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2019 Supreme(P&H) 9
IN THE HIGH COURT OF PUNJAB AND HARYANA
Arvind Singh Sangwan, J.
Choi Mikieong – Appellant
Vs.
State of Haryana – Respondent
Criminal Miscellaneous (M) No. 48897 of 2017
Decided On : 09-05-2019
Pankaj Gupta, Adv., Himmat Singh, Adv.
The main legal point established in the judgment is that the obligation to fill up Form 'C' and the consequences of non-furnishing it are distinct from the offences under Section 14 of the Foreigners Act, and the penalties for non-compliance are limited to fines under Section 5 of the Registration of Foreigners Act.
Headnote:
Foreigners Act - Quashing of FIR - Sections 3/14 of the Foreigners Act, 1946 - [3, 14] - The court discussed the provisions of Sections 3 and 14 of the Foreigners Act, 1946, along with Order 16 of the Foreigners Order, 1948. It highlighted the definition of 'keeper of a hotel' and the requirement to transmit Form 'C' within 24 hours of a foreigner's arrival. The court also referenced judgments interpreting the definition of 'keeper of a hotel' and the consequences of non-furnishing of Form 'C'. The key legal provisions discussed were the requirements for entry, stay, and departure of foreigners, and the penalties for contravention of the Act.
Fact of the Case:
The petitioner, a citizen of South Korea, was accused of not filling up Form 'C' for a foreign national staying at a guest house she leased. The police charged her under Sections 3/14 of the Foreigners Act, 1946.
Finding of the Court:
The court found that the petitioner was not the keeper of the guest house as she was not present at the spot, and the manager, who met the police, was not prosecuted. It also held that the non-filling up of Form 'C' did not attract the offence under Section 14 of the Act, but rather under Section 5 of the Registration of Foreigners Act, which provides for a maximum punishment in terms of a fine.
Issues: The issues revolved around the petitioner's role as the lessee of the premises and whether she could be held responsible for not filling up Form 'C', and the interpretation of the legal provisions regarding the obligations of the keeper of a hotel.
Ratio Decidendi: The court's decision was based on the interpretation of the definition of 'keeper of a hotel', the requirements for transmitting Form 'C', and the consequences of non-furnishing of Form 'C'. It also relied on the judgment that clarified the distinction between offences under Section 14 of the Foreigners Act and Section 5 of the Registration of Foreigners Act.
Final Decision: The court allowed the petition, quashing the FIR and subsequent proceedings, subject to the payment of costs of Rs.1.00 lacs within 30 days.
Arvind Singh Sangwan, J.
Prayer in this petition is for quashing of FIR No.0036 dated 24.01.2017 under Sections 3/14 of the Foreigners Act, 1946 (for short 'the Act'), registered at Police Station DLF, Phase-1, Gurgaon and the order dated 09.06.2017, vide which the charges were framed against the petitioner as well as all the subsequent proceedings arising out of the FIR.
2. Brief facts of the case are that the petitioner is a citizen of South Korea and is presently residing in India on business visa, as she is one of the Directors/partner of Greenarae Hospitality Pvt. Ltd. The petitioner is lessee of a premises in Gurugram, where a guest house under the name and style 'Golden Eyes' is running, though, the petitioner's ordinary place of business is in Kancheepuram, Tamil Nadu. The petitioner has also acquired Aadhar Card at her address of Appur, Kancheepuram, Tamil Nadu. She has employed staff for proper running and maintenance of the aforesaid guest house at Gurugram and day to day management is maintained by the staff employed by her.
3. As per allegations in the FIR, on 24.01.2017, the police party headed by ASI Rishi Pal inspected the aforesaid guest house and on asking by him, the person, who was sitting on reception of the guest house, told his name as Manish and produced the register of guest house, in which it was found that there was an entry at Sr. No.1 dated 17.12.2016 at page No.1, in the name of PARK YONGSEOK (KORIA), Passport No.MO7686505 KORIA. When ASI Rishi Pal asked aforesaid Manish about the Form 'C', he told that he used to look after only the maintenance work and further said that he could tell about the same after asking from owner of the guest house i.e. the petitioner and after asking from the petitioner, aforesaid Manish said that no Form 'C' of the foreigner was filled up. Thus, the petitioner has committed the offence under Sections 3/14 of the Act.
4. For ready reference, Section 3 of the Act reads as under: -
"3. Power to make orders. (1) The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or, their departure therefrom or their presence or continued presence therein.
(2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner
(a) shall not enter or shall enter only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed;
(b) shall not depart from India, or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed;
(c) shall not remain in India, or in any prescribed area therein;
(cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal, the cost of his removal from India and of his maintenance therein pending such removal;
(d) shall remove himself to, and remain in, such area in 2[India] as may be prescribed;
(e) shall comply with such conditions as may be prescribed or specified
(i) requiring him to reside in a particular place;
(ii) imposing any restrictions on his movements;
(iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified;
(iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified;
(v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified;
(vi) prohibiting him from association wi
