022, subject to various conditions. These conditions, upheld by the Delhi High Court, included furnishing a bail bond of Rs. 1,00,000 with two sureties of the same amount and obtaining a certificate of assurance from the Nigerian High Commission. Additionally, the High Court imposed a condition requiring the accused to drop a PIN on Google Maps to enable the investigating officer to access his location.

The appellant challenged the conditions related to the certificate of assurance and Google PIN location. The Supreme Court in its July 2024 judgment made the following observations:

Certificate of Assurance from Embassy/High Commission

• • The Supreme Court reviewed its earlier judgment in Supreme Court Legal Aid Committee v. Union of India (1994), where such a condition was directed as a one-time measure for foreign nationals languishing in jail due to delayed trials.
  • The Court clarified that the 1994 judgment did not establish a general rule to impose this condition in all NDPS cases involving foreign nationals.
  • It held that the imposition of such a condition should depend on the facts of each case. If the concerned Embassy or High Commission fails to provide the certificate within a reasonable time, courts have the discretion to waive this condition.
  • The Court also recognized that obtaining such a certificate is beyond the control of the accused and cannot be used as a ground to deny bail.

Condition of Dropping a PIN on Google Maps

• • The Court found this condition redundant and violative of the appellant's right to privacy under Article 21 of the Constitution.
  • Based on an affidavit by Google LLC, the Court noted that sharing a PIN location does not enable real-time tracking of the user's device. This made the condition technically irrelevant.
  • The Court emphasized that bail conditions should not result in constant surveillance of the accused, as this would amount to a form of confinement and violate the right to privacy.

The Supreme Court struck down both conditions from the appellant's bail order. It held that the condition requiring a certificate of assurance from the Nigerian High Commission was unnecessary in this case. Further, the condition mandating the accused to share a Google PIN location violated privacy rights and was technically superfluous, the Court held.

The Court reiterated that bail conditions must align with Section 437(3) of the CrPC and the principles under Section 37 of the NDPS Act. The object of bail conditions cannot be to impose arbitrary restrictions or keep a constant vigil on the movements of the accused. The judgment highlighted that while Embassies or High Commissions may provide inputs regarding the conduct of an accused, adverse records should not be the sole basis to deny bail if other conditions for bail are satisfied.

Case no. – Crl.A. No. 2814-2815/2024

Case Title – Frank Vitus v. Narcotics Control Bureau & Ors.

Citation : 2025 LiveLaw (SC) 23