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TMI BlogBAIL FOR A FOREIGNERX X X X Extracts X X X X X X X X Extracts X X X X ..... BAIL FOR A FOREIGNER - By: - DR.MARIAPPAN GOVINDARAJAN - Other Topics - Dated:- 10-1-2025 - Section 3 of the Foreigners Act, 1946 ( Act for short) gives powers to the Central Government for making 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. Under clause (g) of Section 3(2), a power has been conferred on the Central Government to issue an order directing that a foreigner shall be arrested or detained or confined. Clause 5 of the Foreigners Order, 1948 deals with the power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant permission to depart from India. The clause 5(1) provides that no foreigner ( in India) shall leave India- otherwise, then at such port or other recognised place of departure on the borders of India as a Registration Officer having jurisdiction at that port or place may appoint in this behalf, either for foreigners generally or for any specified class or description of foreigners; or without the leave of the civil authority having jurisdiction at such port or place. Clause 5(2) of the order provides that leave shall be refused if the civil authority is satisfied that- the foreigner has failed to comply with the formalities of departure prescribed under the Registration of Foreigners Rules, 1939; the foreigner s presence is required i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n India to answer a criminal charge; the foreigner s departure will prejudice the relations of the Central Government with a foreign power; the departure of the foreigner has been prohibited under an order issued by a competent authority. Clause 5(3) of the order provides that a civil authority may prohibit the departure of a foreigner where it is satisfied that such departure would not be conducive to the public interest. Whenever a civil authority issues an order under clause (a), it shall report the matter forthwith to the Central Government which may cancel or modify the order in such manner as it thinks fit. Registration officer Rule 2 (g) defines the expression Registration Officer as a Registration Officer appointed under Rule 3 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... includes an authority authorized in writing by a Registration Officer with the approval of the Central Government to perform the Registration Officer on its behalf. Issue The issue to be discussed in this article is as to whether bail may be granted to a foreigner by Indian Court and whether the Registration Officer is liable to be added as a party to the bail petition with reference to the decided case law. Case law In FRANK VITUS VERSUS NARCOTICS CONTROL BUREAU AND ORS. - 2025 (1) TMI 302 - SUPREME COURT , in its earlier order the Supreme Court dated 08.07.2024 decided the main issues in relation to the bail conditions were decided as detailed below- While granting bail to a foreigner within the meaning of the Act, the concerned court sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll issue direction 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 who, in turn, shall communicate the order to all concerned authorities including the Civil Authorities. If such information is furnished, it will enable the authorities under the Act, the Rules and the Order to take appropriate steps in accordance with the law; and A copy of this order shall be forwarded to Registrar Generals of all the High Courts, who in turn will forward the copies of the order to all the criminal courts in the respective States. In the present appeal the Supreme Court is to decide as to whether it is necessary to implead a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Foreign Registration Officer appointed under Rule 3 of the Registration of Foreigners Rules, 1992 in the bail application filed by a foreigner within the meaning of the Act. The Supreme Court appointed one amicus curiae to help the Supreme Court in this case. The amicus curiae suggested the Supreme Court, that in the event of considering the prayer of the foreigner for granting bail, who is the accused of serious offences, it will be appropriate to issue a notice to the Civil Authority. The said Civil Authority may be heard on the prayer of the bail and bail conditions, if the court refused to grant bail to the accused foreigner. The Supreme Court analysed the provisions of the Act, the Rules and the Order in relation to the grant of bail t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a foreign accused. The Supreme Court observed that under Section 3(2) (b)of the Act, there is a power vested in the Central Government to issue an order generally or with respect to any particular foreigner or class of foreigners that they shall not depart from India or shall depart subject to observance of such conditions on departure as may be prescribed. The Rules do not impose any such restriction on departure from India. However, according to clause 5(1)(b) of the Order, no foreigner shall leave India without the leave of the Civil Authority having jurisdiction. When a foreigner s presence is required in India to answer a criminal charge, permission to leave India must be refused. Under the Order, the Civil Authority can impose restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictions on the movements of a foreigner. Once a foreigner is released on bail, he cannot leave India without the permission of the Civil Authority. Various restrictions can be imposed on a foreigner while he is in India. The said power is wholly independent of the power to grant bail. Notwithstanding the bail granted by a criminal court, the power to arrest and detain a foreigner can be exercised, provided the Central Government makes an order in terms of clause (g) of Section 3(2) of the Act. Therefore, the Supreme Court considered that it is not important for issuing a notice to the local authority and add it as a party to the criminal case, since the said authority has no locus to oppose the bail petition unless bail is sought where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Supreme Court was of the opinion that while releasing a foreigner on bail, the Court should direct the investigating agency or the State, to immediately inform the concerned Registration Officer appointed about the grant of bail so that the Registration Officer can bring the fact of the grant of bail to the notice of concerned Civil Authority. The Supreme Court held that the present Criminal Appeals shall be treated as disposed of in terms of the judgment and order dated 08.07.2024 and this order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Scholarly articles for knowledge sharing authors experts professionals Tax Management India - taxmanagementindia - taxmanagement - taxmanagementindia.com - TMI - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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