Kiran Raj

On January 6, 2025, the Supreme Court of India ruled that it is unnecessary to implead Civil Authorities or Registration Officers under the Foreigners Act, 1946, in bail applications filed by foreign nationals. The Court observed that these authorities lack locus standi to oppose bail applications unless the offense involves Section 14 of the Foreigners Act.

The matter arose from a bail application filed by a foreign national facing criminal charges in India. The central issue was whether the Foreign Registration Officer (FRO), appointed under Rule 3 of the Registration of Foreigners Rules, 1992, must be impleaded in bail applications filed by foreign nationals. The appellant contended that there were procedural gaps in notifying civil authorities during such bail proceedings, which could result in challenges to enforcement under the Foreigners Act and related regulations.

Under Section 2(a) of the Foreigners Act, 1946, a foreigner is defined as any person who is not a citizen of India. Section 3 of the Act grants the Central Government the authority to regulate the entry, stay, and departure of foreigners. Clause 5 of the Foreigners Order, 1948, prohibits foreigners from leaving India without the permission of a civil authority, particularly when their presence is required to answer a criminal charge.

Shri Vinay Navare, appointed as Amicus Curiae, submitted that notices should be issued to civil authorities during bail proceedings involving foreign nationals to ensure procedural compliance. Shri Vikramjeet Banerjee, Additional Solicitor General of India, supported this suggestion and stated that notification to authorities would aid in the enforcement of legal obligations under the Act.

The Court examined the provisions of the Foreigners Act, the Registration of Foreigners Rules, and the Foreigners Order. It referred to Clause 5 of the Foreigners Order and stated:

"No foreigner shall leave India without the leave of the Civil Authority having jurisdiction at the relevant port or place."

The Court further observed:

"When a foreigner’s presence is required in India to answer a criminal charge, permission to leave India must be refused."

The judgment stated that civil authorities possess the statutory power to regulate the movement and departure of foreigners from India. However, the Court held that requiring the impleadment of civil authorities or Foreign Registration Officers in all bail applications involving foreign nationals would result in delays. It stated:

"The authorities under the Act and the Order have no locus to oppose a bail application filed by a foreigner unless bail is sought in a case where the offense is punishable under Section 14 of the Act."

The Court observed that civil authorities’ powers under the Foreigners Act and the Foreigners Order are independent of the judiciary’s authority to grant bail. While administrative authorities may impose restrictions under statutory provisions, their mandatory participation in judicial proceedings is unnecessary unless explicitly required by law.

The Court issued the following directives:

1. "While granting bail to a foreigner within the meaning of the Act, the concerned court shall issue directions to the State or prosecuting agency, as the case may be, to immediately communicate the order granting bail to the concerned Registration Officer appointed under Rule 3 of the Rules."

2. "The Registration Officer shall, in turn, inform all relevant authorities, including the Civil Authorities, enabling them to take appropriate steps in accordance with the law."

3. A copy of the order shall be forwarded to the Registrar Generals of all High Courts, who will ensure its dissemination to all criminal courts across their respective states.

The Court ruled that proper communication of bail orders to relevant authorities was sufficient to ensure procedural compliance under the Foreigners Act, without requiring their impleadment in every bail application.

Case Title: Frank Vitus v. Narcotics Control Bureau and Ors.
Case Number: Criminal Appeal Nos. 2814-2815 of 2024
Bench: Justice Abhay S. Oka and Justice Ujjal Bhuyan

[View/Download order]