Whether bail can be given to Foreigners?

Citation;2013 (3) KHC 196, 2013(3)KLJ543, 2013(3)KLT390, 2013(4)RCR(Criminal)252 ;2014(1) crimes 96 kerala

IN THE HIGH COURT OF KERALA

B.A. No. 4210 of 2013

Decided On: 12.07.2013

Appellants: Premanand
Vs.
Respondent: State of Kerala

Hon'ble Judges/Coram:S.S. Satheesachandran, J.

Criminal - Grant of bail - Sections 13and 14 of Foreigners Act read with Section 3 of Passport Act, 1920 (the Act) - Whether bail could be granted to Petitioner or not - Held, in case of Jolly George Varghese v. Bank of Cochin, it was Held that international convention law must gone through process of transformation into municipal law before such international law becomes internal law - Though present proceedings were one relating to bail applied by accused in crime registered and pending investigation, having regard to status of Petitioners proceeded with as refugees human rights issues involved could not at all be lost sight of, but, of course, with consideration of national security as well - Petition disposed of.

1. Petitioners are two among the accused (A3 and A6) in Crime No. 1404/2013 of Aluva East Police Station registered for offences punishable under Ss.13 and 14 of the Foreigners Act read with S. 3 of the Passport (Entry to India) Act, 1920. They have filed the above application seeking their enlargement on bail under S. 439 of the Code of Criminal Procedure, for short the Code. Getting reliable information that some Srilankan citizens are staying without permission, in a lodge, namely, Ambili Tourist Home near private bus stand, Alwaye, a police party headed by Sub Inspector of Police, Alwaye Police Station went over to that lodge. A group of Srilankan citizens including petitioners, ten in number, were found in that lodge without having valid passports or travel documents. Their interrogation disclosing that one Ramesh had brought them from Tamilnadu promising to send them to Australia all of them were arrested. Later on production before the Magistrate they were remanded to judicial custody. Petitioners applied for bail and it was turned down by the Magistrate vide Annexure A8 order. They have therefore approached this court seeking bail.

2. I heard Sri. V.S. Salim, learned counsel for petitioners and also Sri. T. Asaf Ali, State Public Prosecutor.

3. Learned counsel for petitioners submitted that some of the accused in the crime who were arrested with them had already been enlarged on bail by the Magistrate. Petitioners are refugees and they are not liable to be proceeded under the Foreigners Act and also the Passport Act since they were forced to flee from their mother country to save their lives and also fear of prosecution when a civil war was going on in that country, is the submission of counsel. Exploiting their situation while they were in a refugee camp in Tamilnadu, one Ramesh approached them promising to arrange for their trafficking to Australia. They were made to believe that they would get employment and also a secured peaceful life in Australia. After they reached Alwaye and while put up in the hotel police arrested them and ever since they are continuing in custody. Proceedings against petitioners under the Foreigners Act and the Passport Act are an abuse of process of law and violation of human rights when they have the status of refugees is the submission of counsel. Though there is no law as such governing the refugees in the country, rights conferred on refugees under the United Nations International convention and its Protocol have to be recognised and respected, submits the counsel. Judicial pronouncements made by Apex Court in Vishaka & Ors. v. State of Rajasthan & Ors. MANU/SC/0786/1997 : (1997 (2) KLT SN 72 (C. No. 72) SC : (1997)6 SCC 241) and Madras High Court in A.C. Mohd. Siddique v. Government of India & Ors. (MANU/DE/1165/1998 : 1998 (47) DRJ 74) in which rights conferred under the International Convention and Protocol are recognised, is relied by counsel to urge for granting bail to petitioners.

4. Learned State Public Prosecutor fairly submitted that the case of a refugee proceeded against for offences under the Foreigners Act and also the Passport Act may demand a different approach from that of a 'foreigner' as such having regard to human right issues involved. But, still, since no law governing refugees has been formulated by legislation and refugees too fall within the definition of foreigner, on infringement of provisions of the Foreigners Act or the Passport Act by them, they are liable to be proceeded under the law of the land. Petitioners, whose status claimed as refugees is not disputed, were parties to the plan conceived for their illicit trafficking to a foreign country and they deserted their refugee camp, submits the Public Prosecutor. If at all bail is granted to them taking into consideration that they are refugees, and human rights issues involved, adequate conditions be imposed with directions for sending them back to refugee camp and handing them over to authorities supervising such camp asking to keep a close watch of them and make them available for investigation and also trial, submits Public Prosecutor. Commissioner of Rehabilitation of Refugees, Chepauk, Chennai is the authority to whom such directions are to be issued for making them available for investigation/trial of the case is the further submission. Learned Public Prosecutor also submits that he contacted the authorities and they have expressed readiness to take petitioners, refugees, if released on bail, to monitor and keep a watch over them and make them available for investigation/trial of the case.

5. Status of petitioners as refugees is not disputed. No legislation has been enacted by the Parliament governing the refugees so far and that being so all existing Indian laws apply to them also. Refugees too fall within the definition of "foreigner" under the Foreigners Act. Provisions of that Act and also the Orders passed thereunder apply to them also S. 2(a) of the Foreigners Act, 1946 defines a foreigner as 'a person who is not a citizen of India.' However, it is to be noticed, when issues relating to or concerning refugees arose for consideration the Apex Court emphasising that the 'right to life' enshrined under Article 21 of the Constitution mandated that no one can be deprived of his or her life and personal liberty without the due process of law, has applied the common law precepts and also the obligations arising from international law under United Nations 1951 Convention and its 1967 Protocol, though India is not a signatory to them.

6. Article 1 paragraph 2 of the United Nations 1951 Convention defines the 'refugee' thus:-

A person who owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.

Where a person is forced to leave his mother country for the reason of being persecuted for one or other reason stated under the above definition, and takes refuge in our country a number of factors have to be taken into account in considering the applicability of the laws like Foreigners Act and the Orders thereunder against such person though he too falls within the definition "foreigner" as not a citizen of India. He stands on a different footing from a foreigner or any illegal emigrant who entered the country without valid passport or travel document Though the definition 'foreigner' under the Foreigners Act takes in a refugee also the circumstances under which he was forced to leave his mother country and given the status of refugee on entry into the country, necessarily have to be given due consideration taking note that every single situation pertaining to refugees is replete with human rights as well. But all the same too much humanitarian consideration in the case of refugees is also not possible without having regard to the considerations of national security. We cannot overlook the security aspects involved, more so in the present scenario where external agencies with the aid of anti-national elements inside the country are making attempts to destabilise the foundation of the Republic. A dispassionate view having regard to the security considerations and also human rights issues involved has to be taken in matters connected with the refugees by the law enforcement agencies and more so by the courts when any issue relating to them arise for consideration.

7. The Supreme Court of India has in number of cases stayed deportation of refugees even where claim for refugees status was pending determination, provided a prima facie case has been made out for grant of 'refugees' status. In Chakma refugee case Supreme Court declared that no one shall be deprived of his or her life or liberty without the due process of law.

8. Indian Constitution does not contain any specific provision which obliges the State to enforce or implement treaties and conventions. The Supreme Court has held in a number of decisions in Gramophone Company of India Ltd v. Birendra Bahadur Pandey (MANU/SC/0187/1984 : AIR 1984 SC 667), Jolly George Varghese v. Bank of Cochin MANU/SC/0014/1980 : (1980 KLT 375 (SC) : AIR 1980 SC 470) that international convention law must go through the process of transformation into municipal law before such international law becomes internal law. The decisions are also to the effect that in a case where there is no conflict between international law and domestic law and international law sought to be applied are not in contravention of the spirit of the Constitution the court may apply international law more so when it is necessary to advance the ends of justice. If there is conflict between internal law and international law, no doubt, internal law has to prevail. Though the present proceedings is one relating to bail applied by the accused in a crime registered and pending investigation, having regard to the status of petitioners proceeded with as refugees human rights issues involved cannot at all be lost sight of, but, of course, with consideration of national security as well. When petitioners are shown to be refugees and, further, as having been lodged at earmarked refugee camp, in all probabilities, with rules and guidelines regulating their activities, the question whether they have violated such rules and thus liable to be prosecuted thereof under any law for the time being in force may also arise for consideration. Now that learned Public Prosecutor has stated that the competent authority dealing with Srilankan refugees, Commissioner of Rehabilitation of Refugees, Chepauk, Chennai has promised to receive their custody and keep a close watch over them, and make them available for investigation of the crime/trial, interests of justice, at this stage, demand handing over petitioners to such authority after their release from custody. The investigating agency has also to look into whether petitioners and other accused in the crime who have the status of refugees are liable to be prosecuted under the Foreigners Act and also the Passport Act or under any other penal law, in view of their status as refugees. No doubt the State Public Prosecutor has to give them proper legal advice having regard to the totality of the facts and circumstances involved in the case and also looking into the broader aspects involved. both human rights issues and national security in matters relating to refugees.

In the circumstances the petition is disposed with following directions.

Petitioners, both of them, shall execute bond for ` 10,000/- each for their appearance as and when directed by the court. On execution of the bonds, they shall be taken from the jail to Chennai and handed over to the Commissioner of Rehabilitation of Refugees, Chepauk, Chennai or any of his subordinate competent and authorised to receive their custody. The investigating agency shall obtain an undertaking from the Commissioner of Rehabilitation of Refugees, Chepauk, Chennai to cause production of petitioners before the Magistrate, if need be, and also for making them available for investigation or for trial of the case and produce it before the Magistrate within two weeks from the date of release and handing over of petitioners as directed above.

The directions given above have to be taken note of by the Magistrate for passing appropriate orders with respect of other accused, who have the status of refugees, but, already released on bail, if any application is moved by investigating agency for handing them over to the authority referred to above.