"The scope of a bail petition is only to consider whether or not, in a given case, an under-trial is to be released from the custody of the court, namely ‘judicial custody’ to the custody of a surety."
This observation was made by the Delhi High Court while examining the bail application of a foreign national charged under various sections of the IPC and the Foreigners Act. The case was further complicated by the petitioner's request for the State authorities to grant her a visa to allow her to reside in India during the ongoing criminal proceedings. The Court's observation sheds light on the distinction between judicial custody for prosecution and executive detention for immigration violations.
The petition sought regular bail for a foreign national involved in FIR No. 148/2022, registered under the Immoral Traffic (Prevention) Act, 1956, and various sections of the Indian Penal Code, 1860. The case became more complex when the petitioner requested that the court direct the State authorities to grant a visa, allowing them to reside in India and participate in the ongoing criminal proceedings. Following the investigation, charges under Sections 366-B, 370, 419, 420, 465, 466, 467, 468, 471, 474, 109, 120-B, 34 of the IPC, and Section 14 of the Foreigners Act were initially added. However, by 02.02.2024, the Investigating Officer clarified that only charges under Section 14 of the Foreigners Act and Section 174-A of the IPC would be pursued. The trial court framed charges accordingly on 02.02.2024.
Contentions of the Petitioner:
The petitioner claimed she was entrapped and brought to India in December 2019 with promises of a work visa, during which her passport was taken, and she paid Rs. 5 lakh. She argued she has been falsely implicated in FIR No. 148/2022 and has been in judicial custody since her arrest in July 2023. The charges against her are minor, carrying a maximum sentence of five years, with no other incriminating evidence. She contended the detention is due to visa-related issues, which she is willing to address in trial. With her passport in court, she poses no flight risk. The petitioner sought bail without detention in a restriction center and proposed to regularize her visa status through the FRRO upon release.
Contentions of the Respondent:
The State opposed the petitioner's bail, citing allegations of her involvement in a human trafficking and prostitution ring in Delhi and Gurugram, including holding foreign women’s passports. The petitioner was accused of staying illegally in India without a valid visa or passport.
The FRRO highlighted that she overstayed her visa by seven years, was blacklisted, deported in 2019, and banned from re-entering India. Despite this, she allegedly returned and engaged in illegal activities. The FRRO argued she should face prosecution under Section 14-A of the Foreigners Act, not Section 14, and raised concerns about visa issuance to someone facing such charges.
The FRRO also insisted that if bail is granted, the petitioner should either be issued a visa or placed in a detention center due to her illegal immigration status.
Observation of the Court:
The Court’s analysis distinguished two aspects of the petitioner’s case: her status as an under-trial facing charges under the Foreigners Act and IPC for visa violations, and her illegal stay in India without a valid visa. The Court noted that while both situations involve deprivation of liberty, judicial custody is related to her prosecution under the Foreigners Act and IPC, where she sought bail. In contrast, executive detention pertains to actions under the Foreigners Act, which the FRRO can impose for a foreign national’s illegal presence in India.
The Court clarified that a bail petition is limited to determining whether an under-trial can be released from judicial custody and does not address the validity of the petitioner’s passport or visa status, which falls outside the scope of bail proceedings. The Court emphasized that any action by the Central Government concerning her visa status must be challenged in the proper legal forums, not in the bail proceedings.
Regarding concerns about post-bail detention, the Court explained that a foreign national could be released from judicial custody but could still face executive detention under the Foreigners Act for violating immigration laws. The Court granted bail to the petitioner with conditions, including furnishing a personal bond, restrictions on her movement, and surrendering her passport. However, it also stated that the Central Government was not barred from taking action regarding her visa status, as long as it did not violate the Court's order restricting her movement outside Delhi.
The decision of the Court:
The Court disposed of the petition, clarifying that the order should not be interpreted as an opinion on the merits of the ongoing trial. It directed that a copy of the order be sent to the concerned Jail Superintendent and concluded any other pending applications.
Case Title: Aizaz Kilicheva @ Aziza @ Maya v. State Nct Of Delhi
Case no: BAIL APPLN. 1872/2024
Citation: 2025 Latest Caselaw 2 Del
Coram: Hon’ble Mr. Justice Anup Jairam Bhambhani
Advocate for Petitioner: Adv. Mr. Prashant Mendiratta, Adv. Ms. Somyashree, Adv. Mr. Samar Pratap Singh and Adv. Ms. Neha Jain
Advocate for Respondent: Mr. Tarang Srivastava, APP for the State with Insp. Manoj Dahiya, AHTU/Crime Branch. Mr. Amit Tiwari, CGSC with Mr. Rahul Bhaskar, Mr. Chetanya Puri, Advocates for FRRO with Insp. Shashank Tirpathi, Legal Cell, FRRO, Delhi
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