The main legal point established is that the court, while considering a quashing petition, should proceed based on the averments in the complaint and not adjudicate upon a disputed question of fact.

ORDER :

Satish K. Agnihotri, J

The Petitioner, being a co-accused in G.R. Case No.165 of 2016 (State of Sikkim vs. Atsushi Yonezawa & Anr.) pending on the file of the Court of Judicial Magistrate Chungthang Sub Division, North Sikkim, has come up with the instant petition under provisions of Section 482 of the Code of Criminal Procedure, 1973 (for short, the Code) for quashment of First Information Report (FIR) No.105/2016 dated 07.04.2016 and consequential proceedings in G.R. Case No.165 of 2016.

2. The brief facts, as projected by the Petitioner, are that on the basis of a report filed by HC Nima Sherpa of Special Branch, FRO Section to the Station House Officer, Sadar Police Station, Gangtok, a case was registered. It was alleged in the report that one Mr. Atsushi Yonezawa, a Japanese National, holder of P.P. No.TK 5735699 valid upto 28.11.2021, Visa No. (T) 7197080 valid upto 28.06.2016, was enlisted as a football player of Minerva Academy Football Club under the ownership of the present Petitioner. Mr. Atsushi Yonezawa was permitted to play a 2nd Division I-League football match between Minerva Academy Football Club and Gangtok Himalayan Sporting Club without having requisite sanction in the Tourist Visa granted in his favour. It was further alleged that the present petitioner threatened the police authorities with dire consequences stating that he had connection with senior officers of MHA. It has come on record that on registration of the case, the investigation was carried out. Thereafter, a charge-sheet for having committed an offence under Section 14 of The Foreigners Act, 1946 against Mr. Atsushi Yonezawa, the Japaneses National and under Section 14C of The Foreigners Act, 1946 against the petitioner, was filed in the Court of Judicial Magistrate, Chungthang Sub Division, North Sikkim. The case is pending trial before the Court. Thus, this Petition for quashing of FIR and pending criminal case.

3. Mr. Tashi Rapden Barfungpa, learned Counsel appearing for the Petitioner, would contend that the complaint (report), which formed the basis for charge-sheeting the petitioner, does not make out a case against the Petitioner as the Petitioner, on having come to know that the other co-accused was not having permission on Tourist Visa to play football, withdrew him from the field. It was further contended that he was not in employment of Minerva Academy Football Club, Chandigarh, Punjab under his ownership. The other co-accused, i.e. Mr. Atsushi Yonezawa, was registered with Aizawl Football Association, Mizoram on permanent basis and was on loan to Chandigarh Football Association to play for Minerva Academy Football Club for a limited period of a few months and, as such, the Petitioner was not party to any misdeed, if any, committed by Mr. Atsushi Yonezawa. Mr. Barfungpa would also contend that the Petitioner has not committed any offence as alleged and there is no intention or motive to commit an offence under provisions of Section 14 or 14C of The Foreigners Act, 1946. Thus, the FIR against the Petitioner and consequential criminal case deserve to be quashed.

4. Per contra, Mr. Karma Thinlay, learned Additional Public Prosecutor appearing for the State, would contend that the Japanese National, Mr. Atsushi Yonezawa was found playing without proper permission from the Government of India on behalf of the Minerva Academy Football Club, Chandigarh, Punjab owned by the Petitioner. Genuineness and authenticity of the complaint is the subject matter of the trial. It is for the Petitioner to establish that he had no intention or he had not permitted the other co-accused, namely, Mr. Atsushi Yonezawa, the Japanese National, to play without having a valid permit under his Visa condition in the ongoing trial proceedings. Mr. Thinlay would further contend that if the charge-sheet makes out a prima facie case of having committed offences under provisions of Section 14C of The Foreigners Act, 1946, this Court may not go into the genuineness