Today, the Supreme Court ruled that it is not required to include the Civil Authority or Registration Officer under the Foreigners Act, 1946, in bail applications submitted by foreign nationals.

A bench comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan explained that these authorities do not have the standing to oppose bail applications, unless the offence pertains to Section 14 of the Foreigners Act.

“we do not see any propriety in issuing a direction that either the Civil Authority or the Registration Officer should be made a party to a bail application filed by a foreigner or a notice of the bail application be issued to the said authorities. The reason is that the authorities under the Act and the Order have no locus to oppose bail application filed by a foreigner unless bail is sought where the allegation is of the offence punishable under Section 14 of the Act.''

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”, the Court held.

The Court issued the following directions:

1. When granting bail to a foreigner, the concerned court must direct the investigating agency or state to immediately inform the Registration Officer appointed under Rule 3 of the Registration of Foreigners Rules, 1992, about the grant of bail.
2. The Registration Officer must then notify all relevant authorities, including the Civil Authorities, enabling them to take appropriate steps under the law.

The Court issued the order in response to an appeal by a Nigerian national, who was challenging specific bail conditions imposed on him in an NDPS case. On July 8, 2024, the Supreme Court clarified that courts are not obligated to impose a bail condition requiring foreign accused individuals to obtain a certificate of assurance from their respective embassies or high commissions, guaranteeing that they would not leave India and would appear before the court as required.

The current issue before the Court was whether a Foreign Registration Officer or Civil Authority must be made a party to bail applications filed by foreign nationals.

Section 3 of the Foreigners Act, 1946 grants the Central Government the authority to regulate the entry, departure, and stay of foreigners in India, including issuing orders for their arrest, detention, or confinement.

The Foreigners Order, 1948 outlines provisions for appointing Civil Authorities and regulating the departure of foreigners from India. Clause 5 of the Order stipulates that no foreigner may leave India without the permission of the Civil Authority, and departure must be denied if the foreigner is required to answer a criminal charge.

Amicus Curiae Vinay Navare argued that notice should be issued to these authorities when bail is sought in cases involving serious offenses to allow them to provide inputs on the bail application and conditions. Additional Solicitor General Vikramjeet Banerjee also supported issuing notice to the relevant authorities. 

The Court examined the provisions of the Foreigners Act, 1946, the Foreigners Order, 1948, and the Registration of Foreigners Rules, 1992. It was observed that the authorities under these laws have powers independent of the criminal court's jurisdiction over bail. Under Clause 5 of the Foreigners Order, a Civil Authority can impose restrictions on a foreigner's movements, and the foreigner cannot leave India without permission.

The Court further noted that even if bail is granted, the Central Government retains the authority to arrest or detain a foreigner under Section 3(2)(g) of the Act if an order is issued.

Ultimately, the Court ruled that it is unnecessary to implead Civil Authorities or Registration Officers in bail applications filed by foreigners, as they lack locus standi. The Court directed that a copy of this order be sent to the Registrar Generals of all High Courts, who will circulate it to all criminal courts in their respective States.'

Case no.: Crl.A. No. 2814-2815/2024

Case Title – Frank Vitus v. Narcotics Control Bureau & Ors.