Common Order

Petitioner in Crl.M.C.No.1561/2007 is the second accused in C.C.No.1623/2005 on the file of Judicial First Class Magistrate's Court, Varkala. Petitioners in Crl.M.C.No.2127/2007 are accused 1 and 2 in C.C.No.13/2007 on the file of Chief Judicial Magistrate's Court, Ernakulam. The petitioners are being tried for the offence under Foreigners Act, 1946. These petitions are filed under Section 482 of Code of Criminal procedure to quash the proceedings as against the petitioners contending that even if the prosecution case is accepted, no offence as alleged is made out.

2. Prosecution case in C.C.No.1623/2005 on the file of Judicial First Class Magistrate's Court, Varkala is that, in violation of the law that when accommodation is provided to a foreigner in a hotel or resort, that fact is to be reported to the police by the keeper of the hotel or resort, petitioner/second accused, who is the owner of Eden Garden Resorts, did not furnish Form-C as prescribed and instead kept it at the resort itself and thereby the accused committed an offence under Section 7 read with Section 14 of Foreigners Act. Prosecution case in C.C.No.13/2007 on the file of Chief Judicial Magistrate's Court, Ernakulam is that first petitioner/first accused, who is the licencee of Dwaraka Hotel and second petitioner/second accused, its full time Director and third accused, the Receptionist, did not report to the police that two Srilankan citizens resided in Room No.304 of Dwaraka Hotel from 3.11.2006 till the night of 4.11.2006 and thereby committed offence under Section 7 read with Section 14 of Foreigners Act.

3. Case of the petitioners is that though under Section 7 of Foreigners Act, the hotel keeper of any premises, where, lodging or sleeping accommodation is provided, has an obligation to furnish the information regarding the foreigners accommodated, as prescribed under the Act or the Rules framed thereunder, no form is prescribed and so petitioners cannot be prosecuted for the failure to report the fact in the prescribed form, in the absence of a specific case that the fact was not reported. It was pointed out that the case of the prosecution in C.C.No.1623/2005 is only that Form-C was kept at the resort itself and not that the residence was not reported and in C.C.No.13/2007, the case is only that the residence of the foreign citizens was not reported in the prescribed form and not that the fact was not reported at all. It was also contended that prescribed Form-C was provided only under Registration of Foreigners Rules framed under Registrations of Foreigners Act, 1939 and if there is any violation of the said Rule, petitioners could be prosecuted only for the offence under Section 5 of Registration of Foreigners Act and not under the Foreigners Act and hence, the cases are to be quashed.

4. Learned senior counsel appearing for the petitioners in Crl.M.C.No.2127/2007 and learned counsel appearing for the petitioner in Crl.M.C.No.1561/2007 and learned Director General of Prosecutions were heard.

5. Learned counsel appearing for the petitioners pointed out that though under Section 3 of Foreigners Act Central Government is competent to make provisions in respect of all foreigners regulating or restricting their entry into India or their presence, Foreigners Order, 1948, made under Section 3, does not contain any provision for furnishing a report as provided under Section 7 of the Foreigners Act and no form is prescribed and

definition contained in Section 2(b) shows that 'prescribed' means, prescribed by orders made under the Act. It was argued that the obligation provided under Section 7 is only to report as prescribed and in the absence of a prescribed form, petitioners cannot be prosecuted for failure to report in a particular form. Learned senior counsel also pointed out that the allegation in the final report in C.C.No.13/2007 is only that there was failure to report as prescribed and therefore, prosecution of the petitioners