Bail for Foreign Nationals in India: Conditions, Passports and the Supreme Court's 2024 Ruling

Foreign nationals are entitled to bail like anyone else

The bail provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) apply to every person, whatever their nationality. Being a foreigner is not, by itself, a ground to refuse bail. What changes is the court's assessment of the risk that the accused will leave India and not return for trial, which affects the conditions imposed rather than the right to apply.

Frank Vitus v. Narcotics Control Bureau (2024)

In July 2024, the Supreme Court held that a bail condition requiring a foreign national to obtain a certificate of assurance from their embassy, that they will not leave India, cannot be imposed as a rule, because the grant of bail cannot be made to depend on the action of a foreign government. The Court also held that a condition requiring the accused to share live location through a mapping application with the investigating officer violates the right to privacy. The Court suggested that the trial court inform the registration authority under the foreigners law when bail is granted, so that the person's movements can be watched lawfully.

Conditions courts commonly impose

• Surrender of the passport to the court
• One or two sureties, often required to be Indian residents with property or a fixed address
• Residence at a stated address and reporting to the police station or the court
• Not leaving the jurisdiction or India without the court's permission
• Intimation to the Foreigners Regional Registration Office or the registration officer

Visa expiry and the foreigners law

A foreign national on bail may find that their visa expires during the trial. Since 2025, entry, stay and exit of foreigners are governed by the Immigration and Foreigners Act, 2025, which replaced the Foreigners Act, 1946, the Passport (Entry into India) Act, 1920 and related laws. Extension of stay or a change of visa category is sought from the immigration authorities, usually on the strength of the court's order requiring the person to remain in India for trial.

Consular access

Under Article 36 of the Vienna Convention on Consular Relations, 1963, an arrested foreign national has the right to have their consulate informed without delay and to communicate with consular officers. The family can also inform the embassy directly. Consular officers may visit the person in custody, though they cannot act as the person's lawyer in court.

Where bail is sought

Bail is sought first before the Magistrate or Sessions Court, depending on the offence, and then before the High Court. For arrests in Bihar, including at the border districts, the High Court is the Patna High Court. Special statutes such as the NDPS Act, 1985 apply their own stricter conditions in addition.