Recently, the Kerala High Court drew a clear boundary around the power of criminal courts while granting bail, holding that release on bail cannot be diluted into continued custody merely because the accused is a foreign national. Striking down a condition that compelled the accused to remain in a transit home despite being granted default bail, the Court warned against judicial overreach, observing that “directions to remain in the detention centre/transit home while granting bail… would amount to keeping the accused in some kind of confinement even after he is released on bail.”
Brief Facts:
The case arose from a criminal prosecution alleging document forgery, impersonation, and an attempt to exit India using a fraudulently obtained Indian passport. The petitioner, a Bangladeshi national, was charged under Section 465, Section 468, Section 471, and Section 419 read with Section 34 of the Indian Penal Code, 1860, Section 14(a) of the Foreigners Act, 1946, and Section 12(1A) and Section 12(1)(b) of the Passport Act, 1967. Owing to the prosecution’s failure to complete the investigation within the prescribed period, the petitioner was granted default bail under Section 167(2) of the Code of Criminal Procedure, 1973. However, the bail order imposed conditions requiring him to remain in a transit home under civil authority supervision for the duration of the trial, prompting the petitioner to approach the High Court on the ground that the conditions effectively continued his confinement.
Contentions of the Petitioner:
The petitioner argued that the impugned bail conditions defeated the very purpose of default bail and resulted in continued and indefinite detention. It was contended that such confinement violated Article 21 of the Constitution, which guarantees the right to life and personal liberty to all persons, including foreign nationals. The petitioner further submitted that the Foreigners Order, 1948, empowers only Civil Authorities to impose restrictions on foreigners and that such powers cannot be exercised by a Magistrate under the guise of bail conditions.
Contentions of the Respondent:
The State and the Foreigners Regional Registration Officer opposed the plea, contending that relaxing the conditions could enable the petitioner to procure forged Indian documents under a different identity or evade trial. It was argued that Article 19 of the Constitution does not extend to foreign nationals, and therefore, the Magistrate was justified in imposing movement restrictions to safeguard public interest and prevent further offences.
Observation of the Court:
The Court examined the scope of bail conditions under Section 437 and Section 167(2) of the CrPC, emphasising that bail is neither punitive nor preventive. The Court reiterated that while conditions may be imposed in the interest of justice, such conditions must not be arbitrary, fanciful, or destructive of the very right they seek to regulate.
The Court observed that, “The right to be enlarged on statutory bail under Section 167(2) of Cr.P.C. is a fundamental right and not merely a statutory right. The said right flows from Article 21 of the Constitution of India and is an indefeasible part of the right to personal liberty. The court cannot frustrate or defeat this right of the accused through unreasonable conditions. Though while granting bail, the Court can impose conditions in the interest of justice, restricting the exercise of fundamental rights of an accused under the cover of such a condition is not legally sustainable.”
The Bench ruled that “The power vested with the Civil Authority under the Foreigners Order, 1948, to impose restrictions on the movement of a foreigner cannot be imported to sub-clause (3) of Section 437 of Cr.PC, nor be incorporated as a condition while granting bail to a foreign national.”
Further, the Court observed that “Directions to remain in the detention centre/transit home while granting bail to a foreign national would amount to keeping the accused in some kind of confinement even after he is released on bail… Such a condition is violative of the fundamental right guaranteed under Article 21 of the Constitution, which is available not only to Indian citizens but to foreign nationals as well.”
The Court noted that converting a bail order into a detention directive under the Foreigners Order amounted to judicial excess beyond statutory authority.
The decision of the Court:
In light of the foregoing discussion, the Court quashed the impugned bail conditions, directing the petitioner to remain in a transit home, holding that such confinement-oriented conditions are legally unsustainable. The writ petition was accordingly disposed of, with a direction to the Foreigners Regional Registration Officer to pass appropriate orders in accordance with law after affording the petitioner an opportunity of hearing.
Case Title: Apple Barua v. State of Kerala & Anr.
Case No.: WP(CRL.) NO. 795 OF 2025
Coram: Hon’ble Mr. Justice Dr. Kauser Edappagath
Advocate for the Petitioner: Adv Kum.Niharika Hema Raj
Advocate for the Respondent: DSG O.M.Shalina, CGC Krishna S., PP Sangeetha Raj
Read Judgment @Latestlaws.com
Picture Source : https://commons.wikimedia.org/wiki/File:Kerala_New_High_Court.jpg