JUDGMENT

RAJEEV RANJAN PRASAD, J.:–

Pursuant to the order dated 11.07.2022, the Oath Commissioner is present in person and has explained to this Court the circumstances under which he had put his seal and signature on the affidavit.

2. In view of the detail discussions which took place in the Court’s proceeding, Mr. Awadhesh Kumar Pandey, learned Sr. Panel Counsel for the Union of India assisted by Mr. Radhika Raman, learned C.G.C. has given up his objections, hence, this issue needs no further consideration.

3. With the consent of learned counsel for the parties, this case has been taken up for final hearing and disposal.

4. In the present case, the petitioner is said to be a young girl aged about 26 years. She is a Canadian citizen and is said to be a well educated lady. She is an Interdisciplinary Artist and Educator from Toronto.

5. A First Information Report has been instituted against the petitioner on the basis of written report of the informant Ajay Kumar Pankaj (AFRRO, ICP, Raxaul) giving rise to Raxaul (Haraiya) P.S. Case No. 115/2021 under Section 447 of the Indian Penal Code (in short ‘IPC’), Section 14(b) of the Foreigners Act, 1946 (hereinafter ‘the Act of 1946’) and Section 52 of the Disaster Management Act, 2005 (hereinafter ‘the Act of 2005’).

6. The prosecution story as alleged is that the petitioner being a Canadian citizen entered into the country without an Indian visa. It is alleged that even though the petitioner was stopped by the immigration officer, she boarded a bus that was headed to Bettiah. The immigration officer communicated this incident to the Ramgarvah Police Station from where the petitioner was arrested and subsequently, brought to the immigration office, Raxaul. During the enquiry and verification, it was revealed that she did not possess an Indian visa.

7. It is stated that after investigation a charge-sheet has been filed against the petitioner for the alleged offences and after taking cognizance charges have been framed against her. Pursuant to the adjournment granted by a learned coordinate Bench of this Court on 05.05.2022 the petitioner has challenged the order taking cognizance as well as the order framing charge by the learned trial court vide I.A. No.1 of 2022 and I.A. No.2 of 2022 respectively. Both the interlocutory applications are under consideration with the present writ petition.

8. Learned counsel for the petitioner submits that the petitioner was travelling from Canada to Nepal on a valid visa and inadvertently crossed into the Indian border. On realizing that she had inadvertently traveled in the Indian Territory, the petitioner was taking steps to travel back into Nepal, but she was detained by the AFRRO on 31.03.2021 itself and thereafter she was arrested by the Raxaul police. Learned counsel submits that the allegations in the FIR are absurd and inherently improbable and no reasonable person can believe the same.

9. It is further submitted that Section 441 of the IPC defines criminal trespass. It is submitted that every trespass does not amount to a trespass within the meaning of Section 441. There is no allegation that the petitioner entered into the Indian territory with an intention to commit an offence. There is no allegation at all in the complaint that the petitioner had any intention to trespass into India.

10. It is further submitted that Section 14(b) of the Act of 1946 gets attracted when there is any violation of VISA conditions granted by the Indian authority. Since the records reflects that the petitioner was not issued a VISA by Indian authority, hence the question of violating any VISA conditions does not arise.

11. It is further submitted that the contents of the FIR prima-facie does not disclose any offence under Section 52 of the Act of 2005. Learned counsel submits that to make out a case under the Act of 2005 it is necessary to show that there is firstly a false claim and secondly the purpose of the false claim is to obtain a benefit. It is submitted that by no