Karnataka High Court
Obinna Jeremiah Okafor vs Foreigners Regional Registration ... on 14 August, 2025
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2025:KHC:31562
WP No. 15380 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO.15380 OF 2025 (GM-PASS)
BETWEEN:
1. OBINNA JEREMIAH OKAFOR S/O MR. OKAFOR GOWDIN
AGED ABOUT 26 YEARS, R/A NO.15, 2ND FLOOR,
3RD CROSS RD, NEW YELAHANKA, BENGALURU-560064.
2. JOHN ADEKWAGH VANDEFAN S/O VANDEFAN WISDOM
AGED ABOUT 25 YEARS, R/A NO.15, 2ND FLOOR,
3RD CROSS RD, NEW YELAHANKA, BENGALURU-560064.
3. CYRIL UDOKA ODIGBO S/O JAMES ODIGBO
AGED ABOUT 21 YEARS, R/A NO.15, 2ND FLOOR,
3RD CROSS RD, NEW YELAHANKA, BENGALURU-560064.
...PETITIONERS
(BY SRI. REMMY C. IGWE, ADVOCATE)
AND:
1. FOREIGNERS REGIONAL REGISTRATION OFFICE (FRRO)
BUREAU OF IMMIGRATION, (BOI), BMTC BUS STAND,
Digitally signed
by VINAYAKA B 5TH FLOOR, 'A' BLOCK, TTMC, BUILDING,
V KENGAL HANUMANTHAIAH RD, SHANTI NAGAR,
Location: High
Court of BENGALURU, BENGALURU-560027.
Karnataka,
Dharwad Bench
2. POLICE INSPECTOR,
R.T. NAGAR POLICE STATION, BENGALURU-560032.
...RESPONDENTS
(BY SRI. H. SHANTHI BHUSHAN, ADVOCATE FOR R1;
SRI. MOHAMMED JAFFAR SHAH, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 R/W 21
OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE
RESPONDENT NO.1 TO RELEASE THESE PETITIONERS FROM
DETENTION AND DIRECT THE RESPONDENT NO.1 TO EXTEND THE
VISA OF PETITIONER NO.1 WITHOUT DELAY, TO ENABLE HIM MOVE
FREELY WITHOUT FEAR OR HARASSMENT & ETC.
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THIS WRIT PETITION PERTAINING TO BENGALURU BENCH
HAVING BEEN HEARD AND RESERVED ON 15.07.2025 AND COMING
ON FOR PRONOUNCEMENT OF ORDER AT DHARWAD BENCH
THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE
FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
CAV ORDER
(PER: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV)
The present writ petition has been filed by three foreign
citizens namely, Mr.Obinna Jeremiah Okafor referred to as
petitioner No.1, John Adekwagh Vandefan referred to as
petitioner No.2 and Mr.Cyril Udoka Odigbo referred to as
petitioner No.3.
Though the petition was filed by three petitioners, third
of whom is Cyril Udoka Odigbo, who during the pendency of
the present proceedings has withdrawn the writ petition, the
petition was disposed off insofar as petitioner no.3 is
concerned on 26.06.2025. Accordingly, the present lis remains
for adjudication as regards petitioner nos.1 and 2.
2. Petitioner Nos.1 and 2 are Nigerian nationals and
have assailed the action of Respondent No.1 in "Refusing to
extend the visa and detaining them as well".
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3. The facts made out are that the petitioner No.1 had
come on a Student Visa to Bangalore which was valid upto
26.04.2025, which admittedly as on the date when the matter
was taken up for hearing was cancelled. Insofar as petitioner
No.2 is concerned, he had come on a Student Visa to pursue
his studies at Karpagam Academy of Higher Education,
Coimbatore, Tamilnadu on 05.11.2024 and in terms of the
information furnished in the counter affidavit, as he had not
registered, his visa is stated to have been cancelled.
4. The petitioners were presented before the
Foreigners Regional Registration Office- Respondent No.1 on
23.12.2024 and an order for movement restriction was passed
on 23.12.2024 in terms of Section 3 (2)(e) of the Foreigners
Act, 1946 (Foreigners Act) read with para 11(2) of the
Foreigners Order, 1948. The petitioners were then referred to
Aasare Foundation Trust, Laggere, Bengaluru with a movement
restriction not to move out of the Aasare Trust. From the facts
and pleadings, it appears that the visa of petitioner Nos.1 and
2 were valid as on the date of the movement restriction order.
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It also appears to be an admitted fact that visa came to be
cancelled only later, after filing of the petition.
5. It is also the specific case of the petitioners in the
reply to the counter affidavit that the procedure of passing a
movement restriction order as well as cancellation of the visa
was done in violation of protection against arbitrary action as
available under article 14 and 21 of the Constitution of India.
It was further contended that the ultimate action which has
adverse consequences on the petitioners insofar as their visa
period stood truncated was passed without adhering to the
principles of natural justice by affording an opportunity of
hearing. It is also contended that the order of 23.12.2024 does
not disclose reasons.
6. It was contended that the subsequent cancellation of
visa was without notice to the petitioners and the defence of
the respondent that cancellation of visa is linked to sovereign
rights is not acceptable and cannot be construed to confer
absolute powers that can be exercised arbitrarily.
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7. Learned Deputy Solicitor General of India
Sri.Shanthi Bhushan on the other hand has contended that the
order of movement restriction is passed under Section 3 of the
Foreigners Act, which cannot be found fault with, as such order
was passed on the basis of inputs received from appropriate
authorities as evidenced at Annexure-R8 with specific inputs
form the Anti-Narcotics Wing and the Central Crime Branch.
It is further contended that the petitioners have not challenged
order canceling their Visa.
8. Heard Sri. Remmy Chibure Igwe, learned counsel
appearing for petitioners, Sri.Shanthi Bhushan, learned Deputy
Solicitor General of India for respondent no.1 and
Sri.Mohammed Jaffer Shah, learned Additional Government
Advocate for respondent no.2.
9. At the outset it must be noticed that as on date,
admittedly, the visa of the petitioner Nos.1 and 2 has been
cancelled as is evidenced from averments at para 8 of the
statement of objections filed by respondent No.1. Insofar as
the subsequent event of cancellation of visa and scope of
judicial review of such action is no more res integra in light of
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the order of the Constitution Bench of the Apex Court in
Hans Muller of Nurenburg v. Supt., Presidency Jail,
Calcutta and Others1 (Hans Muller of Nurenburg). The
relevant observations are as follows:
"34. Article 19 of the Constitution confers
certain fundamental rights of freedom on the
citizens of India, among them, the right "to move
freely throughout the territory of India" and "to
reside and settle in any part of India," subject only
to laws that impose reasonable restrictions on the
exercise of those rights in the interests of the
general public or for the protection of the interests
of any Scheduled Tribe. No corresponding rights
are given to foreigners. All that is guaranteed to
them is protection to life and liberty in accordance
with the laws of the land. This is conferred by
Article 21 which is in the following terms:
"21. Protection of life and personal liberty.--No
person shall be deprived of his life or personal
liberty except according to procedure established
by law."
35. Entries 9, 10, 17, 18 and 19 in the Union
List confer wide powers on the Centre to make laws
(1955) 1 SCC 167.
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about, among other things, admission into and
expulsion from India, about extradition and aliens
and about preventive detention connected with
foreign affairs. Therefore, the right to make laws
about the extradition or aliens and about their
expulsion from the land is expressly conferred;
also, it is to be observed that extradition and
expulsion are contained in separate entries
indicating that though they may overlap in certain
aspects, they are different and distinct subjects.
And that brings us to the Foreigners Act which
deals, among other things, with expulsion, and the
Extradition Act which regulates extradition.
36. The Foreigners Act confers the power to
expel foreigners from India. It vests the Central
Government with absolute and unfettered
discretion and, as there is no provision fettering
this discretion in the Constitution, an unrestricted
right to expel remains.
37. The law of extradition is quite different.
Because of treaty obligations it confers a right on
certain countries (not all) to ask that persons who
are alleged to have committed certain specified
offences on their territories, or who have already
been convicted of those offences by their courts, be
handed over to them in custody for prosecution or
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punishment. But despite that the Government of
India is not bound to comply with the request and
has an absolute and unfettered discretion to
refuse."
10. The petitioners rely on the decision in Kamil
Siedczynski v. Union of India2 ("Kamil", for short) where
the facts are materially different. In the case of Kamil (supra)
the petitioner there held a valid, renewed student visa at the
time of the expulsion order and no penal offence was alleged.
The Calcutta High Court held that the discretion under Section
3 of the Foreigners Act is not unfettered when exercised
against a foreigner with subsisting legal rights, and that such
discretion must comply with constitutional safeguards.
In contrast, in the present case, though a movement
restriction order was passed while the visas were valid, both
visas were subsequently cancelled before final adjudication of
this Court. Once a visa is cancelled, the foreigner loses any
legal right to remain in India, and the State's power to expel
becomes absolute. The right to expel foreigners is held to be
an unfettered right under the provisions of the Foreigners Act
2020 SCC OnLine Cal 670.
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as held by the Apex Court. In such circumstances, even if
there were questions about procedural fairness, they would not
alter the inevitable outcome of cancellation of the visa.
11. It must be noticed that once the power to expel
foreigners is held to be an absolute and unfettered discretion,
the question of entering into correctness of such order is not
open in judicial review in the context of the present facts.
12. It is to be noticed that prior to termination of the
visa, the order of movement restriction under Section 3 of the
Foreigners Act was passed when still the visa was valid. The
contentions raised by the petitioners is by placing reliance on
Article 14 would refer to alleged arbitrary action in passing the
order of movement restriction by reliance on Annexure-R8,
which is the report of the police authorities observing that the
petitioners were involved in desirable activities without
affording an opportunity of hearing.
13. It would not be necessary at this stage to enter
into the correctness of such action as the order of movement
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restriction has now effectively merged with the order of
revocation of visa.
14. If indeed the visa was not terminated, then the
question of procedural fairness under Article 14 perhaps could
still have been looked into. In light of the visa having been
terminated, an enquiry into the procedural lapses if any, at the
stage of passing an order of movement restriction is an
exercise in futility.
15. Insofar as the termination of visa, the argument of
legitimate expectation that the student visa would be valid till
the petitioner completes his course would be impermissible as
such right of legitimate expectation would have to give way to
the right exercised to terminate the visa as recognized by the
Apex Court. Further, the question of procedural fairness which
is insisted upon is an aspect determined by factual context.
16. Taking note of the law laid down by the Apex
Court, the aspect of procedural fairness would by itself not lead
to setting aside the order of termination of visa.
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17. The Coordinate Bench had considered the aspect of
futility of affording an opportunity under certain circumstances
which would be of relevance in the present case. The
observations made in W.P.No.14734/2021 in the order dated
27.01.2025 which are of relevance are extracted herein below:
"32. The legal position as regards vitiation of
an order made in the absence of adherence to
principles of Natural Justice requires reference to
the judgment of the Apex Court in Olga Tellis v.
Bombay Municipal Corporation [Olga Tellis] as well
as the judgment in State of Uttar Pradesh v. Sudhir
Kumar Singh and Others [Sudhir Kumar Singh].
33. While in the case of Olga Tellis (supra), the
Apex Court has laid emphasis on the process of
hearing as a stand alone right violation of which
would vitiate the conclusion. Subsequent
judgments including in Sudhir Kumar Singh
(supra), has clarified that decision would stand
vitiated only if it was established that there was
prejudice and affording such opportunity afresh
would alter the conclusion made.
34. In Sudhir Kumar Singh (supra), it was
opined that the Court would not issue futile writs
and if even after affording an opportunity of
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hearing, the conclusion would be the same, the
question of affording an opportunity of hearing
need not be resorted to."
18. Clearly, in light of the conclusion of the Apex Court
that the power of expulsion being an absolute right of the
State, question of entering into the contention regarding
violation of principles of natural justice would not arise as even
if the order is set aside and opportunity afforded, the
conclusion would not be altered.
19. Accordingly, the petition is dismissed.
Sd/-
(S SUNIL DUTT YADAV)
JUDGE
NP
