The High Court of Karnataka has declared that illegal immigrants and overstaying foreign nationals facing criminal cases cannot be allowed to move freely after release on anticipatory or regular bail, and they should be lodged in the Foreigners Detention Centres (FDCs) till the completion of trial of cases or deportation to their countries.
Also, the court held that such foreign nationals should continue to remain in detention centres even if the case against them ends up in discharge or acquittal, till their deportation unless they are entitled to stay in India or the competent authority passes orders regulating their movement under Section 3(2) of the Foreigners Act, 1946.
- Process for deportation should commence soon after registration of the first information report (FIR)
- The police should inform competent authority immediately the arrest of illegal immigrants
- Public prosecutors, defence counsel and courts should make all efforts for expeditious disposal of cases
- The State needs to set up required number of Foreigners Detention Centres (FDCs) in cities, districts, and taluks with all basic facilities as per the manuals prepared based on the apex court’s directions
- Legal services authorities to make periodic visits to jails and FDCs to ensure enforcement of guidelines and specification of manuals
- Take swift action to sensitise all stakeholders — judges, prosecutors, police officers, Customs and immigration officers, jail authorities, and officers in the FDCs
Their acquittal, discharge or release is no bar for the competent authorities to question the nationality of such persons before the competent tribunal as per the law, the High Court said.
Justice K.N. Phaneendra (now retired) in his recent judgment laid down a series of guidelines to courts, police, and prison authorities for dealing with illegal immigrants and overstaying foreign nationals facing criminal cases for violation of the Foreigners Act and offences under other laws.
The court passed the order while allowing a petition, seeking bail, filed by 46-year-old Babul Khan and his 20-year-old daughter Taniya, both illegal immigrants from Bangladesh, who were arrested in 2018.
If courts refuse to grant bail, then foreign nationals would be lodged in regular prison till the completion of trial. And they continue to serve sentence in regular prison on their conviction and would be transferred to the FDC till their deportation on completion of sentence.
Women foreigners
The court also said that if a woman, who is a foreign national, is in custody and having an infant below the age of six or up to six years, the court may order the child to accompany the mother during her custody.
If either of the parents (foreign nations) get arrested, the court said, then the custody of the child may be given to the other parent who is not arrested, and if both the parents are arrested and they are in custody in same or in some other case, the court may order the custody of children to their close relative or to government shelter home, or to any other organisation recognised or undertaking of the government where the government or authorities concerned can monitor the well-being of the child, as per the Juvenile Justice (Care and Protection of Children) Act, 2015.
Further, the High Court said if necessary and circumstances warrant, and the offences are not heinous or anti-social, or not punishable with imprisonment for more than three years, the authorities could take immediate steps for withdrawal of cases to enable early deportation of such illegal immigrants.
