Case Summary: Aizaz Kilicheva @ Aziza @ Maya v. State NCT of Delhi (2025) | Bail for a Foreign National

The case revolves around the bail application of a foreign national, Aizaz Kilicheva, under judicial custody for alleged violations of the Foreigners Act, 1946 and the Indian Penal Code (IPC).

Case Title: Aizaz Kilicheva @ Aziza @ Maya v. State NCT of Delhi

Court: High Court of Delhi, New Delhi

Citation: Bail Application. 1872/2024

Bench: Hon’ble Justice Anup Jairam Bhambhani

Date of Judgment: 21st January 2025

Background

FIR and Allegations:

• FIR No. 148/2022 was registered on 22nd July 2022 under the Immoral Traffic (Prevention) Act, 1956 (ITP Act), later expanded to include sections of the IPC (e.g., 370, 419, 420) and section 14 of the Foreigners Act.
• The petitioner allegedly entered India illegally and overstayed beyond her visa's validity.
• She was implicated in a human trafficking and prostitution racket operating in Delhi and Gurugram.

Prosecution Claims:

• The prosecution alleged the petitioner collaborated with co-accused persons, running cross-border trafficking and exploiting foreign women for sex work.
• During a raid, several foreign-origin women were discovered in premises linked to the petitioner, but no valid travel documents were produced.

Framing of Charges:

• The trial court ultimately charged the petitioner under section 14 of the Foreigners Act (illegal stay in India) and section 174-A of IPC (failure to appear in court despite legal summons).
• The prosecution acknowledged no material evidence supporting graver charges like human trafficking against her.

Issue

Can the court direct the authorities to issue a visa enabling a foreign national to remain in India while participating in pending criminal proceedings?

Petitioner’s Submissions

The petitioner, represented by her counsel, argued:

1. False Implication: She was lured to India by individuals promising a work visa, who then took her passport and money under false pretences.
2. Judicial Custody Duration: She had been in custody since July 2023, amounting to approximately 1.5 years, exceeding the probable sentence for the charges.
3. Bail Eligibility: The charges attract a maximum punishment of five years, and no evidence suggests she might flee or tamper with the trial. Her passport remains with the court.
4. Executive Detention Concerns: If granted bail, placing her in a detention center under the Foreigners Act would render the bail ineffective, defeating the purpose of liberty.

The petitioner expressed readiness to regularize her visa status by applying to the Foreigners Regional Registration Office (FRRO) post-release.

State’s and FRRO’s Submissions

Prosecution's Position:

• The petitioner had overstayed her visa by several years and was allegedly involved in illegal activities, including human trafficking and cross-border exploitation.
• The FRRO argued that the petitioner’s entry into India violated section 14-A of the Foreigners Act, which entails stricter penalties, including 2-8 years imprisonment.

Visa Policy and Detention:

• The FRRO emphasized its authority under section 3 of the Foreigners Act, enabling the government to regulate foreign nationals' entry, stay, and departure.
• It stated that visa issuance for individuals facing trial (like the petitioner) has been discontinued under its policy.
• It cited legal precedents to assert that courts cannot direct the executive to issue visas, as immigration matters fall under sovereign executive functions.
• Previous Judgments:

The FRRO referenced pending Supreme Court appeals challenging the ruling in Emechere Maduabuchkwu vs. State (NCT of Delhi), which prohibited executive detention after bail for foreign nationals.

Court’s Analysis

Justice Anup Jairam Bhambhani delineated the distinction between judicial custody and executive detention:

Judicial Custody:

• The petitioner’s continued detention in jail was unnecessary, as the investigation was complete, and the charges framed were relatively minor.
• The petitioner deserved regular bail based on judicial principles, given her cooperation with the investigation and absence of evidence indicating flight risk.

Executive Detention:

• Executive detention arises from the sovereign power of the Central Government under the Foreigners Act, independent of judicial orders.
• Courts cannot interfere with executive decisions to detain foreign nationals or mandate visa issuance.

Bail and Detention Centers:

Bail allows release from judicial custody; however, foreign nationals may still face detention under the Foreigners Act if deemed necessary by the executive.

The court clarified that granting bail does not preclude the executive from detaining the petitioner at a detention centre for visa violations.

Twofold Analysis:

The case involved two distinct aspects:

• Criminal proceedings for past visa violations, for which the petitioner was in judicial custody.
• The petitioner’s ongoing illegal stay in India without a valid visa, warrants executive measures under the Foreigners Act.

Judgment

The court ordered the following:

Bail Granted:

• The petitioner was granted bail, subject to furnishing a personal bond of Rs. 50,000 with two local sureties, one of whom must be a family member.
• She must not leave the National Capital Region (NCR) without court permission and must reside at the address on record.
• Additional conditions included surrendering her passport, refraining from contacting witnesses and maintaining a functional phone number.

FRRO’s Authority Affirmed:

• The court emphasized that its jurisdiction did not extend to directing the FRRO to issue or renew visas. The petitioner could apply for visa regularization, but the executive retained discretion over the matter.

Clarification on Future Actions:

• The Central Government was authorized to take appropriate action under section 3 of the Foreigners Act, including executive detention, if necessary, while adhering to due process.

Fair Trial Assurance:

• The petitioner’s presence in India was essential for the pending trial, and she could not leave the country without prior court approval.

Key Takeaways

1. Judicial Custody v. Executive Detention: The case underscored the nuanced distinction between judicial custody for criminal prosecution and executive detention for immigration violations.
2. Limited Judicial Role in Immigration Matters:
   The court reaffirmed that visa issuance and immigration enforcement fall within the sovereign authority of the executive branch.
3. Balancing Liberty and Sovereignty: While granting bail ensured the petitioner’s liberty during trial, the court recognized the government’s prerogative to address visa and immigration concerns independently.
4. Policy Implications: The judgment highlighted gaps in immigration policies concerning under-trial foreign nationals and emphasized the need for procedural clarity.

Click Here to Read the Official Judgment

This judgment demonstrates a careful balance between individual rights and sovereign functions, providing a roadmap for handling similar cases involving foreign nationals under trial in India.