Safina Nakanyike Vs State of Karnataka

SAFINA NAKANYIKE D/O NAKANYIKE AGED ABOUT 26 YEARS PRESENT AT, VENKATESHWARA NILAYA NO-6 AND 7, 3^RD CROSS B.T.R GARDEN, KOODLU MAIN ROAD BANGALURU CITY PIN – 560 068.

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…PETITIONER

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(BY SRI BASAVARAJU T. A., ADVOCATE)

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AND:

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Digitally signed by SANJEEVINI J KARISHETTY

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Location: High Court of Karnataka

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STATE OF KARNATAKA BY PARAPPANA AGRAHARA POLICE STATION BANGALORE CITY REPRESENTED BY STATE PUBLIC PROSECUTOR PUBLIC PROSECUTOR OFFICE HIGH COURT BUILDING HIGH COURT OF KARNATAKA AMBEDKAR VEEDHI AT BENGALURU PIN – 560 001.

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SOWMYA N., POLICE INSPECTOR AGED ABOUT 36 YEARS CCB WOMAN PROTECTION FORCE N.T. PETE

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BENGALURU CITY PIN – 560 002.

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THE FOREIGNERS REGIONAL REGISTRATION OFFICE (FRRO) 5^TH FLOOR, ‘A’ BLOCK TTMC, BMTC BUS STAND BUILDING K.H.ROAD, SHANTINAGAR BENGALURU – 560 027.

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…RESPONDENTS

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(BY SRI B.N.JAGADEESHA, ADDL. SPP FOR R1 AND R2; SRI SHANTHI BHUSHAN H., DSGI FOR R3)

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THIS CRL.P IS FILED U/S 528 BNSS PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN RESPECT OF CRIME NO.105/2024 OF PARAPPANA AGRAHARA P.S. FOR AN OFFENCE U/S. 370 OF IPC, AND SEC.3, 4, 5, 6, 7 OF I.T.P ACT, WHICH IS PENDING ON THE FILE OF HON’BLE LXXI ADDL. CITY CIVIL AND SESSIONS AT BENGALURU CITY (CCH-72) IN S.C.NO.547/2024.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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Petitioner – accused No.1 is before this Court calling in question proceedings in S.C.No.547/2024 (arising out of Crime No.105/2024), pending before the LXXI Additional City Civil and Sessions Court (CCH-72), Bengaluru, for the offences under Sections 370 of the IPC and Sections 3, 4, 5, 6, 7 of the Immoral Traffic (Prevention)] Act, 1956.

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Heard Sri T.A.Basavaraju, learned counsel for petitioner, Sri B.N.Jagadeesha, learned Additional State Public Prosecutor for respondent Nos.1 and 2 and Sri Shanthi Bhushan H., learned Deputy Solicitor General of India for respondent No.3.

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On a credible information by the police on 15.02.2023, that at a house bearing No.10, Sri Venkateshwara Nilaya, 3^rd Cross, Koodly Main Road, few persons are indulging in prostitution, the police conduct raid at 4.30 p.m., and arrested the petitioner and others. A crime is then registered on the score that a brothel is being run at the said place by the petitioner and other three women. The accused have

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confessed that they are all part of the running of the brothel. The victim and the accused were taken into custody. Investigation ensue and a charge sheet is filed before the concerned Court. The concerned Court commits the proceedings to the Courts of Session. The matter is now pending in S.C.No.547/2024. The petitioner was granted bail on 01.09.2025. Despite granting bail, a memo is filed by the petitioner before the concerned Court praying that she is unable to lead life in Bengaluru and she wants to go back to her country - Uganda and therefore, seeks a direction to the FRRO to send her back to her country and till then, she may be remanded to detention centre. In the absence of the witness of the prosecution as on the date, the plea of the petitioner is not taken note of by the concerned Court. Therefore, the petitioner is before this Court pleading that her Visa documents have expired and admits that she is staying illegally and want to go back to her country - Uganda.

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Learned counsel for the petitioner would take this Court through the averments made in the subject criminal petition and submits that the petitioner is wanting to go back to

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her country and till such time, the petitioner shall be remanded

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in detention centre at FRRO.

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Sri Shanthi Bhushan H., learned Deputy Solicitor General of India appearing for respondent No.3 – the Foreigners Regional Registration Office would submit that steps will be taken in terms of the Model Standard Operating Procedure (‘SOP’ for short).

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The Additional State Public Prosecutor representing the respondent – State would also submit that in terms of the Standard Operating Procedure, if prosecution is withdrawn, the petitioner can be consequently remanded to the FRRO.

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I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the material on record.

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The afore-narrated facts are not in dispute. The petitioner is the victim of prostitution and hails from Uganda. She was taken into custody along with three other women and had confessed that she is a part of running brothel and therefore, the afore-quoted offences sprang. She was granted

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bail but is not in a position to comply with the conditions of surety and therefore, she is not been released. Though the concerned Court has already granted bail, the petitioner cannot be set at liberty only on the ground of want of surety.

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The plea of the petitioner before this Court is that, she wants to go back to her country. The issue would be whether pending prosecution against the petitioner for the afore-quoted offences, can the petitioner be sent back to her country - Uganda. The Government of India on 25.11.2025, has issued a Standard Operating Procedure, governing the withdrawal of prosecution in cases involving foreign nationals, with the avowed objective of facilitating their deportation. The preamble to the said SOP records circumstances which necessitated its formulation. The preamble is as follows:-

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“ I am directed to say that misuse of legal procedures by certain foreign nationals who intentionally implicate themselves in criminal offences to delay deportation or gain prolonged stay in the India has been observed by the Law Enforcement Agencies in various States/UTs. Once the case is registered, these foreigners use various legal and procedural tactics viz., repeated adjournments sought on medical grounds, change of counsel, filing frivolous applications before the trial Court such as bail & discharge, absconding between hearings, claiming refugee status on frivolous ground during pending trial and by challenging various

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stages of trial procedure in higher courts. These tactics have often resulted in prolonged under trial detention or bail with restrictions, effectively allowing them to remain in India for years and expand their criminal activities, gangs and organized crimes in the country.

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2. This matter came up for consideration at the DGsP/IGsP Conference, 2024, when it was inter alia decided that a comprehensive policy/legal framework to prevent misuse of judicial process by foreigners to overstay may be formulated by the Ministry of Home Affairs, in consultation with all stakeholders. It was further decided that the policy may examine withdrawal of cases where punishments were less than 7 years to facilitate deportation.

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3. Accordingly, the matter regarding framing of a model Standard Operating Procedure (SOP) for withdrawal from prosecution in cases filed against foreigners to facilitate their deportation has been examined by this Ministry in consultation with various stakeholders. Based on the inputs received from various stakeholders, a model SOP has been prepared in this regard within the framework of Section 360 of Bharatiya Nagrik Suraksha Sanhita, 2023 (46 of 2023) and a copy of the same is enclosed.

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4. The model SOP indicates the types of cases where withdrawal from prosecution may be considered against the foreigners, types of cases where such withdrawal from prosecution may not be considered and the detailed procedure that may be followed by State/UT prosecuting agencies and central prosecuting agencies for withdrawal from prosecution in such cases. Review of such cases by two Committees i.e., one District Level Screening Committee and another State Level Screening Committee in cases filed by State/UT prosecuting agencies is envisaged in the model SOP. In cases filed by central prosecuting agencies, it has been suggested that they may consider constituting an Agency Screening Committee to review such cases.

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5. The objective of this model SOP is to prevent misuse of the judicial process by foreigners to prolong their stay in India. This will facilitate early deportation of such foreigners from the country and will also help in conservation of valuable judicial resources.

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6. State/UT prosecuting agencies and central prosecuting agencies are advised to consider adopting the enclosed model SOP, by taking approval of the respective competent authorities, for withdrawal from prosecution in respect of cases filed against foreigners. Steps taken in this regard may please be intimated to this Ministry at the earliest.”

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(Emphasis supplied)

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It is observed that certain foreign nationals have been misusing the legal process of the country by deliberately implicating themselves in criminal proceedings, so as to thwart or delay deportation and thereby prolong their stay within the territory of India. The background to bring in the SOP reads as follows:

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“1. Background

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Misuse of legal procedures by certain foreign nationals who intentionally implicate themselves in criminal offences to delay deportation or gain prolonged stay in India has been observed by the Law Enforcement Agencies in various States/UTs. Once the case is registered, these foreigners use various legal and procedural tactics viz., repeated adjournments sought on medical grounds, change of counsel, filing frivolous applications before the trial Court such as bail & discharge, absconding between hearings, claiming refugee status on frivolous ground during pending

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trial and by challenging various stages of trial procedure in higher courts. These tactics have often resulted in prolonged under-trial detention or bail with restrictions, effectively allowing them to remain in India for years and expand their criminal activities, gangs and organized crimes in the country.

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In the DGsP/IGsP Conference, 2024, it was inter-alia decided as under:

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“A comprehensive policy/legal framework to prevent misuse of judicial process by foreigners to overstay, to be formulated by MHA, in consultation with all stakeholders, including MEA, IB and legal officers. The policy would examine withdrawal of cases where punishments were less than 7 years, to facilitate deportation.”.”

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The types of cases where withdrawal of prosecution is to

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be considered are as follows:

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“3. Types of cases where withdrawal from prosecution may be considered against the foreigners.

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(i) An offence registered under the Bharatiya Nyay Sanhita, 2023 (45 of 2023) which is compoundable under Section 359 of the Bharatiya Nagarik Suraksha Sanhita, 2023(Act 46 of 2023).

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(ii) An offence registered under the Bharatiya Nyay Sanhita, 2023 (45 of 2023) which carries a punishment of imprisonment of up to 7 years.

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(iii) An offence registered under any Central Act, including the Immigration and Foreigners Act, 2025 (13 of 2025) and its predecessor Acts, but other than Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 (61 of 1985) or any State Act which is compoundable and/or where the punishment provided for the offence in the Act is imprisonment of up to 7 years.

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(iv) An offence under the NDPS Act which carries a punishment of imprisonment up to ten years.

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(v) Cases involving inexpediency of prosecution where trial is pending for more than five years.”

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(Emphasis supplied)

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In the light of the afore-quoted Standard Operating Procedure, steps be taken to deport this petitioner after withdrawal of the prosecution and if the Standard Operating Procedure would not permit deportation, the prosecution shall continue against the petitioner.

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For the aforesaid reasons, the following:

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ORDER

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(i) Criminal Petition is disposed .

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(ii) The respondent – State shall follow the procedure in terms of the Standard Operating Procedure and after the crime is withdrawn, the petitioner shall be handed over to the FRRO of

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the jurisdiction, to take further steps against the

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