It is entirely in the fitness of things that the Karnataka High Court in a learned, laudable, landmark, logical and latest judgment titled Emeka James Iwoba and Anr vs State of Karnataka and cited in Criminal Petition No.11347 of 2025 that was reserved on 05.02.2026 and then finally pronounced on 04.03.2026 has mandated enforcement of Standing Operating Procedure (SOP) to ensure foreigners don’t avoid deportation by citing pending criminal cases. The Court has ordered the time-bound formation of district and State level screening committees under the SOP introduced by the Central Government in 2025. In this regard, it would be pertinent to note that the Karnataka High Court has issued directives to ensure the implementation of a SOP introduced by the Union government to tackle cases where foreign nationals without a valid visa avoid deportation and overstay in India by citing criminal cases pending against them.
It must be laid bare that the Single Judge Bench comprising of Hon’ble Mr Justice M Nagaprasanna has ordered the State to form district and State-level screening committees under the 2025 SOP within four months. It was clearly held by the Court that, “The SOP and the constitution of the Committee is to ensure that valuable judicial resources are not squandered in prosecutions that ultimately serve only to facilitate overstays.” It is worth paying singular attention that the direction was issued by the Bench while quashing the arrest of two Nigerian nationals in a drug case after finding that the grounds of arrest were not properly furnished. While stating that the right guaranteed under Article 22(1) of the Constitution, against the arrest of a person without being informed about the grounds of arrest extends even to foreign nationals, the Karnataka High Court has ordered the release of two Nigerian nationals as the grounds for their arrest were contrary to Supreme Court’s guidelines. But in the same vein, the Bench also directed the authorities to deport them immediately after they were released as they were overstaying in India for over a decade without a visa but for the reason that they were involved in criminal case. The Bench passed the order while allowing the petition that had been filed by Emeka James Iwoba, 39, alias Austin Noso Iwoba and Uderike Fidelis, 34, who had challenged the legality of their arrest by the Bengaluru City Police in May 2024. They were arrested on charges of possessing narcotic substances and violation of the Foreigners Act.
At the very outset, this robust judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice M Nagaprasanna of High Court of Karnataka at Bengaluru sets the ball in motion by first and foremost putting forth in para 1 that, “Petitioners, two in number, are citizens of Nigeria and are at the doors of this Court calling in question an order of remand to judicial custody on the score that the petitioners were not provided with the grounds of arrest at the time when they were taken into custody, particularly in the language known to them.”
To put things in perspective, the Bench envisages in para 3 while elaborating on the factual background stating that, “Facts adumbrated are as follows: –
A crime comes to be registered in Crime No.272 of 2024 on 12-05-2024 for offences punishable under Sections 8(c) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’ for short) and Section 14 of the Foreigners Act, 1946. The crime is registered by the 2nd respondent on the credible information received by the defacto complainant that the accused are selling contraband substances such as MDMA crystals and cocaine to their customers – software employees and college students, and are allegedly earning money out of it. The accused are arrested upon the registration of the subject crime. The informant and the panchas have recovered the contraband substance i.e., MDMA crystals weighing 400 grams and cocaine weighing 100 grams. They are said to have been taken into custody on 12-05-2024 at 7.00 p.m. and produced before the concerned Court on 13-05-2024 at about 7.15 p.m. and remanded to judicial custody. The petitioners are accused Nos.1 and 3 in the subject crime, and are before the Court seeking setting aside of the arrest and remand on the ground that they were not informed of grounds of arrest by the law enforcing agency and were not produced before the learned Magistrate within 24 hours as contemplated under the Cr.P.C., and the Constitution of India.”
Most significantly, the Bench encapsulates in para 17 about SOP what constitutes the cornerstone of this notable judgment postulating precisely that, “The Government of India has now ushered in a SOP dated 25-11-2025, 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:-
“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 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.
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.
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.
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.
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.
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.” (Emphasis supplied)
The types of cases where withdrawal of prosecution is to be considered are as follows:
“3. Types of cases where withdrawal from prosecution may be considered against the foreigners.
(i) An offence registered under the Bharatiya Nyaya Sanhita, 2023 (45 of 2023) which is compoundable under Section 359 of the Bharatiya Nagarik Suraksha Sanhita, 2023(Act 46 of 2023).
(ii) An offence registered under the Bharatiya Nyaya Sanhita, 2023 (45 of 2023) which carries a punishment of imprisonment of up to 7 years.
(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.
(iv) An offence under the NDPS Act which carries a punishment of imprisonment up to ten years.
(v) Cases involving inexpediency of prosecution where trial is pending for more than five years.”
(Emphasis supplied)
Clause (iv) of the clauses under the head ‘types of cases where withdrawal from prosecution may be considered’ notices that even offences under the NDPS Act which carries a punishment of imprisonment up to 10 years can become the consideration under the SOP supra for withdrawal of the prosecution and consequent deportation. The procedure for the said process is found in Clause 5.
The following procedure may be followed by central prosecuting agencies for withdrawal from prosecution in cases filed against foreigners:-
(i) Director General/Director of a central prosecuting agency may designate
prosecution wing or any other wing within agency as “Nodal Wing” for this purpose and may maintain proper records of cases filed against foreigners.
(ii) Director General/Director of a central prosecuting agency may constitute an Agency Screening Committee (ASC) to suo moto review every quarter all such cases where withdrawal from prosecution against foreigners can be considered in terms of paras 3 and 4 above. An officer, as nominated by Commissioner Bureau of Immigration, may be a member of such committee.
(iii) ASC may examine the cases thoroughly taking into account merits and demerits of each case. It may carefully analyse the implications, both in the national and international context. ASC may record a reasoned written opinion, supported by legal grounds, public interest justification etc.
(iv) ASC may forward its recommendation to Director General/Director of the central prosecuting agency, who in turn may take final decision in cases involving offences punishable up to a period of 3 years, on withdrawal from prosecution, after the internal or any other consultations as required. The other cases may be forwarded, with due recommendations, to the Administrative Ministry/Home Ministry, as required, for taking decision on withdrawal of cases against foreigners, based on recommendations received and after due consultations, as required.
(v) After decision as above, the “Nodal Wing” of the central prosecuting agency may convey the consent for withdrawal from prosecution to the public prosecutor in charge of the case. Thereafter, the public prosecutor may file an application under section 360 of the BNSS 2023 before the trial court concerned.
(vi) Withdrawal from prosecution shall be effective only upon consent of the competent trial court under section 360 of BNSS, 2023.”
(Emphasis supplied)”
The SOP, right from its preambular statement, records a disturbing trend. Foreign nationals once implicated in criminal proceedings were resorting to variety of procedural stratagems such as, repeated adjournments on medical grounds, frequent change of legal representation, filing of frivolous applications, absconding between hearings and raising untenable claims of refugee status. These tactics often culminated in protracted trial. Recognizing the said gravity, the deliberations have led to the bringing in of the SOP. The SOP also recognizes rather prescribes, an institutional mechanism to scrutinize such cases. It mandates the constitution of District Level Screening Committee and a State Level Screening Committee to examine the feasibility of withdrawing prosecutions instituted by the State or any prosecuting agency. The Home Department of the State or the Union Territory is assigned a supervisory role.”
It is worth noting that the Bench notes in para 18 that, “Equally significant is the SOP’s recognition that withdrawal of prosecution may extend even to cases where appeals against acquittals are pending. The SOP further reiterates that deportation of foreign nationals, lacking valid travel documents, must be carried out in accordance with the extant guidelines of the Ministry of Home Affairs.”
Most remarkably, the Bench then propounds in para 19 directing and holding that, “The State Government shall now undertake the entire exercise of constituting a State Level Committee and the District Level Screening Committee, as is observed in the SOP supra, within four months from the date of receipt of the copy of this order, as the SOP and the constitution of the Committee is to ensure that valuable judicial resources are not squandered in prosecutions that ultimately serve only to facilitate overstays. The steps taken towards the constitution of the Committee shall be reported back to this Court, notwithstanding the disposal of the subject petition.
SUMMARY OF FINDINGS:
• Article 22(1) of the Constitution of India mandates that every person arrested must be informed of the grounds of arrest.
• The requirement of informing the grounds of arrest is a mandatory Constitutional safeguard and not a procedural formality.
• The Constitutional protection under Article 22 extends to all persons within the territory of India including the foreign nationals, as it is not citizen centric, but person centric.
• The law does not prescribe a rigid form of communicating grounds of arrest. Substantial compliance is sufficient, provided the arrested person is made aware of the basis of the arrest.
• The judicial review in such cases is limited to whether grounds of arrest were communicated and not the adequacy or correctness of the grounds of arrest.
• Finding violation of the mandate of the Apex Court qua the grounds of arrest, the petitioners are entitled to be set at liberty.
• The moment the petitioners are set at liberty, they must be handed over to the FRRO, to take further action, in terms of the SOP, for withdrawal of the prosecution and consequent deportation of these petitioners, as they are admittedly overstaying in this country for more than 10 years, without any valid documents, only on the score that one or the other prosecution is pending against them and the present case concerns recovery of 400 gms. of MDMA from the hands of the petitioners.”
Resultantly and finally, the Bench then concludes by directing and holding in para 20 that, “For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed in part.
(ii) The petitioners are entitled to be set at liberty on the grounds of arrest not being served upon them in a manner known to law.
(iii) The petitioners on them being set at liberty be handed over to the FRRO of the jurisdiction, to take further steps against the petitioners for overstaying, without any valid documents, for more than a decade, in terms of the SOP.
(iv) The State shall constitute the State Level Screening Committee/District Level Screening Committee, as is found in the SOP and report such constitution to this Court within 4 months from the date of receipt of the copy of this order.
This Court places its deep appreciation to the valuable assistance rendered by Sri H Shanthi Bhushan, learned Deputy Solicitor General of India.”
Sanjeev Sirohi