Full Text
HIGH COURT OF DELHI
Date of Decision: 31.01.2024
MICHAL BENSON NWAOGU @ CHUNA BENSON ..... Appellant
Through: Mr. Vikas Walia, Ms. Drishti Harpalani and Mr. Yash Bansal, Advocates
Through: Mr. Ajay Vikram Singh, APP
Mr. Kirtiman Singh, CGSC
ANOOP KUMAR MENDIRATTA, J (ORAL)
JUDGMENT
1. CRL. A.1063/2016 has been preferred by the appellant challenging the judgment dated 09.09.2016 and order on sentence dated 21.09.2016 whereby the appellant has been sentenced to undergo Rigorous Imprisonment for 03 years with fine of Rs. 50,000/- (in default of payment of fine, to undergo SI for six months) for offence punishable under Section 21(b) of NDPS Act,
1985. The appeal stands admitted vide order dated 09.11.2016 and sentence of the appellant was suspended vide order dated 07.02.2017.
2. CRL.M.A.470/2023 has been preferred by the appellant seeking directions for release of passport and renewal of Visa, on which directions were issued by this Court vide order dated 01.02.2023 as under:
3. Learned counsel for the appellant submits that passport has since been renewed but directions need to be issued for renewal of appropriate category of Visa to ensure that the stay of the appellant is authorized during the pendency of appeal.
4. The matter assumes significance in view of difficulties faced by foreign nationals embroiled in criminal cases, since despite being granted the benefit of bail, their movement remains restricted due to confinement in Detention Centres.
5. It may be noticed that in absence of extension of Visa, a foreign national is likely to be deported on initiation of proceedings under Section 3(2)(c)(e) of the Foreigners Act, 1946 read with Section 11(2) of the Foreigners Order, 1948. The foreign nationals, who violate the Visa rules and norms are liable to face the penal consequences under the Foreigners Act, 1946 besides deportation. The discretionary power of extending the Visa of any foreign national before expiry in case of overstay is exercised by the competent authority considering the reasons for overstay and the same can be regularised in justified cases. With reference to a foreign national against whom one or more cases are pending, the matter is considered by the competent authority under the Foreigners Order, 1948.
6. The clarification rendered by FRRO in the status report filed on record as reflected in paras 5 and 9 in this regard may be reproduced for reference:
7. Apart from above, FRRO has also referred to judgments passed in Babul Khan and Others v. State of Karnataka and Another, CRL.P.No.6578/2019 decided by High Court of Karnataka, Principal Bench Bengaluru on 19.05.2020 and Pascal v. Union of India, FRRO Delhi & Anr., W.P.(CRL.)2276/2021 decided by High Court of Delhi on 18.11.2021 and it has also been pointed out that an identical issue is also pending consideration in CRL. REF. No.2/2021 titled as Court on its Own Motion v. Govt. of NCT of Delhi and Others before High Court of Delhi wherein the accused continues to be detained in Restriction Centre.
8. So far as the present case is concerned, the stand of the FRRO as reflected in paras 10 to 12 of the status report may be noticed as under:
10. It is pertinent to mention that the foreign national in the present matter is without a valid passport or a valid visa and is overstaying as an illegal migrant. His movements are required to be restricted at the restriction centre as per the provisions of Section 3(2) of the Foreigner's Act, 1946. Further in respect of visa extension on the basis of pending court case, the appropriate visa can be extended by this department only if the Hon'ble Court specifically orders so. However, the foreign national would need to get his passport renewed first from his concerned Embassy and then make an online application in this office for appropriate visa service after uploading required documents.
11. It is also stated that in this case after the completion of above prerequisites and specific Hon'ble court orders, he can be granted an X-Misc. category visa specifically for attending his court trial/appeal. No other employment, business etc is allowed on such visa. Further two types of visas cannot be granted simultaneously to any foreign national. Till the time the court case is pending, no other type of visa would be granted. In case the visa of the foreign national is extended, then the foreign national would not be restricted at the restricted centre till he is holding a valid visa.
12. Further after the presence of the foreigner is no longer required in India, ultimately the foreign national would be required to be repatriated back to his native country which is undertaken by the department as per existing guidelines.”
9. This Court is of the considered opinion that though the Government has the absolute power to regulate the entry and stay of foreigners, but it is equally well settled that Article 21 of the Constitution of India guarantees the protection of personal liberty of a citizen and foreigner alike. No person can be deprived of personal liberty except according to procedure established by law. As such, whether a foreigner released on bail needs to be detained in a Detention Centre during pendency of proceedings/appeal depends upon the facts and circumstances of each case.
10. In the instant case, the passport of the appellant has already been renewed and stands deposited. Sentence of the appellant has been suspended and orders for release on bail during pendency of appeal were passed on 07.02.2017. The appellant is constrained to stay back in India on account of pending appellate proceedings. Considering the facts and circumstances of the case, I am of the view that appellant should not be deprived of his liberty and kept in Detention Centre despite suspension of sentence and grant of bail by this Court, for want of extension of Visa of appropriate category. Accordingly, the appellant shall file an appropriate application for consideration of the concerned authorities for grant of extension of Visa during pendency of appeal, which shall be disposed of in a time bound manner.
11. The present petition also brings to the fore the necessity of speedy disposal of cases wherein foreign nationals are arraigned as accused and are further detained in Detention Centres wherein their liberty is restricted on account of pendency of cases for long period, despite being admitted to bail. The Trial Courts are accordingly required to expeditiously deal with the criminal cases involving foreign nationals, in the interest of equity and fair play and to ensure that the liberty is not restricted or curtailed, due to delay in conclusion of trials. A copy of this order be forwarded to the Competent Authority for compliance and be also circulated to the Officers of District Judiciary for information. Application is accordingly disposed of. CRL.A. 1063/2016 List the appeal for hearing on 13.05.2024.
ANOOP KUMAR MENDIRATTA, J. JANUARY 31, 2024/R/sd