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2013 Supreme(Mad) 3939
High Court of Judicature at Madras
R.K. AGRAWAL & M. SATHYANARAYANAN, JJ.
The State, Rep. By the Secretary to Government Public (Foreigners III) Department & Others
Versus
G. Karunairaj
Writ Appeal No. 651 of 2012 & M.P. No. 1 of 2012
Decided On : 26-11-2013
For the Appellants:A.L. Somayaji, Advocate General Assisted by T.N. Rajagopalan, Special Government Pleader.
For the Respondent:M. Sreedhar for M/s. M. Sreedhar Associates, Advocates.
Headnote:
FOREIGNERS ACT - SECTION 3(2)(E) - RESTRICTION OF MOVEMENT - VALIDITY - OPPORTUNITY OF HEARING - NOT REQUIRED - SATISFACTION OF AUTHORITY - SUBJECTIVE - JUDICIAL REVIEW - NARROW - NO MALA FIDES - ALLEGATIONS - NOT PROVED - WRIT PETITION - DISMISSED.
Fact of the Case:
The respondent, a Malaysian national, was arrested in India for various criminal offenses. While on bail, he was served with a Government Order directing him to reside in a Special Camp for Foreigners. He challenged the order, arguing that he was an Indian citizen and that he had not been given an opportunity to prove his citizenship. The High Court quashed the order, holding that the respondent should have been given an opportunity to prove his citizenship before the order was passed.
Finding of the Court:
The Supreme Court allowed the appeal and set aside the High Court order. The Court held that the respondent was not entitled to an opportunity to prove his citizenship before the order was passed. The Court also held that the order did not amount to detention or confinement, but was merely a restriction on the respondent's movement. The Court further held that the allegations of mala fides against the officials who passed the order were not proved.
Issues: 1. Whether the respondent was entitled to an opportunity to prove his citizenship before the order was passed? 2. Whether the order amounted to detention or confinement? 3. Whether the allegations of mala fides against the officials who passed the order were proved?
Ratio Decidendi: 1. The Foreigners Act does not require that a foreigner be given an opportunity to prove his citizenship before an order restricting his movement is passed. 2. An order restricting the movement of a foreigner does not amount to detention or confinement. 3. Allegations of mala fides must be proved strictly.
Final Decision: The Supreme Court allowed the appeal and set aside the High Court order. The Court held that the respondent was not entitled to an opportunity to prove his citizenship before the order was passed. The Court also held that the order did not amount to detention or confinement, but was merely a restriction on the respondent's movement. The Court further held that the allegations of mala fides against the officials who passed the order were not proved.
1. The official respondents in W.P.No.27221/2011, are the appellants and aggrieved by the final order dated 29.2.2012, made in the said writ petition, by and under which, G.O.Rt.No.3749, issued by the first appellant herein, dated 9.11.2011, under Section 3 (2)(e) of the Foreigners Act, 1946 (Central Act 31 of 1946) read with the Notification of the Government of India, Ministry of Home Affairs, No.4/3/56 (1) F-1, dated 19.4.1958, for regulating the presence of the respondent herein, with a further direction to reside in the Special Camp for Foreigners, came to be quashed.
2. The facts briefly stated and necessary for the disposal of this writ appeal, are as follows:
2(i) The respondent herein filed the above said writ petition praying for the issuance of a writ of certiorarified mandamus to quash the above said Government Order dated 9.11.2011, stating among other things, that he is an Indian Citizen and further, that on 21.8.2011, came to Chennai with his wife viz. Jayanthi, and three children viz. Shyamala aged about 19 years (female), Tika Devan aged about 6 years (boy) and Bumiputeri aged about 5 years (girl), for the purpose of shopping in connection with his younger daughter's ear-boring ceremony and were staying in Hotel Aravind Residency at Ekathuthangal, Chennai and during midnight hours on that date, a team of Police Officials headed by the Inspector of Police Mr.Chandrasekar, attached to the City Crime Branch, Coimbatore City, had banged his hotel room and they informed him they were from City Crime Branch at Coimbatore City and they asked him to speak to the Commissioner of Police viz. Mr.Sylendrababu, I.P.S., over phone and thereafter, the writ petitioner and his family members were tortured and his wife as well as his elder daughter were molested and sexually assaulted and thereafter, all of them were taken in two cars to Coimbatore and on the way to Coimbatore also, the policemen sitting near his wife and his elder daughter, had abused them.
2(ii) It is further averred by the writ petitioner that on reaching Coimbatore, he was taken to the room of the Commissioner of Police, wherein, the said official personally made some enquiry and subsequently, his house in Andhra Pradesh, was searched and his laptops, cellphones, wallets, credit cards, debit cards, costly watches, jewellery weighing about 250 sovereigns, PAN card, driving licence and other valuable items were seized and they also effected the arrest of the writ petitioner and his wife. According to the writ petitioner, he last saw his children on 23.8.2010.
2(iii) It is further stated by the writ petitioner that he was arrested in Crime No.55/2010 registered by the City Crime Branch of Coimbatore City Police, for the alleged commission of the offence under Section 420 IPC, and thereafter, arrested pursuant to the Prisoner Transfer (P.T.) Warrant in Crime Nos.83, 77 and 38/2010 registered by the above said Unit, and also in connection with Crime No.609/2004 registered by Cheyyur Police Station, and he was remanded to judicial custody and was lodged at Puzhal Central Prison at Chennai and according to him, all the cases were foisted at the instance of the then Commissioner of Police for the reason that he might expose the nexus between the top I.P.S. Officials and the Drug Mafia operating in India and the writ petitioner in this regard, sent number of representations to the higher officials and he has also given his statement under Section 164 of Cr.P.C. before the Court of Judicial Magistrate at Uthiramerur, confessing the role and involvement of the I.P.S. Officers in Tamil Nadu and their nexus with international mafia dealing with drugs and diamonds, and he had also proof showing their involvement.
2(iv) It is further averred by the writ petitioner that he filed an application for bail in one of the crime numbers in Crl.O.P.No.29774/2010 and during the course of the hearing, the Additional Public Prosecutor represented that the petitioner is
