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IN THE HIGH COURT OF KERALA AT ERNAKULAM
BECHU KURIAN THOMAS, J.
EGADWA MERCY ADAMBA D/O MACLOUD IGADWA – Petitioner
Versus
STATE OF KERALA – Respondent
Crl. M.C. Nos. 6618, 6168 of 2024
Decided On : 09-09-2024
Foreigners - Foreigners Act, 1946 - Sections 14, 14A; Passports Act, 1967 - Sections 12(1A) - The court distinguished between sections 14 and 14A of the Foreigners Act, emphasizing that valid entry negates the application of section 14A, leading to the quashing of charges under it.
Fact of the Case:
Four foreign nationals entered India with valid visas and passports but overstayed. They faced prosecution under the Foreigners Act and the Passports Act for failing to produce valid documents when demanded.
Finding of the Court:
The court found that the petitioners had entered India legally and could not be prosecuted under section 14A of the Foreigners Act, as their initial entry was valid. The inclusion of section 12(1A) of the Passports Act was also deemed inappropriate.
Issues: Whether section 14A of the Foreigners Act applies to foreign nationals who entered India with valid documents but overstayed their visa.
Ratio Decidendi: The court held that section 14A applies only to those who enter without valid documents, while section 14 applies to those who overstay after legal entry. The distinction is crucial for determining the applicable legal provisions.
Result: Prosecution under section 14A of the Foreigners Act and section 12(1A) of the Passports Act is quashed.
ORDER :
1. The distinction between section 14(a) and section 14A of the Foreigners Act, 1946 arises for consideration in these two cases. The question that requires resolution is whether section 14A of the Foreigners Act, 1946 would be attracted in cases where a foreign national had entered India with a valid passport and visa but had overstayed beyond the period permitted. Since the issues are identical, these cases are being disposed of through this common judgment.
2. Petitioners in these two petitions are four foreign nationals. The two petitioners in Crl. M.C. No. 6168/2024 hail from Uganda and Kenya respectively, while both petitioners in Crl. M.C. No. 6618 of 2024 are Kenyan Nationals. Petitioners are facing prosecution for the offences under the Foreigners Act, 1946 (hereafter referred to as ‘the Act’), apart from offences under the Passports Act, 1967 (for short ‘the Passports Act’).
3. The prosecution alleges that the accused entered India with a tourist visa and continued their stay even after the expiry of their visa as well as their passports.
4. In Crl. M.C. No. 6168/2024, the petitioners are the accused in C.C. No. 183/2024 on the files of Judicial First Class Magistrate’s Court-III, Ernakulam, which arises from Crime No. 233/2024 of Cheranalloor Police Station. The specific allegation against the first petitioner is that she was in possession of passport No. PC 526754 with validity till 18.05.2021 and a tourist visa with validity till 07.12.2020, while the second petitioner is alleged to have had a passport bearing No. AO1446953 with validity till 26.03.2022 and visa validity till 30.04.2018. Both accused failed to produce their passports or visa when demanded by the authorities and instead, produced the passport and other documents of another person and they were found occupying rooms in a hotel on 19.03.2024 and thereby committed the offences under sections 14A(b),14(a),14(b) and 14(c) of the Act, apart from section 12(1)C, 12(1A) and 12(1)(d) of the Passports Act.
5. In Crl. M.C. No. 6618/2024, the accused are facing prosecution in C.C. No. 748/2024 on the files of the Judicial First Class Magistrate’s Court-VIII, Ernakulam which arises out of Crime No. 44/2024 of Panangad Police Station. The prosecution in the said case alleges that the first accused was in possession of a Kenyan passport bearing No. AK0077168 with a valid viwith a Kenyan passport bearing No. B222440 and visa valid till 16.01.2018. Both petitioners had entered the country with valid documents but thereafter continued to stay in violation of the visa conditions and when they were asked to produce the passport and visa, they failed to do so and they were found in possession of the passport of another person thereby committing offences under sections 14A, 14(a), and 14(b) of the Act, apart from section 12(1)C, 12(1)d and 12(1A) of the Passports Act.
6. Sri. Aneesh K.R. the learned counsel appearing for the petitioners, contended that incorporation of section 14A of the Act and section 12(1A) of the Passports Act is totally illegal, and those offences are not attracted even going by the uncontroverted allegations in the final report.
7. Sri. K.A. Noushad, the learned Public Prosecutor, on the other hand, contended that the applicability of section 14A of the Act arises even in cases where a foreigner stays in India without authority, and therefore, the accused are bound to be proceeded against, considering the seriousness of the offences. It was also submitted that the applicability of the sections of the Passports Act and the Foreigners Act are all to be decided during trial.
8. I have considered the rival contentions.
9. All four petitioners are foreign nationals. The Foreigners Registration Officer has informed that petitioners had a valid visa and passport at the time of their entry into India. The final report also indicates that petitioners were in possession of valid documents at the time of their entry. Thus, petitioners’ entry into India was l
AI
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