Kerala High Court
Manju Saud vs Union Of India on 16 June, 2025
WP(Crl.) No.1353 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 16TH DAY OF JUNE 2025/26TH JYAISHTA, 1947
WP(CRL.) NO. 1353 OF 2024
CRIME NO.777/2024 OF KALPETTA POLICE STATION, WAYANAD
PETITIONERS:
1 MANJU SAUD, AGED 38 YEARS, W/O.AMAR SAUD,
6TH WARD, BHUMIRAJA,
NAPA PURCHADI MUNICIPALITY, VAITADI DISTRICT,
NEPAL, CURRENTLY DETAINED AT SHELTER HOME,
SHANTHI NAGAR ARATTUTHARA (P.O), MANANTHAVADY,
WAYANAD - 670645,
REPRESENTED BY HER NEXT FRIEND MR.KRISHNAKUMAR,
AGED 43, S/O.CHANDRAN, THONIPARAMBIL (H),
NELLARACHAL (P.O) SULTHAN BATHERY,
WAYANAD, PIN - 673593.
2 AMAR BAHADUR SAUD, AGED 45 YEARS,
S/O.JAGI SAUD, 6TH WARD BHUMIRAJA,
NAPA PURCHADI MUNICIPALITY, VAITADI DISTRICT,
NEPAL CURRENTLY DETAINED AT TRANSIT HOME,
KOTTIYAM, KOLLAM - 691020,
REPRESENTED BY HIS NEXT FRIEND MR.KRISHNAKUMAR
AGED 43, S/O.CHANDRAN, THONIPARAMBIL (H),
NELLARACHAL (P.O) SULTHAN BATHERY,
WAYANAD, PIN - 673593
3 ROSHAN SAUD, AGED 22 YEARS, S/O AMAR SAUD,
6TH WARD BHUMIRAJA, NAPA PURCHADI MUNICIPALITY,
VAITADI DISTRICT, NEPAL,
CURRENTLY DETAINED AT TRANSIT HOME, KOTTIYAM
KOLLAM - 691020,
WP(Crl.) No.1353 of 2024
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REPRESENTED BY HIS NEXT FRIEND MR.KRISHNAKUMAR
AGED 43, S/O.CHANDRAN, THONIPARAMBIL (H),
NELLARACHAL (P.O) SULTHAN BATHERY,
WAYANAD, PIN - 673593.
BY ADVS.
SRI.PRANOY K.KOTTARAM
SRI.SIVARAMAN P.L
RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY SECRETARY,
THE MINISTRY OF HOME AFFAIRS, NORTH BLOCK,
CENTRAL SECRETARIATE, NEW DELHI, PIN - 110001.
2 THE FOREIGNERS REGIONAL REGISTRATION OFFICER
(FRRO), OFFICE OF THE FRRO, 6TH FLOOR,
NIKARTHIL CHAMBERS,
NEAR BABY MEMORIAL HOSPITAL,
MINI BYPASS ROAD, CALICUT, PIN - 673004.
3 STATE OF KERALA, REPRESENTED BY SECRETARY,
HOME DEPARTMENT SECRETARIATE,
THIRUVANANTHAPURAM, PIN - 695001.
BY ADVS.
SRI.SUVIN R.MENON, CENTRAL GOVERNMENT COUNSEL
SRI.P.NARAYANAN,
SPECIAL GOVERNMENT PLEADER TO DGP AND ADDITIONAL
PUBLIC PROSECUTOR
SRI.JACOB P.ALEX, AMICUS CURIAE
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 10.04.2025, THE COURT ON 16.06.2025,
DELIVERED THE FOLLOWING:
WP(Crl.) No.1353 of 2024
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'C.R'
JUDGMENT
"Bondage - though in a golden cage - remains bondage"
The question involved in this Writ Petition centers
around the personal liberty of a foreigner, who is
alleged to have committed a crime in India. The question
has to be addressed in the context of orders passed under
the Foreigners Act, 1946 imposing restriction on the
movement of the petitioners, dehors bail having been
granted in their favour in the crime in question.
2. Brief facts:
The petitioners are Nepali citizens, who were working as
cleaning and house keeping staff in a resort at Kalpetta
from May, 2024 onwards. Citizens of Nepal can enter India
without any visa, by virtue of Article 7 of the Treaty of
Peace and Friendship between the Government of India and
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Government of Nepal, 1950. A crime was registered against
petitioners vide Ext.P1 F.I.R on 21.09.2024, alleging
that the 1st accused (1st petitioner herein) committed
murder of a new born baby by strangulation. Accused nos.2
and 3 (petitioners 2 and 3 herein) acted in aid of the
1st accused in committing the crime. The offences alleged
are under Sections 302, 316, 318, 201, 313, 511 and 34 of
the Penal Code. The petitioners were arrested on
21.09.2024 and were enlarged on bail, as per Ext.P2 Order
dated 08.11.2024. One among the conditions for grant of
bail was that the sureties should be Keralites and
another condition imposed restriction on the petitioners
in leaving the State of Kerala, except with the
permission of the trial court. The third condition
warrants the petitioners to surrender their passports
before the jurisdictional court. While so, Exts.P3, P4
and P5 Orders were issued on petitioners 1, 2 and 3
respectively by the 2nd respondent Foreigners
Regional Registration Officer ('F.R.R.O', for short)
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under Section 3(2)(e)(ii) of the Foreigners Act and
Clause 11(2) of the Foreigners Order, 1948 imposing
restriction on the movement of the petitioners by
confining them in a transit home. Exts.P3 to P5 are under
challenge.
3. Having regard to the significance and complexity of
the issues involved in this Writ Petition, this Court
appointed Sri. Jacob P.Alex, as Amicus Curiae.
4. Heard the learned Amicus; Sri. Pranoy K.Kottaram,
learned counsel for the petitioners; Sri. Suvin.R.Menon,
learned Central Government Counsel for respondents
1 and 2; and Sri. P.Narayanan, learned Special Government
Pleader to D.G.P and Additional Public Prosecutor for the
3rd respondent State. Perused the records.
5. Arguments advanced by the petitioners:
Learned counsel for the petitioners submitted that
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Exts.P3, P4 and P5 Orders are illegal and arbitrary,
since petitioners have already been enlarged on bail, for
which reason, their movement in India cannot be
restricted at all. Necessary conditions to safeguard the
presence of the petitioners for the purpose of trial are
engrafted in Ext.P2 bail order, which obviates the
necessity for further orders like Exts.P3 to P5, avowedly
for ensuring the presence of the petitioners for the
trial. Learned counsel would submit that the petitioners
have been deprived of their livelihood, as also, the
benefit of bail order, inasmuch as they are virtually
incarcerated in the transit home. Learned counsel would
point out that there is no violation, whatsoever, of the
Foreigners Act or the Foreigners Order, justifying
issuance of Exts.P3 to P5 in terms of the said Act and
Order. One important point highlighted by the learned
counsel for the petitioners is the failure on the part of
the respondents 1 and 2 in not affording an opportunity
of being heard to the petitioners before passing
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Exts.P3 to P5 Orders. Such right is all the more
important, inasmuch as Exts.P3 to P5 Orders substantially
infringed the personal liberty of the petitioners.
According to the learned counsel, Exts.P3 to P5 Orders
are unfair and arbitrary, besides being violative of
Article 21, the protection of which is available to 'any
person'; and not confined to the citizens of India. On
law, it was argued that, even if the power under the
Foreigners Act is taken as absolute, the procedure
adopted should not be arbitrary, unfair and oppressive.
In this regard, the learned counsel relied upon the
judgment of the Hon'ble Supreme Court in Hans Muller of
Nurenberg v. Superintendent, Presidency Jail, Calcutta
and Others [AIR 1955 SC 367] and A.K.Gopalan v. State of
Madras [AIR 1950 SC 27]. Relying on the judgment of the
High Court of Delhi in Emechere Maduabuchkwu v. State NCT
of Delhi and Another [2023:DHC:3872], it was argued that
an opportunity of being heard ought to have been
given, especially when 2nd respondent/F.R.R.O is a Civil
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Authority. Relying on Maneka Gandhi v. Union of India and
Another [(1978) 1 SCC 248], it was argued that, when the
action to be taken is punitive, an opportunity of hearing
should have been granted, even in the absence of an
enabling provision. It was emphasised that the Orders in
question were not issued for any reason in connection
with national security, but only to ensure the presence
of the petitioners for trial. The Treaty of Peace and
Friendship between Nepal and India was also highlighted
to contend that Exts.P3 to P5 Orders were against the
spirit of the same.
6. Arguments advanced by respondents 1 and 2:
The primary point highlighted by the learned Central
Government Counsel is the absence of fundamental right
for a foreign citizen to travel across India,
unrestrictedly. The rights in terms of Article 19(1)(d)
is confined to citizens of India; and not available to a
foreigner, as held by the Hon'ble Supreme Court in
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Hans Muller of Nurenberg (supra). Secondly, it was
contended that the power of the 2 nd respondent, a Civil
Authority, to pass orders in terms of Section 3 of the
Foreigners Act, is wholly and completely independent of
the power to grant bail, wherefore, Ext.P2 Order granting
bail cannot stand in the way of issuance of Exts.P3 to P5
Orders. Reliance in this regard was placed on a recent
judgment of the Hon'ble Supreme Court in Frank Vitus v.
Narcotics Control Bureau and Others [(2025) 3 SCC 1]. On
the issue of audi alteram partem, it is the submission of
the learned Central Government Counsel that the
Foreigners Act does not contemplate any such
opportunity/right. It was coined that the rules of
natural justice can be excluded expressly or by
implication, as held by the Hon'ble supreme Court in
Haradhan Saha and Another v. The State of West Bengal and
Others [AIR 1974 SC 2154]. In the instant case, the
conspicuous absence of a provision for hearing before
issuance of Orders under section 3 of the Foreigners Act
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is a clear indication of an implied exclusion of the
rules of natural justice, if not express. Learned counsel
relied upon the observations of the Hon'ble Supreme Court
in Maneka Gandhi (supra) in this regard. Secondly, it was
pointed out that, if an opportunity of being heard is
granted, the same will defeat the purpose of the special
law, the Foreigners Act. Incidently, it was pointed out
that there is no challenge, whatsoever, to any of the
provisions of the Foreigners Act. It was highlighted that
an Order under Section 3, in many a situation, is
necessitated to ensure the security of the State, in
which case, it would be impracticable, besides
frustrating the purpose, to grant an opportunity of being
heard. It was finally argued that the Orders under
Section 3 are based on the subjective satisfaction of the
Authority, which is not amenable to judicial review.
7. Arguments advanced by the learned Amicus:-
Learned Amicus had elaborately taken this Court to the
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concepts and issues involved, as also, the binding
precedents on the point. The first submission is with
respect to the nature of power under the Foreigners Act,
1946, which is 'absolute and unlimited' as held in Hans
Muller of Nurenberg (supra). The Supreme Court also held
that the procedure in terms of the Foreigners Act is
fair, just and reasonable. It was highlighted by the
learned Amicus that the language by the Hon'ble Supreme
Court in that case is that, there is an unfettered right
conferred to the Union Government as per the Foreigners
Act to expel a foreign citizen. The proposition that the
power of the Government to expel a foreigner is absolute
and unlimited has been reiterated in Louis De Raedt and
Others v. Union of India and Others [(1991) 3 SCC 554].
The proposition that the procedure under the Foreigners
Act is just, fair and reasonable has been reiterated in
Sarbananda Sonowal (II) v. Union of India [(2007) 1
SCC 174]. The second submission made by the learned
Amicus is one endorsing the submission made by the
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learned Central Government Counsel that the Order issued
under Section 3(2)(e)(ii) of the Foreigners Act read
with, clause 11(2) of the Foreigners Order is independent
and different from Orders issued as per the Penal
statutes. Such Orders, which restricts movement of a
foreigner does not amount to arrest or detention. Support
in this regard is drawn from a Full Bench decision of the
Madras High Court in (i) Sree Latha v. The Secretary to
Government, Public (SC) Department and Others
[MANU/TN/2614/2007]; another judgment of the Madras High
Court in (ii) Momin @ Momimwar Hussain @ Md.Monwar
Hossain v. State and Others [MANU/TN/1357/2019];
(iii) Toichubek Uulu Bakytbek v. The State of Karnataka
[MANU/KA/3091/2020]; (iv) Anwara Begum v. The State of
Telengana [(2022) 09 TEL CK 0043] (v) Aizaz Kilicheva v.
State NCT of Delhi [2025 SCC OnLine Del 216];
(vi) Innocent Amaeme Maduabuchukwi and Others v. State of
Goa and Others [MANU/MH/0729/2020]; and finally on
(vii) Frank Vitus (supra) of the Hon'ble Supreme Court.
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Relying on the dictum held in these decisions, it is
the submission of the learned Amicus that movement
restriction under Section 3(2)(e)(ii) of the Foreigners
Act is different from arrest/detention contemplated under
Section 3(2)(g) of the said Act; that an Order under
Section 3(2)(e) is not a punishment and that the powers
under the Foreigners Act is independent and separate.
Learned Amicus Curiae invited the attention of this Court
to the differentiation of the terms employed in
Sections 4(1) and 4(2), the former being "internee" and
the latter, "person in parol". The third proposition
canvassed by the learned Amicus is that the detention
centres/transit homes are established to restrict
movement of the foreigners in terms of Section 3(2)(e) of
the Foreigners Act. Learned Amicus had produced various
documents, which led to the setting up of a transit home
in Kerala, inclusive of the decision of this Court in
Madukoluchibuzor Samson and Another v. State of Kerala
and Others [Crl.M.C.No.5300 of 2020]. Thus, according to
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the learned Amicus, Exts.P3 to P5 Orders cannot be said
to be illegal or without any authority. On the question
of audi alteram partem before passing an Order under
Section 3, learned Amicus pointed out one judgment of the
Hon'ble Supreme Court in Hasan Ali Raihany v. Union of
India and Others [(2006) 3 SCC 705], which afforded a
limited right of hearing.
8. Analysis of the issue:-
Having heard the learned counsel for the respective
parties, as also, the learned Amicus Curiae, the
sole issue, which falls for consideration, centers
around the question of audi alteram partem before
passing an Order under Section 3 of the Foreigners Act,
for, other propositions with respect to the independent
nature and character of an Order under Section 3; that it
does not amount to an arrest or detention etc., are too
well settled. As pointed out by the learned Central
Government Counsel, the issue is seen nailed by the
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Hon'ble Supreme Court in Frank Vitus (supra), by holding
that a foreigner, upon being released on bail, is not
entitled to leave India, without the permission of the
Civil Authority, as provided in clause (5) of the
Foreigners Order, 1948. As per clause 5(1)(b) of the
Order, a foreigner cannot leave India without the leave
of the Civil Authority and such leave is liable to be
refused as per Section 5(2)(b), if the foreigner's
presence is required in India to answer a criminal
charge. Frank Vitus (supra) held that the power to impose
movement restriction under Section 3 of the Foreigners
Act is wholly independent of the power to grant bail; and
that notwithstanding grant of bail, the power to arrest
and detain a foreigner can be exercised, if the Central
Government makes an Order in terms of Section 3(2)(g) of
the Foreigners Act. In Frank Vitus (supra), the Supreme
Court held that the Investigating Agency or the State, as
the case may be, shall immediately inform the concerned
Registration Officer about the grant of bail, so as to
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enable him to bring that fact to the notice of the Civil
Authority under the Foreigners Act. Therefore, the
contention of the petitioners that Exts.P3 to P5 Orders
are bad and illegal, inasmuch as adequate conditions have
already been incorporated in Ext.P2 bail order, will
crumble to the ground. In the light of the enabling
provision of clause 5(2)(b) of the Foreigners Order,
1948, the same is the fate of the petitioners' contention
that they have been deprived of the benefit of the bail
order. Exts.P3 to P5 cannot, therefore, be held to be
illegal on those counts.
9. Now, coming to Section 3 of the Foreigners Act, this
Court notice that the powers have been couched in the
most expansive language possible. The power can be
exercised either generally; or with respect to all
foreigners; or with respect to any particular foreigner;
or any prescribed class or description of foreigners.
Again, the power under Section 3 can be exercised for
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(i) prohibiting (ii) regulating (iii) restricting the
entry of foreigners into India or their departure
therefrom; or their presence or continued presence
therein. It is without prejudice to the generality of the
sweeping powers under Section 3(1) that the specific
powers are seen engrafted in Section 3(2). Section 3(2)
(e) is extracted here below:
"3. Power to make orders.--(1) The Central
Government may, by Order, make provision, either
generally or with respect to all foreigners or
with respect to any particular foreigner or any
prescribed class or description of foreigner, for
prohibiting, regulating or restricting the entry
of foreigners into India, or their departure
therefrom or their presence or continued presence
therein.
(2) In particular and without prejudice to
the generality of the foregoing powers,
orders made under this section may provide
that the foreigner--
(a) xxxx
(b) xxxx
(c) xxxx
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(d) xxxx
(e) shall comply with such conditions as
may be prescribed or specified--
(i) requiring him to reside in a
particular place;
(ii) imposing any restrictions on his
movements;
(iii) requiring him to furnish such
proof of his identity and to report
such particulars to such authority in
such manner and at such time and place
as may be prescribed or specified;
(iv) requiring him to allow his
photograph and finger impressions to
be taken and to furnish specimens of
his handwriting and signature to such
authority and at such time and place
as may be prescribed or specified;
(v) requiring him to submit himself
to such medical examination by such
authority and at such time and place
as may be prescribed or specified;
(vi) prohibiting him from association
with persons of a prescribed or
specified description;
(vii) prohibiting him from engaging in
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activities of a prescribed or
specified description;
(viii) prohibiting him from using or
possessing prescribed or specified
articles;
(ix) otherwise regulating his conduct
in any such particular as may be
prescribed or specified;"
10. Of the above, what has been pressed into service in
the instant facts is the power of imposing restriction in
movement, as envisaged in Section 3(2)(e)(ii).
Interpreting the powers of the Foreigners Act, a
Constitution Bench of the Hon'ble Supreme Court in Hans
Muller of Nurenberg (supra), authored by Vivian Bose, J.
held in paragraph 35 that the Foreigners Act confers
power on the Central Government to expel foreigners from
India with absolute and unfettered discretion and
therefore the power is unrestricted. The proposition as
regards the absolute and unfettered power of the Central
Government in this regard is seen reiterated in
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paragraph nos.39 and 40. Hans Muller of Nurenberg (supra)
has been quoted with approval in Louis De Raedt (supra).
The proposition in Hans Muller of Nurenberg (supra) that
the procedure in the Foreigners Act is fair, just and
reasonable is quoted with approval in Sarbananda
Sonowal (II) (supra).
11. In the light of the above legal position, there
cannot be any dearth of power for the 2 nd respondent
F.R.R.O to issue Exts.P3 to P5 Orders. The challenge in
this regard is liable to be repelled straight away.
12. Now, the remaining question - as indicated earlier -
is only with respect to the right of audi alteram partem
before passing such orders under Section 3. On the first
blush, a court of law cannot sideline the arguments of
the Central Government Counsel that there is no enabling
provision in the Foreigners Act affording a right of
hearing; and that the right of hearing, if afforded, may
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perhaps defeat the purpose of the special law, besides
prejudicing the security of the State and larger public
interest. Learned Central Government Counsel relies on
the doctrine of exclusion of natural justice, by
implication. Despite the statute makers being aware of
the deleterious impact on a foreign citizen when Order
under Section 3 is passed, the omission to grant an
opportunity of being heard can only be conscious and
cannot be inadvertent, is a possible argument. The
concept of exclusion of the rules of natural justice by
implication is well settled, as held in Maneka Gandhi
(supra), the relevant findings of which are extracted
here below:
"in A.S.de Smith, Judicial Review of
Administrative Action, 2nd ed., where the
learned author says at page 174 that "in
administrative law, a prima facie right to
prior notice and opportunity to be heard may
be held to be excluded by implication-where an
obligation to give notice and opportunity to
be heard would obstruct the taking of prompt
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action, especially action of a preventive or
remedial nature". Now, it is true that since
the right to prior notice and opportunity of
hearing arises only by implication from the
duty to act fairly, or to use the words of
Lord Morris of Borth-y-Gest, from 'fair play
in action, it may equally be excluded where,
having regard to the nature of the action to
be taken, its object and purpose and the
scheme of the relevant statutory provision,
fairness in action does not demand its
implication and even warrants its exclusion.
There are certain well recognised exceptions
to the audi alteram partem rule established by
judicial decisions and they are summarised by
S.A. de Smith in Judicial Review of
Administrative Action, 2nd ed., at page 168 to
179. If we analyse these exceptions a little
closely, it will be apparent that they do not
in any way militate against the principle
which requires fair play in administrative
action. The word 'exception' is really a
misnomer because in these exclusionary cases
the audi alteram partem rule is held
inapplicable, not by way of an exception to
"fair play in action", but because nothing
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unfair can be inferred by not affording an
opportunity to present or meet a case. The
audi alteram partem rule is intended to inject
justice into the law and it cannot be applied
to defeat the ends of justice, or to make the
law 'lifeless, absurd, stultifying, self-
defeating or plainly contrary to the common
sense of the situation'. Since the life of the
law is not logic but experience and every
legal proposition must, in the ultimate
analysis, be tested on the touchstone of
pragmatic realism, the audi alteram partem
rule would, by the experiential test, be
excluded, if importing the right to be heard
has the effect of paralysing the
administrative process or the need for
promptitude or the urgency of the situation so
demands."
13. However, it would equally be a possible argument
that, if the statute makers specifically wanted to
exclude the rules of natural justice, the same would have
been expressly incorporated, so as to avoid any doubt or
confusion in this regard, which obviously, has not been
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done in the Foreigners Act, especially at Section 3.
Therefore, a hearing before the issuance of such an Order
- at least, immediately after such Orders in cases, where
it is not practicable to afford a pre-decisional hearing
- cannot be considered as a concept completely alien to
Orders of the nature referred to in Section 3 of the
Foreigners Act.
14. Having bestowed my attention, I am of the definite
view that the question as to whether rules of natural
justice stands excluded or not would essentially depend
upon the nature of the Order to be passed; and the
circumstances, in which it is made. In cases where,
the interest of the State or public is not
sacrificed/jeopardised, or where the purpose of the
special statute is not being defeated by affording an
opportunity of being heard, it is only logical - besides
being in consonance with the settled principles of law -
to vote for an opportunity being granted, especially when
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such Orders are to visit the foreign citizen with serious
and dire consequences. Per contra, if the issuance of
such notice for hearing would either defeat the purpose
of the special statute or would jeopardise the interest
of State or public, an exclusion of the rules of natural
justice should be readily interfered. Say for example, if
the concerned authority is in receipt of an information
that a foreign national has entered India, though
legally, for an unlawful purpose, deleterious to national
interest and that it is impracticable to afford him a
hearing, for, that may defeat or render infructuous the
proposed Order under Section 3, Orders may have to be
passed instinctively or instantaneously, depending upon
the gravity of the situation. However, in cases of Orders
like Exts.P3 to P5, affording an opportunity of being
heard would not defeat the purpose of the Orders proposed
to be passed. Nor would it jeopardise the State/National
interest. In such cases, an opportunity ought to have
been granted. Such a right necessarily flows from
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Article 21 of the Constitution, since an Order under
Section 3 restricting the movement of a foreign citizen -
which in fact confines him to a transit home, a euphoric
expression to a place of incarceration - definitely
deprives him of his personal liberty. Bondage, though in
a golden cage, remains bondage. If the authority is of
the opinion that issuance of notice will pave the way for
foreigners like the petitioners to escape from the
clutches of law, this Court is, again, of the opinion
that a provisional order can be passed, so as to ensure
their availability by restricting their movement, and
then afford an opportunity of being heard, which
procedure will always be in tandem with the requirements
of fairness and non-arbitrariness. As rightly contended
by the learned counsel for the petitioners, an
opportunity of hearing will enable them to point out a
less onerous course, alternate to Section 3(2)(e)(ii),
but which is recognised by the provisions of the
Foreigners Act.
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15. The Hon'ble Supreme Court has almost recognised such
right of a foreign citizen in Hasan Ali Raihany (supra).
In that case, the residence visa permitted to the
petitioner was cancelled and he was sought to be deported
to Tehran. The issue before the Hon'ble Supreme Court as
could be seen from paragraph no.6 is whether the
authorities are obliged to disclose to the petitioner the
reasons for his proposed deportation. In paragraph no.7,
the Supreme Court took stock of the fact that the
petitioner, though not an Indian citizen, has entered the
territory of India, on the basis of a valid visa - and
not stealthily with any ulterior motive - and therefore
he should at least be informed of the reasons, why he is
sought to be deported. The Hon'ble Supreme Court relied
on its earlier judgment in Sarbananda Sonowal v. Union of
India [(2005) 5 SCC 665]. The following observations were
extracted from Sarbananda Sonowal (supra):
"Like the power to refuse admission this is
regarded as an incident of the State's
territorial sovereignty. International law
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does not prohibit the expulsion enmasse of
aliens. (page 351). Reference has also been
made to Article 13 of the International
Covenant of 1966 on Civil and Political Rights
which provides that an alien lawfully in the
territory of a State party to the Covenant may
be expelled only pursuant to a decision
reached by law, and except where compelling
reasons of national security otherwise
require, is to be allowed to submit the
reasons against his expulsion and to have his
case reviewed by and to be represented for the
purpose before the competent authority. It is
important to note that this Covenant of 1966
would apply provided an alien is lawfully in
India, namely, with valid passport, visa etc.
and not to those who have entered illegally or
unlawfully."
16. Relying upon the above observations, the Hon'ble
Supreme Court held in paragraph no.8 in Hasan Ali Raihany
(supra) that it is only fair that the competent authority
informed the petitioner, the reasons for his deportation.
The Hon'ble Supreme Court went on to hold that the
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petitioner must be given an opportunity to submit his
representation against his proposed expulsion, which the
competent authority has to consider and pass appropriate
orders. The Hon'ble Supreme Court also took exception to
the said procedure laid down, by holding that the same
can be departed from for compelling reasons of national
security etc., simultaneous with the finding that no such
reason exists in the given facts before it .
17. Coming to the facts at hand, this Court notice that
the petitioners have allegedly involved in a heinous
crime involving offence under section 302 of the Penal
Code and as per Section 5(1)(b) of the Foreigners Order,
they cannot be permitted to leave the State, without the
leave of the Civil Authority, since their presence is
required in India to answer a criminal charge. If that be
so, affording an opportunity of being heard may be an
empty formality, is a possible argument. Two fold answer
emerges to that argument. Firstly, as pointed out
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earlier, the petitioners may be able to point out some
other provision, which is recognised by the Foreigners
Act, but of a less onerous or cumbersome nature.
Secondly, it is now settled by the principles of
administrative law that an opportunity of being heard
cannot be deprived for the reason that such
pre-decisional hearing cannot impact the post hearing
decision.
18. In this regard, it is profitable to refer to the
following excerpts from the celebrated treatise of
Administrative Law by H.W.R Wade & C.F.Forsyth
(9th edition) at page no.554:
"Lord Denning suggested that a hearing should at
least be required before a deportation order is
executed [R. v. Brixton Prison Governor ex p.
Soblen [1963] 2 QB 243. This was done in Pagliara
v. Attorney-General [1974] 1 NZLR 86 and in
Cesnovic v. Minister of Immigration (1979) 27 ALR
423]. The Court of Appeal of New Zealand has held,
without mention of the case of 1920, that the
principles of natural justice must be observed in
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the statutory procedure for deporting an over-
stayed immigrant [Daganayasi v. Minister of
Immigration [1980] 2 NZLR 130 (minister's decision
invalidated for failure to disclose medical
referee's report)]. The judgment of Cooke J firmly
puts the subject into the general context of
procedural fairness, instead of treating it in
isolation - a lead which the High Court of
Australia has followed in holding that an
immigrant threatened with deportation on personal
grounds is entitled to a fair opportunity to
contest them as a matter of natural justice [Kioa
v. Minister for Immigration (1985) 62 ALR 321
(deportation order quashed for breach of natural
justice; previous decisions not followed). See
likewise Waniewska v. Minister for Immigration
(1986) 70 ALR 284; Minister for Immigration v.
Taveli (1990) 94 ALR 177]. The Privy Council
quashed a deportation order where an official
undertaking gave rise to a legitimate expectation
of a fair hearing, but they assumed, without
deciding, that in the absence of such an
undertaking there would be no right to be heard
[Attorney-General of Hong Kong v. Ng Yuen Shiu
[1983] 2 AC 629; above, p. 500. See similarly
Haoucher v. Minister for Immigration (1990) 93 ALR
51 (minister's policy statement raised legitimate
expectation)]. The High Court also quashed the
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Home Secretary's decisions refusing political
asylum to immigrants who had not been given a fair
opportunity to put forward their claims [R. v.
Home Secretary ex p. Thirukumar [1989] COD 384;
affirmed [1989] Imm AR 270 (CA)].
It may be necessary to distinguish illegal
immigrants from aliens lawfully in this country
who are ordered to be deported on account of
overstaying, criminal offences or other
misconduct. It may be justifiable for an illegal
entrant's exit to be as unceremonious as his
entry, subject to his right to claim asylum and to
judicial review of the illegality of his entry."
19. Legal considerations apart, this Court also takes
into account the present international scenario, wherein
trade and commerce have been made very liberal between
the countries, thus necessitating frequent visits of
foreigners into this country, and vice versa. That apart,
cross country tourism is in its peak and the same
constitutes substantial revenue for the States. In this
scenario, it is time that we start recognising certain
minimal rights of the foreign citizens, since we are
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bound to think from their shoes as well. This should
precisely be the reason for extending the protection of
Article 21 to all 'persons'; and not confined to the
Indian citizens, as in the case of many other Articles.
We may have to construe that the founding fathers of our
Constitution have recognised, in their farsighted vision,
scenarios like the present one to include a larger genus,
insofar as protection under Article 21 is concerned. In
recognising rights to foreign citizens within the sweep
of Article 21, all what this Court mean and contemplate
is only those rights, which will not cause any sort of
fetter or threat to the security of the State, the larger
national interest or even public interest. If an order
under Section 3 is necessitated in a situation and
circumstance, which will not jeopardise such national
interest, an opportunity of being heard should
necessarily be conceded within the sweep of Article 21,
is the conclusion surfacing from the above discussion.
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20. In the light of the above discussion, this Court can
only hold that Exts.P3 to P5 Orders are illegal for want
of affording an opportunity of being heard to the
petitioners. Compliance to natural justice being a
fundamental facet will vitiate an Order for its non-
compliance. Exts.P3 to P5 Orders are thus declared
illegal. However, for that reason, this Court is not
directing the release of the petitioners from the transit
home, since the same may provide room for the petitioners
to escape from the clutches of Indian law, as regards a
person, who has to answer a criminal charge in this
country. This Court, therefore, in exercise of its powers
under Article 226, direct continuance of the petitioners
in the transit home for a period of one more month,
within which, the 2nd respondent F.R.R.O will pass fresh
orders under Section 3 of the Foreigners Act, read with
the appropriate order of the Foreigners Order, 1948,
after affording an opportunity of being heard to the
petitioners.
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21. My whole-hearted appreciation to Sri.Jacob P.Alex,
the learned Amicus, who unfurled the convoluted issues of
law in an effulgent manner, is recorded. I also
acknowledge the learned counsel who argued the matter on
both sides, appreciably.
22. In the circumstances, this Writ Petition is allowed
as indicated above.
(i) Exts.P3 to P5 are held illegal.
(ii) The petitioners will remain in the transit home
for a period of one more month, within which time,
the F.R.R.O shall hear the petitioners and then,
pass fresh orders under Section 3 of the Foreigners
Act, read with, Foreigners Order, 1948, in
accordance with law. Needless to say that, this
exercise shall be completed within a period of one
month from the date of receipt of a copy of this
judgment, until which time, the petitioners will
remain confined to the transit home.
Sd/-
C.JAYACHANDRAN, JUDGE
ww
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APPENDIX OF WP(CRL.) 1353/2024
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE FIR DATED 21.09.2024
REGISTERED AS CRIME NO.777/2024 OF
KALPETTA POLICE STATION, WAYANAD.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 08-
11-2024 IN CRL.M.C NO.780/2024 GRANTING
BAIL TO THE PETITIONERS BY THE COURT OF
SESSIONS JUDGE KALPETTA.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 09.11.2024
ISSUED BY THE 2ND RESPONDENT AGAINST
THE FIRST PETITIONER.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 08.11.2024
ISSUED BY THE 2ND RESPONDENT AGAINST THE
SECOND PETITIONER.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 08.11.2024
ISSUED BY 2ND RESPONDENT AGAINST THE 3RD
PETITIONER.
EXHIBIT P6 TRUE COPY OF THE GENERAL POLICY
GUIDELINES RELATING TO INDIAN VISA
ISSUED BY THE MINISTRY OF HOME AFFAIRS
AS UPLOADED IN THEIR WEBSITE.
RESPONDENT EXHIBITS
EXHIBIT R2(A) A TRUE COPY OF THE JUDGMENT OF THE
HON'BLE HIGH COURT OF DELHI IN BAIL APPL
1872/2024, DATED 21.01.2025
EXHIBIT R2(B) A TRUE COPY OF THE JUDGMENT OF THE
HON'BLE HIGH COURT OF KARNATAKA, IN
CRL.P.NO.6578/2019, DATED 19.05.2020.
