Don't allow foreigners to leave India, if presence needed in criminal case: Supreme Court

The bench said the registration officer should then communicate the bail order to all relevant agencies, including the civil authority.

The Supreme Court on Monday said a foreigner should not be allowed to leave India if required to answer a criminal charge.

A bench of Justices Abhay S Oka and Ujjal Bhyuan said while granting bail to a foreign national, the court should issue a direction to the state or the prosecuting agency, to immediately inform about its order to the registration officer concerned under the Registration of Foreigners Rules, 1992.

”When a foreigner’s presence is required in India to answer a criminal charge, permission to leave India must be refused. Under the Order (1948 order), the civil authority can impose restrictions on the movements of a foreigner,” the bench said.

The bench said the registration officer should then communicate the bail order to all relevant agencies, including the civil authority. The apex court’s order came in a case where it had decided two main issues concerning bail conditions imposed on a Nigerian national in a drugs case in July, 2024.

The top court had held the bail conditions, which allowedan investigating agency to continuously track the movements of an accused, violated the right to privacy guaranteed under Article 21 of the Constitution. In its order passed on Monday, the bench referred to the provisions of the Foreigners Act, 1946, and said according to clause 5(1)(b) of the Foreigners Order, 1948, no foreigner should leave India without the leave of the civil authority having the relevant jurisdiction.

Once a foreigner was released on bail, the top court said, they couldn’t leave India without the permission of the civil authority under clause 5 of the 1948 order.

It said if such information was furnished, it would enable the authorities under the Act, the rules and the order, to take appropriate legal steps. The bench directed a copy of its order to be forwarded to registrar generals of all the high courts, who in turn would forward it to all the criminal courts in the respective states.

The top court was dealing with the question whether it was necessary to implead a foreign registration officer appointed under rule 3 of the Registration of Foreigners Rules, 1992, in the bail application filed by a foreigner within the meaning of the 1946 Act. The bench said the authorities under the law and the 1948 order have no locus to oppose the bail application filed by a foreigner unless the bail was sought where the allegation was of the offence punishable under Section 14 of the Act.

Section 14 deals with penalty for contravention of the law’s provisions, etc. ”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,” it said.