The court clarified that only Section 14(b) of the Foreigners Act applies, as the petitioner entered India with a valid passport and visa, leading to the deletion of the improperly framed charge under Section 14(B).

ORDER :

1. Petitioner is the accused in C.C. No.383 of 2024, pending on the files of the Judicial First Class Magistrate Court-XI, Thiruvananthapuram. The case originated with the registration of Crime No.249 of 2023 at the Valiyathura Police Station for offences under Sections 465, 468, 471 and 419 r/w Section 34 of IPC, Sections 12(1A) and 12(1)(b) of the Indian Passport Act, 1967 and Sections 14(a) and 14(B) of Foreigners Act. The prosecution allegation is that the petitioner had entered India with a Srilankan passport and single entry tourist visa valid from 27.12.2021 to 26.02.2022, and over stayed the visa period by continuing in India after 26.02.2022. It is further alleged that, with the aid of the 2^nd accused and by concealing the fact that he is a Srilankan citizen, the petitioner impersonated himself as one Nitesh M and obtained Aadhaar card, Pan card and an Indian Passport. Thereafter, the petitioner attempted to travel to France via Bahrain by duping the immigration officials.

2. From the discussions in court and the proceedings uploaded in the e-courts site, the petitioner and his counsel gathered the impression that charges were being framed for offences under Sections 465, 468, 471 and 419 r/w Section 34 of IPC, Sections 12(1A) and 12(1)(b) of the Indian Passport Act, 1967 and Sections 14(a) and 14(b) of Foreigners Act. As the maximum punishment prescribed for the above offences is seven years, the petitioner decided to opt plea bargain and for that purpose filed petition under Section 290 of the BNSS. To the petitioner's dismay, the application for plea bargaining was dismissed on the premise that the offences are punishable with imprisonment for a term which may extend to eight years. Therefore, the petitioner obtained a copy of the court charge and surprised to find that one of the charges levelled against him is for the offence punishable under Section 14B of the Foreigners Act, which is punishable with imprisonment up to 8 years. Hence, this Crl.M.C.

3. Learned Counsel for the petitioner referred to the proceedings of the court below dated 16.01.2025 to submit that the court itself had recorded that the charges are framed under Sections 465, 468, 471 and 419 r/w Section 34 of IPC, Sections 12(1A) and 12(1) (b) of the Indian Passport Act, 1967 and Sections 14(a) and 14(b) of Foreigners Act. It is contended that, even if the prosecution allegations are accepted, only the offence under Section 14(b) of the Foreigners Act will be attracted. For attracting Section 14B, the accused should have knowingly used a forged passport for entering into India. Finally, it is contended that the use of brackets around the alphabet B in Annexure 2 charge indicates that the provision was wrongly quoted.

4. I heard the Public Prosecutor also. Being contextually relevant Section 14B is extracted hereunder;

“Whoever knowingly uses a forged passport for entering into India or remains therein without the authority of law for the time being in force shall be punishable with imprisonment for a term which shall not be less than two years, but may extend to eight years and shall also be liable to fine which shall not be less than ten thousand rupees but may extend to fifty thousand rupees.”

A reading of the Section leaves no room for doubt that it would come into play only when a person knowingly uses a forged passport for entering into India or remains therein without authority of law.

5. Eighth charge in Annexure II being contextually relevant is extracted below:

“Eightly, that you, during the course of the same transaction, in furtherance of common intention with accused no.2, knowingly used the forged passport as genuine for entering into India and remains in India without the authority of law and thereby committed the offence punishable under section 14(B) of Foreigners Act and is within the cognizance of this court.”

6. A close scrutiny of the above charge makes it apparent that the court proceeded on the premise that the petitioner had