Orissa High Court
Abu Sahik @ Sahid @ Abu vs State Of Odisha … Opposite Party on 19 May, 2026
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.11193 OF 2025
(In the matter of application under Section 483 of
BNSS).
Abu Sahik @ Sahid @ Abu ... Petitioner
Saeid Howladar @ Md.Abu
Saeed Howladar
-versus-
State of Odisha ... Opposite Party
For Petitioner : Mr. B.P.Tripathy,Sr. Advocate
along with Mr.P.Agarwal,
Advocate
For Opposite Party : Mr. P. Satpathy, Addl. PP
CORAM:
JUSTICE G. SATAPATHY
DATE OF HEARING : 19.05.2026
DATE OF JUDGMENT : 19.05.2026
G. Satapathy, J.
1. 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.
BLAPL No.11193 of 2025 Page 1 of 38
2. 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
BLAPL No.11193 of 2025 Page 2 of 38
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
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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,
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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.
3. 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.
4. 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,
BLAPL No.11193 of 2025 Page 5 of 38
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
BLAPL No.11193 of 2025 Page 6 of 38
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.
5. 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
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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:-
BLAPL No.11193 of 2025 Page 8 of 38
3. 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.
6. 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
BLAPL No.11193 of 2025 Page 9 of 38
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.
7. 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
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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.
8. 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
BLAPL No.11193 of 2025 Page 11 of 38
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
BLAPL No.11193 of 2025 Page 12 of 38
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
BLAPL No.11193 of 2025 Page 13 of 38
be the duty of such person to inform the nearest police
station, within 24 hours, about the presence of such
foreigner.
9. 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.
10. On coming back to the third issue of the
procedure to be adopted during inquiry, investigation & trial
BLAPL No.11193 of 2025 Page 14 of 38
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
BLAPL No.11193 of 2025 Page 15 of 38
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
BLAPL No.11193 of 2025 Page 16 of 38
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
BLAPL No.11193 of 2025 Page 17 of 38
Nationals, unless the same is barred or contrary to any
special law.
11. 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
BLAPL No.11193 of 2025 Page 18 of 38
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;
BLAPL No.11193 of 2025 Page 19 of 38
(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;]
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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)”.
12. 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,
BLAPL No.11193 of 2025 Page 21 of 38
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
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(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”.
BLAPL No.11193 of 2025 Page 23 of 38
13. 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
BLAPL No.11193 of 2025 Page 24 of 38
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
BLAPL No.11193 of 2025 Page 25 of 38
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
BLAPL No.11193 of 2025 Page 26 of 38
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.
14. 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
BLAPL No.11193 of 2025 Page 27 of 38
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)
BLAPL No.11193 of 2025 Page 28 of 38
15 SCC 337 for the children and women kept in such
centers.
15. 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
BLAPL No.11193 of 2025 Page 29 of 38
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.
16. 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
BLAPL No.11193 of 2025 Page 30 of 38
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 releaseBLAPL No.11193 of 2025 Page 31 of 38
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.
41. 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).
59. 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”.
17. 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
BLAPL No.11193 of 2025 Page 32 of 38
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.
18. For imposing appropriate condition while
granting bail to a foreigner/illegal immigrant, in Frank
BLAPL No.11193 of 2025 Page 33 of 38
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.
19. 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,BLAPL No.11193 of 2025 Page 34 of 38
(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.
20. 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
BLAPL No.11193 of 2025 Page 35 of 38
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
BLAPL No.11193 of 2025 Page 36 of 38
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
BLAPL No.11193 of 2025 Page 37 of 38
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).
20. 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.
(G. Satapathy)
Judge
Signature Not Verified
Digitally Signed
Signed by: JAYAKRUSHNA DASH
Reason: AuthenticationOrissa High Court, Cuttack,
Location: High Court of Orissa, Cuttack th
Dated the 19 May, 2026/Jayakrushna
Date: 21-May-2026 15:30:23
BLAPL No.11193 of 2025 Page 38 of 38
