The case involving a Nigerian national accused in a drugs-related case in July 2024. The Supreme Court earlier ruled that bail conditions allowing the continuous tracking of an accused’s movements infringed upon the right to privacy guaranteed under Article 21 of the Constitution.
NEW DELHI: 6th Jan: The Supreme Court of India stated that foreign nationals facing criminal charges in the country should not be permitted to leave until their legal responsibilities are addressed.
A bench comprising Justices Abhay S Oka and Ujjal Bhuyan emphasized the importance of ensuring the presence of such individuals for justice to be served.
While granting bail to foreign nationals, the court directed that “the court should issue a direction to the state or the prosecuting agency, to immediately inform about its order to the registration officer concerned under the Registration of Foreigners Rules, 1992.”
This ensures proper communication and monitoring of the bail conditions.
The bench further clarified that “when a foreigner’s presence is required in India to answer a criminal charge, permission to leave India must be refused.”
According to the court, the 1948 Foreigners Order allows civil authorities to impose restrictions on the movements of foreign nationals.
The registration officer is tasked with communicating the bail order to all relevant agencies, including the civil authority.
“If such information was furnished, it would enable the authorities under the Act, the rules and the order, to take appropriate legal steps,”
the bench noted.Key Arguments Presented
- Amicus Curiae Vinay Navare argued for issuing notices to relevant authorities in serious offenses to enable their inputs on bail applications and conditions.
- Additional Solicitor General Vikramjeet Banerjee endorsed the need for such notices.
- The Court, however, clarified that authorities under the Foreigners Act and related provisions possess powers independent of the criminal courts to impose restrictions or detain foreigners, even if bail is granted.
Court’s Observations on Legal Provisions
- Clause 5 of the Foreigners Order: Civil Authorities can impose restrictions on a foreigner’s movement, and foreigners cannot leave India without permission.
- Section 3(2)(g) of the Foreigners Act: The Central Government retains the authority to detain or arrest foreigners through appropriate orders.
Despite these provisions, the Court ruled that Civil Authorities and Registration Officers do not hold locus standi in bail applications filed by foreigners. The judgment directed that this clarification be disseminated to criminal courts nationwide.
Brief Facts
Frank Vitus, a Nigerian national, was arrested in 2014 under Sections 8, 22, 23, and 29 of the NDPS Act, 1985. After over eight years of incarceration, the Special NDPS Court granted him bail in May 2022, imposing stringent conditions, including:
- Furnishing a bail bond of Rs 1,00,000 with two sureties.
- Obtaining a certificate of assurance from the Nigerian High Commission.
- Dropping a PIN on Google Maps for real-time location access.
The Delhi High Court upheld these conditions. However, the appellant challenged two specific conditions—the certificate of assurance and the Google PIN location—before the Supreme Court.
The Supreme Court earlier ruled that bail conditions allowing the continuous tracking of an accused’s movements infringed upon the right to privacy guaranteed under Article 21 of the Constitution.
The court examined the Foreigners Act, 1946, and clause 5(1)(b) of the Foreigners Order, 1948, which states, “no foreigner should leave India without the leave of the civil authority having the relevant jurisdiction.”
The bench reiterated that foreigners released on bail must not leave the country without the civil authority’s permission under this provision.
To ensure consistent implementation of these directives, the Supreme Court ordered that a copy of its judgment be sent to the registrar generals of all high courts. They, in turn, must forward it to all criminal courts within their respective states.
The court addressed whether a foreign registration officer appointed under Rule 3 of the Registration of Foreigners Rules, 1992, should be included in bail applications filed by foreign nationals. The bench concluded that such officers or civil authorities under the 1948 order do not have the authority to oppose bail applications unless they involve offenses punishable under Section 14 of the Foreigners Act. Section 14 deals with penalties for violating the provisions of the law.
“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 observed.
Supreme Court’s Analysis and Ruling
1. Certificate of Assurance from the Embassy/High Commission
- The Court revisited its 1994 judgment in Supreme Court Legal Aid Committee v. Union of India, which mandated this condition as a one-time measure for delayed trials involving foreign nationals.
- It clarified that this was not a universal requirement in NDPS cases. Courts may waive the condition if the Embassy or High Commission fails to provide the certificate within a reasonable time.
- The Court emphasized that the inability of the accused to secure such a certificate should not result in the denial of bail.
2. Condition of Dropping a PIN on Google Maps
- The Court deemed this condition as an infringement of privacy under Article 21 of the Constitution.
- Technical submissions from Google LLC revealed that sharing a PIN does not enable real-time tracking, rendering the condition irrelevant.
- The Court underlined that surveillance-oriented bail conditions amount to confinement and contravene the right to privacy.
Both conditions were struck down by the Supreme Court.
The Court reiterated the need for bail conditions to align with Section 437(3) of the CrPC and Section 37 of the NDPS Act, avoiding arbitrary restrictions or undue surveillance. While inputs from Embassies or High Commissions may assist in assessing an accused’s conduct, adverse records alone cannot justify denying bail if statutory conditions are otherwise met.
Case Title: Frank Vitus v. Narcotics Control Bureau & Ors.
Case No.: Crl.A. No. 2814-2815/2024
