Abu Sahik @ Sahid @ Abu Saeid Howladar @ Md.Abu Saeed Howladar vs State Of Odisha

G. Satapathy, J

This is a bail application U/S.483 of BNSS by the Petitioner for grant of bail in connection with Aska PS Case No.514 of 2025 arising out of GR Case No.1620 of 2025 pending in the Court of learned JMFC, Aska, Ganjam being charge sheeted for commission of offences punishable U/Ss. 465/ 467/ 474/471 of IPC read with Sec. 12 of Passport Act, 1967/ Rule-6 of Passport (Entry into India) Rules, 1950 & Sec. 14/ 14(A)/ 14(B)/14(C) of the Foreigners Act, 1946.

The case against the petitioner arises out of an FIR in Aska PS Case No. 514 of 2025 lodged by Mr. Girijanandan Pattnaik DSP, IUCAW, Ganjam, Chatrapur by stating inter alia that on 16.08.2025, he along with IIC, Aska had been to State Holding Centre at Athagarh in Cuttack District for the purpose of interrogating of one Bangladeshi National detainee; namely Abu Sahik @ Sahid @ Abu Saeid Howladar(petitioner herein) and during interrogation, it is ascertained that the petitioner was a permanent resident of village Sitaikunda PS-Kotalipada, District-Gopalganj, Division Dhaka, Bangladesh and his parents are still alive in the said address and he was born on 05.03.1976 in the said village and studied up to Class IV in Sitaikunda Primary School in Bangla medium and his entire family members including two brothers and three sisters reside there. It is further ascertained during interrogation that the petitioner in the year 1991, when he was aged about 20 years, left his native village and came to Benapole, one of the bordering town of Bangladesh and from there, he clandestinely entered/intruded into Indian Territory without any immigration document and security checks and came to Banagaon in West Bengal and then travelled to Kolkata and resided there in a rented house at Birhat area by doing umbrella repairing work and stayed there for four to five months and thereafter, he moved to Aska where he resumed the umbrella repairing business by staying in Redica Sahi, Aska in the house of one Usman Khan on rent and on 18.10.2001, the petitioner married (Nikha) to one localite of Aska namely Tehera Banu @ Teherun Begum D/O Sk. Ismil of Aska and blessed with two sons and two daughters in the meantime, but in the year 2004, the petitioner, his wife and his two children had been to his native village Sitaikunda, Bangladesh and again came back to India in a clandestine manner with the help of someone/guide by leaving their eldest daughter there at Sitaikunda and accordingly, his eldest daughter has been raised by her grandparents showing her place of birth as Sitaikunda, but his eldest daughter again came to India for doing Graduation in English at Brainware University, Kolkata on the strength of a Bangladeshi Study visa valid till 30.09.2025 with Bangladeshi Passport number is A02867232 and Phone number 9777893148. The informant further claims that he had verified the Passport of the daughter of the petitioner and ascertained from her that her actual place of birth is Aska, but records has been manipulated to show her birth at Sitaikunda, Bangladesh and she had visited her parents in Aska during her leisure period. It is also stated in the FIR that the petitioner had systematically and fraudulently obtained Indian identity documents as he procured Indian Voter Identity Card in the year 2008 by stating himself to be resident of Aska with Aadhar Card and PAN Card together with Ration Card in the name of his wife and in the year 2019, he had applied for an Indian Passport and succeeded in fraudulently obtaining the same by submitting forged documents. In the process of interrogation, the DSP found the petitioner to be a Bangladeshi National by birth and domicile who had entered into India illegally in the year 1991 without any documents and he has remained in India by fraudulent misrepresentation and obtaining multiple Indian documents, such as Voter ID, Aadhaar, PAN, Ration Card and Passport. On the FIR, the petitioner was arrested and forwarded to the Court for commission of offences U/Ss. 465/467/474/471 of IPC read with Sec. 12 of Passport Act, 1967 & Sec. 14/14(A) of the Foreigners Act, 1946, but subsequently charge sheeted for the offences indicated in the preceding paragraph. After denial of bail to him by the learned Additional Sessions Judge, Aska, the petitioner is before this Court in this bail application.

Heard, Mr.Bibhu Prasad Tripathy, learned Senior Counsel who is being assisted by Mr.Partha Agarwal, learned counsel for the petitioner and Mr. P. Satpathy, learned Addl. PP in the matter and perused the record.

For clarity on the issue of bail to an accused person who is allegedly a foreign national and staying in the country without any valid documents, the laws and rules governing the fields need to be discussed. In the sequence relating to citizenship, the Constitution of India comes first and part-II(Citizenship) of it decides the citizenship status of people as on 26th January, 1950, but Article 11 confers power on the parliament to regulate right of citizenship by law and, therefore, there was no gap in the law at the commencement of Constitution of India, however, Article 5 prescribes that every person who has his domicile in the territory of India and who meet the requirements therein shall be a citizen of India, but Art.6 provides right to citizenship to certain persons who have migrated to India from Pakistan, if they met certain conditions such as having family roots in undivided India and getting registered themselves as citizens of India. Art.7 negates the rights of citizenship to those persons who moved from India to Pakistan after 1st March of 1947, unless they came back to India with a valid permit for permanent settlement or re-settlement. Art.8 provides to a person of Indian origin living abroad to get citizenship, if he is registered by Indian diplomatic or consular office, whereas Art.9 takes away the citizenship from anyone, if he has voluntarily acquired the citizenship of any foreign State, however, Art.10 continues the citizenship with those recognized under the earlier articles, unless the parliament makes a different law. Part II of the Constitution of India, however, brings clarity on legal points as to who would be considered a citizen at the beginning of republic and the rights of citizenship is not fixed forever and it can be changed by the parliament on the basis of the needs of the country, nonetheless Part-II of the Constitution of India was never intended to be a full and final authority on citizenship and thereby, the parliament enacted Citizenship Act, 1955 (in short "the Act") to have a permanent system for acquiring, loosing and dealing with citizenship issues.

It is, therefore, very clear that the Act is the main law for deciding the question about the nationality of a person in India, but there are certain issues involved in this case; such as Firstly, to ascertain as to who is a Foreign National and when he is called an illegal migrant in India; Secondly, the detention, identification & determination of Foreign National; Thirdly, the procedure to be adopted during inquiry, investigation & trial and lastly, the procedure after trial till deportation of such Foreign National/illegal migrant. According to Sec.2(1)(b) of the Act, an "illegal migrant" means a foreigner who has entered into India- (i) without valid passport or other travel documents and such other documents or authority as may be prescribed by or under any law in that behalf or (ii) with a valid passport or other travel document and such other document or authority as may be prescribed by or under law in that behalf, but remains therein beyond the permitted period of time. [Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st Day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of Sec.3 of the Passport (Entry into India) Act, 1920 (34 of 1920) or from the application of the provisions of the Foreigners Act, 1946 (31 of 1946) or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act]. How citizenship can be acquired has been provided in Sec.3 of the Act which reads as under:-

Citizenship by birth-(1) Except as provided in sub-section (2), every person born in India-

(a) on or after the 26th day of January, 1950, but before the 1st day of July, 1987;

(b) on or after the 1st day of July, 1987, but before the commencement of the citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth;

(c) on or after the commencement of the Citizenship (Amendment) Act, 2003 where-

(i) both of his parents are citizens of India; or

(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth

(2) A person shall not be a citizen of India by virtue of this section if at the time of his birth-

(a) either his father or mother possesses such immunity from suits and legal process as it accorded to any envoy of a foreign sovereign power accredited to the President of India and he or she, as the case may be, is not a citizen of India; or

(b) his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy.

It is, therefore, clear that illegal migrants are those people who migrates to the country in violation of immigration laws and who have not acquired the citizenship of India or continue to stay in India without any document as referred to above and even the children born to the parents who are illegal migrants, or anyone of them is illegal migrant is also not a citizen of India automatically by birth and, therefore, taking birth is not a criterion to acquire citizenship automatically, unless they fall under the definition as discussed above. A sovereign country like ours does not support any kind of illegal migration either into its territory or through illegal immigration, however, the illegal immigrant needs to be deported lawfully.

The next issue of detection, identification and determination of a Foreign National who are allegedly found to have committed offence in India is not only difficult/herculean task, but also a serious concern for the Country. On this issue, Sec.2 of the Passport (Entry into India Act) 1920 (in short "the Act of 1920") defines the word "entry" to be entry by water, land or air and Sec.3 therein provides power to Central Government to make rules to prohibit the entry into India or any part thereof any person who has not in his possession a passport issued to him and Sec.4 therein provides power of arrest to any police officer not below the rank of Sub-inspector, and any officer of the Customs Department empowered by a general or special order of the Central Government in this behalf without warrant any person for contravention of the rules or against whom a reasonable suspicion exists for contravention for such rules or order made U/S. 3 of the Act of 1920. Sec.5 of the Act of 1920 provides power to the Central Government for removal of any person from India who in contravention of any rule made U/S.3 of the Act of 1920. Further, Sec.2 & 3 of the Passport Act, 1967 defines the word "departure", "passport", "passport authority", "prescribed" and "travel document", whereas Sec.12 thereof deals with offences and penalties and Sec.13 of it provides the power to arrest of such person who have committed any offence U/S.12 of the Passport Act, 1967.

In the context of this issue, it is considered to appropriate to state that Sec.14-A of the Foreigners Act, 1946 prescribes the penalty for entry in restricted areas and Sec.14-B thereof provides penalty for using forged passport, whereas Sec.14-C provides Penalty for abetment. In the sequence, Sec.14 of such act prescribes penalty for ;(a) whoever remains in any area in India for a period exceeding the period for which the visa was issued to him, (b) whoever does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder and, (c) whoever contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act. In addition to the above act, the Central Government has also framed "the Foreigners Order, 1948" to exercise power U/S.3 of the Foreigners Act, 1946, but Clause 7 thereof prescribes Restriction of Sojourn in India, which specifically mandates in sub-section.1 thereof that every foreigner who enters India on the authority of a visa issued in pursuance of the Act of 1920 shall obtain from the Registration Officer having jurisdiction either at the place at which the said foreigner enters India or at the place at which he presents a registration report in accordance with rule 6 of the Registration of Foreigners Rules, 1939, a permit indicating the period during which he is authorized to remain in India and also indicating the place or places for stay in India, if any, specified in the visa. In granting such permit, the said registration officer may restrict the stay of the foreigner to any of the places specified in the visa. Further, it is also clarified therein that the foreigner to whom above provision do not apply shall obtain a permit indicating the period during which he is authorized to remain in India from the Registration Officer to whom he presents a registration report in accordance with the rule 6 of the Registration of Foreigners Rules, 1939. It is, therefore, clear that the authorities under various enactments, rules and orders provide responsibility to the Police Officers, Custom Officers, Immigration Officers, Foreigners Registration Officers (FRO), Foreigners Regional Registration Officers (FRRO) and others for identifying the person who are not citizens of India and who have entered into India without passport or visa or without any travel document or even if they have entered into an Indian territory with valid visa and passport, but overstayed in the country without any license or permission from the authority concerned and the validity of such documents has already expired. It needs to be stated here that the responsibility has also been entrusted on everybody under the Foreigners (Report To Police) Order 2001 that where any person who has reason to believe that a foreigner has entered India without valid document(s) or is staying in the country beyond the authorized period of stay, accommodates such foreigner in a premises, occupied, owned or controlled by him, for whatever purpose, it shall be the duty of such person to inform the nearest police station, within 24 hours, about the presence of such foreigner.

One of the complex issue is the determination of nationality of a person/foreigner, but Sec.8 of the Foreigners Act, 1946 solves the issue as to how to determine the nationality of a foreigner and, therefore, if a question arises for consideration in respect of a particular person as to his nationality, the same has to be determined as a condition precedent before his deportation from India. Sec.9 of the Foreigners Act, 1946 prescribes the Burden of proof on the person who claims to be not a foreigner, to establish the same and, therefore, the onus of proving that he is not a foreigner or not a foreigner of such particular class or description may be on the said person, but the determination as to whether a person is a foreigner or not has to be decided by a tribunal constituted under the Foreigners (Tribunal) Order, 1964 which is a legislation framed in exercise of power U/S.3 of the Foreigners Act, 1946.

On coming back to the third issue of the procedure to be adopted during inquiry, investigation & trial concerning the foreigners. In a vast country like ours, where the physical features of different persons of bordering country has resemblance to the citizens of India, it is very difficult to identity such foreign nationals, but fact remains that some States of India sharing border with other country has potential for infiltration of illegal immigrants and thereby, these infiltration poses serious task to identity the illegal immigrants intruding to our country, but once the illegal immigrants are detected in our country, how they are to be treated or how the illegal immigrants committing offence in our country has to be treated under law are serious questions to be considered. True it is that when an accused who is a foreign national and not a citizen of India violates not only the provisions of Foreigners Act, but also some time the penal laws of the country, however, they shall be treated at par with other accused persons of our country and the same procedure is required to be adopted by the authorities for inquiry, investigation and trial before competent courts of law. In fact no procedural law distinguishes the illegal immigrants and the citizens of India. It is worthwhile to mention here that the Foreigners Act, 1946 and other enactments concerning foreign nationals, do not provide any provision or separate procedure for the courts while dealing with such Foreign Nationals Offenders who have committed any offence under the Foreigners Act or any other penal laws of the country and, therefore, unless a separate procedure is contemplated or the application of procedural law such as BNSS is barred, the same applies with equal force for the purpose of dealing with such offenders which is found from the saving clause as contemplated in Sec. 5 of BNSS which says that nothing contained in this Sanhita shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Besides, Article 14 of the Constitution of India, which promotes equality before law provides that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India, but it does not distinguish or discriminate any one including the Foreign Nationals which is evident from the word used "any person" as compared to the word used Article 15, 16, 18 & 19 which use the word "citizen" in the provisions contained therein. Similarly, Article 20 & 21 of the Constitution of India does not discriminate the Foreign Nationals and these two provision of Part-III Fundamental Rights does not restrict its provision to the citizens of India, rather it is extended to person(s) and, therefore, the provision under Article 14, 20 & 21 are not citizen centric, but person centric. Further, Article 14, 20 & 21 quite relate to the law, conviction and liberty of a person which ultimately includes the commission of offence under Penal Laws in India. In the aforesaid backdrop, when the provisions under special enactments like Foreigners Act, 1946 is considered, it is found that there is no bar for the Courts to deal with Chapter XXXV of the BNSS, more particularly the provision of Sec. 478 to 483 of the BNSS for bail. Further, the provision of BNSS is equally applicable for the inquiry, investigation & trial of the criminal cases registered against the Foreign Nationals, unless the same is barred or contrary to any special law.

Once a criminal case is registered against a Foreign National, it appears that there is no bar in applying the provisions of bail, but one question automatically comes to the mind is what is the procedure that should be followed at the time of granting or refusing bail to such Foreign Nationals under the provision of Sec. 478 to 483 of the BNSS. In the context, one has to think the Foreign National who is wanted or detained in a criminal case for not having valid travel documents or overstaying in the country or staying in the country as illegal immigrants, how he can move freely in the country as in the case of citizen of the country, even if bail is granted to such Foreign National. It is, however, in the considered opinion of the Court that the grant of bail to a Foreign National cannot be equated with an authority or license for the Foreign National to move freely around the country as if it legalized his movement in country. In the context, this Court considers it appropriate to discuss Sec. 3 of Foreigners Act, 1946 which in fact plays a significant role for movement of foreign national in our country. Sec. 3 of the Foreigners Act, 1946 provides power to the Central Government to make provision or orders and Sec. 3 of the Foreigners Act reads as under:-

"3. Power to make orders.-

(1) The Central Government may by order make 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.

(2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner-

(a) shall not enter [India] or shall enter [India] only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed;

(b) shall not depart from [India], or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed;

(c) shall not remain in [India], or in any prescribed areas therein;

(cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal;

(d) shall remove himself to, and remain in, such area in [India] as may be prescribed;

(e) shall comply with such conditions as may be prescribed or specified-

(i) requiring him to reside in a particular place;

(ii) imposing any restrictions on his movements;

(iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified;

(iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified;

(v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified;

(vi) prohibiting him from association with persons of a prescribed or specified description;

(vii) prohibiting him from engaging in activities of a prescribed or specified description;

(viii) prohibiting him from using or possessing prescribed or specified articles;

(ix) otherwise regulating his conduct in any such particular as may be prescribed or specified;

(f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions;

[(g)shall be arrested and detained or confined;] and may make provision for any matter which is to be or may be prescribed and for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act.

(3) Any authority prescribed in this behalf may with respect to any particular foreigner make orders under clause (e) or clause (f) of sub-section (2)".

The above provision makes it very clear that a foreigner who is presumed to be an illegal migrant cannot remain in India or wonder or move around freely, unless and until he is authorized or permitted by the competent authorities to remain in India with certain conditions regulating his conduct/movement within the provision provided U/S. 3(2)(e) & (g) of the Foreigners Act,1946 and these provision empowers the competent authority for any valid reason to exercise these powers restricting the movement of a foreigner who is a illegal immigrant which is very much evident from Sec. 3(2)(e) & (f) of the aforesaid Act. When the laws prohibits the free movement of illegal immigrant-cum-foreigner in the country without any specific order of the authority as contemplated U/S. 3(2)(e) of the Foreigners Act, 1946, whether such illegal immigrant should be detained in regular jails or any other place, if his bail is either refused or granted. It makes no different, if the bail application of such Foreign National is refused, but when bail is granted to such Foreign National, it is to be decided as to where such illegal immigrant would stay because he has got no authority to move freely around, unless the same is permitted by competent authority under law. In this context, the Government of India, Ministry of Home Affairs vide letter No. 25022/28-2020-F.I(Part-III) dated 02.05.2025 communicated to the Chief Secretaries of all the States/Union Territory Administration/DGP/IGP of all states/UTs/ DG, BSF/DG, Assam Rifles/DG Coast Guards has issued certain instruction prescribing the procedure for deportation of illegal Bangladeshi Nationals/Rohingyas who are illegally staying in our country. The aforesaid communication makes the State Governments/UT Administration primarily responsible for identifying the illegally and overstaying Foreign Nationals, their restriction in identified places and their deportation and it is further provided therein that the suspected person (foreign national)/illegal immigrants shall be kept in Holding Center to ensure physical availability at the time of deportation/send back. It is further prescribed in the aforesaid communication that the Central Government in making orders of the nature specified in Sec. 3(2)(e) and 3(2)(c) of the Foreigners Act, 1946 for detention and deportation of Foreign Nationals, Sec. 5 of the Passport (Entry into India) Act, 1920 and under the Foreigners Order, 1948 have been entrusted under Article 258(1) of the Constitution of India to the State Government vide Notification S.O.No. 590 F.No.4/3/56-(I)F.1 dated 19th April, 1958. It is, however, informed by the State counsel that the State of Odisha has in fact established 21 Holding Centers (2 State Level and 19 District Level) to keep illegal immigrants awaiting their deportation and designated all the Superintendent of Police and Deputy Commissioner of Police in charge of the Police District as "Civil Authority within their respective jurisdiction" and the Director Intelligence, Odisha and all Superintendents of Police/Deputy Commissioners of Police as "Registration Officers".

Before proceeding further, one question automatically comes to the mind that whether the Foreigner/illegal immigrant who is not having any valid documents or overstaying in the country even after his travel document /passport/visa has expired, can be allowed to remain in India for the purpose of a criminal case. In the context, it needs to be emphasized that in exercise of power U/S.3 of the Foreigners Act, 1946 and in supersession of the Foreigners Order, 1939 and of all notification amending the same, the Central Government has framed the Foreigners Order 1948, but Clause-5(1)(b) thereof prescribes that no foreigners shall leave India without the leave of the Civil Authority as appointed having jurisdiction at such Port or Place and Clause-5(2)(b) thereof mandates that such leave shall be refused, if the Civil Authority is satisfied that the foreigner's presence is required in India to answer a criminal charge. The aforesaid provision amply clarifies that the foreigner(s) /illegal immigrant, who is/are facing a criminal charge, may be allowed to remain in India, even if he/they is/are not authorized to stay in India for various reasons including for the violations of penal laws. As already discussed and held that granting bail to a foreign national should not be understood/confused to mean that the grant of bail to a foreign national shall not legalize his stay in country and, therefore, the Courts while passing order granting bail to the Foreign National or dealing with the matter of such Foreign National may inform the competent authorities as contemplated U/S. 3(2) of the Foreigners Act, 1946 who are empowered to pass appropriate orders under the said provision for keeping the illegal immigrants anywhere else, other than the Jails till the investigation, inquiry or trial is concluded. Further, the competent authority can put any conditions to them in terms of Sec. 3(2)(e) & (f) of the Foreigners Act, 1946 and can also take bond with or without surety for the observance of the conditions stipulated therein, when they are released on bail, otherwise the authorities have to make necessary arrangement to detain the Foreign National/immigrants in separate Detention Center/holding center till they are deported to their countries, nevertheless the Court has the power to pass appropriate order for detention of such illegal immigrants. Further, in view of the communication as referred to above in letter No. 25022/28-2020-F.I(Part-III) dated 02.05.2025 of the Central Government, the State Government/UT are instructed to have Holding Center to ensure physical availability of the illegal immigrants and the State of Odisha having been established 21 Holding Centers in the State, there would not be any difficulty in keeping the illegal immigrants in such Holding Center, if the illegal immigrant is granted bail and the authority as contemplated U/S. 3(2) of the Foreigners Act, thinks it fit and proper to keep him in such Holding Center. This Court makes it very clear that the Foreign National can be granted bail, if the situation so demands, since Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. It is quite obvious that whether the accused Foreign National is enlarged on bail or kept in jail or in Holding Center, but he is entitled to be tried before the Court in accordance with law for the alleged offence committed by him and the competent Court has all the powers as provided in law to deal with such Foreign National in the course of inquiry, investigation and trial.

One more question comes to the mind of the Court that after the trial, if the accused Foreign National is acquitted or convicted, what should be the procedure that should be followed till the Nationality of such Foreign National is decided, if it is pending before the Tribunal. It makes no difference, if the Foreign National is convicted for the offence punishable U/S. 14, 14A, 14B & 14C of the Foreigners Act and he being held to be an illegal migrant, it goes without saying that such convicted Foreign National is not entitled to reside in India, unless his conviction is set aside by higher forum, however, the convicted Foreign National can be kept in jail till he serves out the sentence, but his deportation is subject to the decision of the appropriate Government. In case of acquittal of Foreign National, whose Nationality was yet to be decided before the Tribunal, such Foreign National shall not be kept in jails, rather they may be kept in Holding Center till his Nationality is decided and further process of deportation is undertaken. It is further informed by the State counsel that no Holding Center Manual or any SOP has been prepared by the State Government for running of Holding Center and its management in providing food, shelter and other facilities/amenities to the detainee Foreign National, but it appears that the Central Government has already approved a Model Detention Center/Holding Center Manual, 2019 with regard to legal provisions for deportation and detention of Foreign Nationals and amenities to be provided in such Detention Center/Holding Center/Camps. The State of Odisha can also prepare such Manuals or SOP for management of its Detention Centers/Holding Centers. One of the important issues emerges is as to how to provide appropriate bare needs of necessity to the women and children kept in such Holding or Detention Center. In this regard, this Court feels it proper to suggest to follow the guidelines/directions as issued by the Apex Court in R.D.Upadhaya Vrs. State of Andhra Pradesh; (2007)

15 SCC 337 for the children and women kept in such centers.

The discussions made hereinabove are with regard to the different aspects of Foreign National/illegal migrants, but reverting back to the case at hand to adjudicate the bail application of the petitioner, it appears that the petitioner herein is alleged for committing offence U/Ss. 465/467/474/471 of the IPC read with Sec. 12 of Passport Act, 1967/ Rule-6 of Passport (Entry into India) Rules, 1950 & Sec. 14/ 14(A)/ 14(B)/14(C) of the Foreigners Act, 1946, but none of the provisions except for the offences U/Ss. 467/474 of the IPC prescribe punishment beyond eight years. Besides, it is alleged against the petitioner for illegally staying in India by marrying an Indian National and for manufacturing documents such as Aadhar Card, Voter id Card, Pan Card, Rational Card and Passport, however, there is no allegation against the petitioner for indulging in any terrorist activity or propagating anti national movement or theme and there is no material to suggest any security threat from the side of the petitioner. It is also not in dispute that the petitioner is blessed with two daughters and two sons, some of them have born prior to commencement of the Citizenship (Amendment) Act, 2003 and the wife of the petitioner is an Indian National. Further, the petitioner is in custody since 05.09.2025, but only charge sheet has been submitted and trial is yet to commence. It is also informed by the State counsel that there is Detention/Holding Center in the Ganjam District in a Government quarter at Chatrapur and thereby, there would not be any impediment for the officer appointed U/S. 3(2) of the Foreigners Act, 1946 to pass appropriate order for movement of the petitioner, provided he is informed. In the aforesaid facts and circumstance, this Court does not find any impediment to grant bail to the petitioner, since the trial is not likely to be concluded in near future. This Court in peculiar facts and circumstance of the case considers it not improper to grant bail to the petitioner with appropriate conditions.

In the context of imposing appropriate conditions in case the petitioner is enlarged on bail, the petitioner has relied on a host of citations, out of which in Emechere Maduabuchkwu vrs. State of NCT of Delhi & Another; 2023 DHC 3872, the Delhi High Court in Paragraphs-32 & 34 has observed as follows:-

"32. Xx xx xx Detention centres are not for judicial custody but a place where a foreign national is detained on an executive order and is the prerogative of the competent authority under the Foreigners Act.

34.xx xx Even Babul Khan (supra)[ Babul Khan and another vrs. State of Karnataka;2020 SCC OnLine Kar 3438] holds that such foreigners without visa may be kept in detention centres "unless the competent authority has passed any order under Section 3(2)(a) to (f) of the Foreigners Act, 1946xx xx xx".

In Foreign Regional Registration Office vrs. Emechere Maduabuchkwu; Special Leave to Appeal(Crl.) Nos. 7285-7286 of 2024, the Apex Court in Paragraph-11 has observed as follows:-

"11. We clarify that we have passed this order in the peculiar facts and circumstances of this case and shall not be treated as a precedent".

In Samuel Akujuobi Vrs. Union of India & others; 2026 DHC 1980, the Delhi High Court in Paragraphs-39, 41 & 59 has observed as follows:-

"39. Xx xx xx However, it is not within the domain of the Court to direct detention or release from the detention centers. In terms of Section 3 of the Foreigners Act, 1946, it is an executive function, which vests exclusively with the Central Government.

Section 3 Foreigners Act therefore, provides that where continued presence of a Foreigner is necessary for completion of trial, the Competent Authority may exercise any of the options provided under Section 3(2) of the Foreigners Act, inter alia, (i) to remain in such place, as may be prescribed; (ii) to reside in a particular place; (iii) impose restrictions on the movement; and (iv) or entering into a bond with or without sureties for the observance of such prescribed conditions as in Section 3(2)(f). These options are aside from the simplicitor option of detention of a person in the Detention Centers, in terms of Section 3(2)(g).

It may thus, be concluded that Detention Centre is not a place for judicial custody, but a place where foreign national is detained pursuant to an Executive order and this is the prerogative of the Competent Authority under the Foreigners Act.xx xx xx".

The upshot of careful scrutiny of the provisions of Sec-3(2) of the Foreigners Act, 1946 together with observation made in the decisions referred to above, the only inexorable conclusion is that it is only the prerogative of competent authority whatever designation he is referred to, to pass appropriate order U/s. 3(2)(e) & (f) of the Foreigners Act, 1946, provided he must be informed at the time of releasing the illegal immigrant/foreigner on bail and the said authority is competent to pass any order within such provision requiring the foreigner to reside at particular place or imposing any restriction on his movements, requiring him to furnish such proof of his identity and to report such authority in such manner, or prohibiting him from association with persons of a prescribed or specified description, prohibiting him from engaging in activities of a prescribed or specified description, or prohibiting him from using or possessing prescribed articles or otherwise regulating his conduct in such particular as may be prescribed or specified. It is to be reminded that bail proceedings relate only to the release of person from judicial custody and cannot be considered for passing any order which the competent authority is competent to pass in exercise of power U/S. 3(2) of the Foreigners Act, 1946, nonetheless there is no prohibition for keeping the illegal immigrants/foreigners in any place or restricting his/her movement strictly in terms of Sec. 3(2)(e) & (f) of the Foreigners Act, 1946.

For imposing appropriate condition while granting bail to a foreigner/illegal immigrant, in Frank Vitus Vrs. Narcotics Control Bureau & Others (2025) INSC 30 the Apex Court has issued the following direction:-

(i) While granting bail to a foreigner within the meaning of the Act, the concerned court shall 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.

In the result, the bail application of the petitioner stands allowed and he be allowed to go on bail on furnishing bail bond of Rs.50,000/- (Rupees Fifty Thousand) with solvent sureties each for the like amount to the satisfaction of the learned Court in seisin over the matter on such terms and conditions as deem fit and proper by it in addition to the following conditions:-

(i) the petitioner shall not indulge in any criminal activities,

(ii) the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the Court,

(iii) the petitioner shall cooperate the trial without fail,

(iv) the petitioner shall abide by any order passed by competent authority U/S. 3(2)(e) & (f) of the Foreigners Act, 1946.

The Court in seisin over the matter shall also inform the authority appointed U/S. 3(2) of the Foreigners Act, 1946 and comply the condition as directed by the Apex Court in Frank Vitus(supra) while releasing the petitioner on bail.

In view of the foregoing discussions made herein above and there being no comprehensive guidelines by the State to deal with the illegal immigrant/Foreign National in a criminal case, this Court feels it proper to issue some guidelines, however, the same is not exhaustive, but may help the authority dealing with the matter and the aforesaid guidelines be considered as a suggestion/advisory to streamline the proceeding concerning the Foreign National who are illegal immigrant to avoid any anomalies & difficulties.

GUIDELINES

(i) When it is found that offence(s) under Foreigners Act, 1946 and other laws is/are committed and such accused persons is a Foreign National/illegal immigrant without having any valid documents, such as passport or visa or his visa or passport has expired and he has no right to stay in Indian territory, appropriate proceeding/criminal case shall be immediately initiated against such persons without unnecessary delay.

(ii) On registration of criminal case, the Jurisdictional Police shall immediately inform the concerned authorities to initiate appropriate proceeding and prioritize the investigation with an endeavor to conclude the same as early as possible.

(iii) On production of such Foreign National/illegal immigrant who has no authority to stay in the country, the concerned Court if moved for bail shall dispose of the same expeditiously and in case, the Court refuses to grant bail to such illegal immigrant, he shall be kept in regular jail till disposal of the case, but in case the Court grants bail to such illegal immigrant/Foreign National, it shall intimate the competent authority while releasing such illegal immigrant/Foreign National on bail so as to enable the competent authority to pass any order U/S. 3(2)(e) and 3(2)(f) of the Foreigners Act 1946, if required.

(iv) The Court while granting bail shall follow the instruction as laid down by the Apex Court in Frank Vitus Vrs. Narcotics Control Bureau & Others (2025) INSC 30.

(v) In a case, the illegal immigrant is a woman or a woman with an infant child, as the case may be, such women may be kept either in regular jail or holding/detention center with her infant child, if any and all the facilities under the relevant Manual, Rules and in terms of the guidelines issued in RD. Upadhaya (supra) be extended to her/them.

(vi) In case the illegal immigrant/Foreign National is a child, the trial against such child shall be conducted strictly in accordance with the Juvenile Justice (Care and Protection of Children) Act, 2015 and rules made thereunder.

(vii) On conclusion of investigation, the concerned Court shall immediately proceed further so as to ensure speedy trial for such illegal immigrant for disposal of the case as expeditiously as possible and the trial Court shall make all endeavor to conclude the trial as early as possible.

(viii) The Court concerning the matter relating to illegal immigrant/Foreign National who has no proper or valid travel documents or whose visa has already expired, shall take cognizance of such aspect and make appropriate order in accordance with law so that the legal process is not to be used as an instrument for subterfuge or overstay in the country.

(ix) On finding the illegal immigrant to be guilty of the offences, the trial court shall impose appropriate sentence and the illegal immigrant shall be directed to serve out his sentence in regular jail, but in case the Court finds the illegal immigrant/Foreign National to be not guilty, it shall pass a judgment recording acquittal and inform the competent authority (civil authority) for further action in the matter, if any.

(x) If the criminal case against the Foreign National/illegal immigrant ends up in discharge or acquittal, but his Nationality is in dispute before the competent tribunal, he may be ordered to be kept in Detention Center/Holding Center till he is deported to his country, unless he has any right or otherwise entitled to remain in this country.

(xi) The State Government of Odisha shall adopt the Model Detention Center/ Holding Center/ Camp Manual, 2019, if already not adopted as circulated by the Central Government and it shall establish Detention Center/ Holding Center in each District, if not established therein. Further, the State may also prepare a Standard Operate Procedure (SOP) for maintenance or management of Detention Center/Holding Center in conformity with the model manual, 2019.

(xii) The State Legal Services Authority shall issue suitable direction/instruction to District Legal Services Authority and Taluk Legal Services Committee to make periodical visit to the jails/Detention Center/Holding Center under their jurisdiction to ensure and satisfy that the concerned authorities have taken necessary steps to implement the direction issued by the Apex Court in RD Upadhaya (supra).

Accordingly, the bail application stands disposed of. A copy of this order be sent to the Chief Secretary, the Addl. Chief Secretary, Home Department, Odisha and DG of Police, Odisha for compliance and the soft copy of order be made available to all the criminal Courts of the State, Director, Odisha Judicial Academy & Member Secretary, OSLSA for guidance.