IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1561 of 2007()
1. VIJUKUMAR, S/O.BHASKARAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.BIJU BALAKRISHNAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/07/2009
O R D E R
M.Sasidharan Nambiar, J.
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Crl.M.C.Nos.1561 & 2127 of 2007
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COMMON ORDER
Petitioner in Crl.M.C.No.1561/2007 is the
second accused in C.C.No.1623/2005 on the file of
Judicial First Class Magistrate’s Court, Varkala.
Petitioners in Crl.M.C.No.2127/2007 are accused 1
and 2 in C.C.No.13/2007 on the file of Chief
Judicial Magistrate’s Court, Ernakulam. The petitioners
are being tried for the offence under Foreigners
Act, 1946. These petitions are filed under Section
482 of Code of Criminal procedure to quash the
proceedings as against the petitioners contending
that even if the prosecution case is accepted, no
offence as alleged is made out.
2. Prosecution case in C.C.No.1623/2005 on the
file of Judicial First Class Magistrate’s Court,
Varkala is that, in violation of the law that when
accommodation is provided to a foreigner in a hotel
or resort, that fact is to be reported to the
CRMC 1561&2127/07 2
police by the keeper of the hotel or resort,
petitioner/second accused, who is the owner of Eden
Garden Resorts, did not furnish Form-C as
prescribed and instead kept it at the resort itself
and thereby the accused committed an offence under
Section 7 read with Section 14 of Foreigners Act.
Prosecution case in C.C.No.13/2007 on the file of
Chief Judicial Magistrate’s Court, Ernakulam is that
first petitioner/first accused, who is the licencee
of Dwaraka Hotel and second petitioner/second
accused, its full time Director and third accused,
the Receptionist, did not report to the police that
two Srilankan citizens resided in Room No.304 of
Dwaraka Hotel from 3.11.2006 till the night of
4.11.2006 and thereby committed offence under
Section 7 read with Section 14 of Foreigners Act.
3. Case of the petitioners is that though under
Section 7 of Foreigners Act, the hotel keeper of
any premises, where, lodging or sleeping
accommodation is provided, has an obligation to
CRMC 1561&2127/07 3
furnish the information regarding the foreigners
accommodated, as prescribed under the Act or the
Rules framed thereunder, no form is prescribed and
so petitioners cannot be prosecuted for the failure
to report the fact in the prescribed form, in the
absence of a specific case that the fact was not
reported. It was pointed out that the case of the
prosecution in C.C.No.1623/2005 is only that Form-C
was kept at the resort itself and not that the
residence was not reported and in C.C.No.13/2007,
the case is only that the residence of the foreign
citizens was not reported in the prescribed form
and not that the fact was not reported at all. It
was also contended that prescribed Form-C was
provided only under Registration of Foreigners
Rules framed under Registrations of Foreigners Act,
1939 and if there is any violation of the said
Rule, petitioners could be prosecuted only for the
offence under Section 5 of Registration of
Foreigners Act and not under the Foreigners Act and
CRMC 1561&2127/07 4
hence, the cases are to be quashed.
4. Learned senior counsel appearing for the
petitioners in Crl.M.C.No.2127/2007 and learned counsel
appearing for the petitioner in Crl.M.C.No.1561/2007
and learned Director General of Prosecutions were
heard.
5. Learned counsel appearing for the petitioners
pointed out that though under Section 3 of
Foreigners Act Central Government is competent to
make provisions in respect of all foreigners
regulating or restricting their entry into India or
their presence, Foreigners Order, 1948, made under
Section 3, does not contain any provision for
furnishing a report as provided under Section 7 of
the Foreigners Act and no form is prescribed and
definition contained in Section 2(b) shows that
‘prescribed’ means, prescribed by orders made under
the Act. It was argued that the obligation provided
under Section 7 is only to report as prescribed and
in the absence of a prescribed form, petitioners
CRMC 1561&2127/07 5
cannot be prosecuted for failure to report in a
particular form. Learned senior counsel also
pointed out that the allegation in the final report
in C.C.No.13/2007 is only that there was failure to
report as prescribed and therefore, prosecution of
the petitioners in Crl.M.C.No.2127/2007 is only an
abuse of process of the court and in any case, on
the materials produced along with the final report,
petitioners cannot be convicted under Section 7
read with Section 14 of Foreigners Act. It was
also pointed out by learned counsel appearing for
the petitioner in Crl.M.C.No.1561/2007 that at
best, for non compliance of the provisions of the
Registration of Foreigners Act, petitioner is
liable to pay penalty as provided under Section 5
and as prosecution is only under the Foreigners
Act, the prosecution is bad.
6. Learned Director General of Prosecutions
submitted that there is allegation in Annexure-A
final report in Crl.M.C.No.2127/2007 that
CRMC 1561&2127/07 6
petitioners, in violation of the law, did not
report the residence of Srilankan citizens in
Dwaraka Hotel and therefore, ingredients of an
offence under Section 7 read with Section 14 of
Foreigners Act is made out and if that be so, the
case cannot be quashed and at best, petitioners
could seek an order of discharge from the concerned
Magistrate. Learned Director General of
Prosecutions also pointed out that in Annexure-2
final report in Crl.M.C.No.1561/2007, there is a
specific allegation that in violation of the
provisions, residence of the foreigners was not
reported and that the accused kept Form-C at the
resort itself and when, there are sufficient
allegations that accused did not report the
residence of foreigners in their resort as provided
under Section 7 and it is punishable under Section
14, the cases cannot be quashed. It was also
pointed out that in exercise of the powers under
Section 3 of Foreigners Act, Foreigners (Report to
CRMC 1561&2127/07 7
Police) Order, 1971 was made, which provides that
every householder or other person shall report to
the officer in charge of the nearest police station
about the arrival or presence in his household or
in any premises occupied by him or under his
control, of any foreigner, if he knows or has
reason to believe that he is a foreigner and there
is violation of the said order and hence, an
offence under Section 7, which is punishable under
Section 14 of Foreigners Act, is made out and
therefore, the case cannot be quashed.
7. As is clear from the statement of objects
and reasons, the Foreigners Act, 1946 was enacted,
as Registration of Foreigners Act, 1939 has been
found to be ineffective and inadequate. Section 3
provides for making 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
CRMC 1561&2127/07 8
into India or for their departure. Section 7
prescribes an obligation on the hotel keeper.
Section 7(1) reads:
“It shall be the duty of the keeper
of any premises whether furnished or
unfurnished where lodging or sleeping
accommodation is provided for reward,
to submit to such person and in such
manner such information in respect of
foreigners accommodated in such
premises, as may be prescribed.Explanation.- The information
referred to in this sub-section may
relate to all or any of the
foreigners accommodated at such
premises and may be required to be
submitted periodically or at any
specific time or occasion.”Section 14 of Foreigners Act is the penal
provision. It reads:
“14. Penalty for contravention of
provisions of the Act, etc.- Whoever-a) remains in any area in India
for a period exceeding the period
for which the visa was issued to
him;(b) does any act in violation of
the conditions of the valid visaCRMC 1561&2127/07 9
issued to him for his entry and
stay in India or any part
thereunder;(c) contravenes the provisions of
this Act or any any other made
thereunder or any direction given
in pursuance of this Act or such
other for which no specific
punishment is provided under this
Act,shall be punished with imprisonment
for a term which may extend to five
years and shall also be liable to
fine; and if he has entered into a
bond in pursuance of clause(f) of
sub-section (2) of Section 3, his
bond shall be forfeited, and any
person bound thereby shall pay the
penalty thereof or show cause to the
satisfaction of the convicting Court
why such penalty should not be paid
by him.”8. The statement of objects and reasons of
Registration of Foreigners Act, 1939 show that it
was enacted as Government of India should, at all
times, have complete information as to the number
and whereabouts of foreigners in the country, not
only for national defence, but also for replying
the enquiries as to the whereabouts of foreigners
CRMC 1561&2127/07 10
received from their relatives. Section 3 of the
said Act provides for making Rules. The
Registration of Foreigners Rules, 1992 is made
under Section 3 of that Act.
9. Hotel keeper is not defined in the
Foreigners Act, 1946 or in the Foreigners Order,
1948, made in exercise of the powers conferred
under Section 3 of Foreigners Act. The Act and the
Order do not contain a provision regarding
particulars to be furnished as provided under
Section 7 of Foreigners Act. It also does not
prescribe any specified form under Section 7. What
is provided under sub-section (1) of Section 7 is
only an obligation “to submit to such person and in
such manner such information in respect of
foreigners accommodated in such premises as may be
prescribed.” Under Section 2(b), ‘prescribed’ is
defined as prescribed by orders made under the said
Act. Foreigners Order, 1948 does not provide any
guideline to fix the identity of “such person” to
CRMC 1561&2127/07 11
whom the report is to be submitted as provided
under Section 7. It also does not show the
“manner” in which the report is to be submitted.
Though the Foreigners (Report to Police) Order,
1971 was made by the Central Government under
Section 3 of Foreigners Act, 1946 and the said
order provides that every householder shall report
to the nearest Police Officer regarding the arrival
of a foreigner, it also does not prescribe “the
manner” in which the information is to be
furnished. When the Act provides for furnishing
report in respect of foreigners accommodated in
such manner as prescribed and when the Foreigners
Order is made in exercise of the powers under
Section 3, details of the form and the person to
whom it is to be furnished and the manner in which
it is to be furnished, should have been specified
in the Order so made, to avoid any confusion at a
later stage. It is seen that Foreigners Order, 1971
was made and published on 14.12.1971, in exercise
CRMC 1561&2127/07 12
of the powers conferred under Section 3 of
Foreigners Act. Rule 2 thereunder reads:
“Every householder or other person
shall report to the officer-in-charge
of the nearest police station about
the arrival or presence in his
household or in any premises occupied
by him or under his control of any
foreigner, if knows, or has reason to
believe that he is a foreigner.”As the Order came into force at once as provided
therein, every householder or other person, who
provide such accommodation, shall report to the
officer in charge of the nearest police station,
the arrival or presence in his household or in any
premises occupied by him or under his control, of
any foreigner, if he knows, or has reason to
believe that he is a foreigner. But, in the absence
of a prescribed form made under the Foreigners Act,
1946 or the Foreigners Order, 1948 or 1971, a hotel
keeper of any premises, where, lodging or sleeping
accommodation is provided for reward cannot be
CRMC 1561&2127/07 13
prosecuted for the reason that information is not
furnished in a prescribed manner. True, under the
Order, 1971, he is bound to submit a report, though
not in the prescribed form, to the officer in
charge of the nearest police station about the
arrival or presence in his household or in any
premises occupied by him or under his control of
any foreigner, if he knows, or has reason to
believe that he is a foreigner. If not furnished,
he is liable for punishment as provided under
Section 7 read with Section 14 of Foreigners Act.
10. As distinct from the Foreigners Act and
Foreigners Order, Registration of Foreigners Rules,
1992, under Rule 14, prescribes the manner in which
a keeper of the hotel has to furnish the necessary
particulars. It reads:
“14. Report to be made to and by
hotel keepers.- (1) Every keeper of
a hotel shall require every visitor
to the hotel to furnish the
particulars necessary for recording,
and sign, on his arrival at theCRMC 1561&2127/07 14
hotel, his name and nationality in a
register maintained for the purpose
in Form F and, it any such visitor
is a foreigner shall further require
him;(a) on his arrival at such a
hotel to furnish the other
particulars specified in Items 4
to 10 of the said register; and(b) at the time of his
departure from such a hotel to
furnish the particulars
necessary for recording in the
said register, the date and time
of his departure and the address
to which he is proceeding.(2) The register prescribed by sub-
rule(1) shall at all time be made
available for inspection, on the
demand of any Registration Officer,
any magistrate or any police officer
not below the rank of head
constable.(3) Every visitor to any hotel
shall, on being required so to do by
the keeper of the hotel, furnish the
particulars necessary for recording,
and sign, his name and nationality,
in the register referred to in sub-
rule(1), and if such visitor is a
foreigner, shall also,-(a) on his arrival at such a
hotel furnish the other
particulars specified in Items 4
to 10 of the said register; andCRMC 1561&2127/07 15
(b) at the time of his departure
from such hotel, furnish the
particulars necessary for
recording, in the said register,
the date and time of his
departure and the address to
which he is proceeding.
(4) Every particulars, other than
the signature of the keeper of a
hotel or a visitor, which is
required by this rule to be recorded
in the said register shall be
recorded by the keeper of the hotel
and in the English language, if he
is so able, or otherwise, in an
Indian language.
(5) If a visitor does not understand
the English language, it shall be
duty of the keeper of the hotel, if
so requested to explain to the
visitor the requirements of this
rule and Form F.
(6) The keeper of the hotel shall,
as soon as may be but not more than
twenty-four hours, after the arrival
of any foreigner, transmit a copy of
Form C, duly completed from the
particulars furnished by such a
foreigner, to the Registration
Officer.
(7) For the purpose of this rule,-
(a) “hotel” includes any
boarding-house, club, dak-
bungalow, rest house, paying
guest house, sarai or otherCRMC 1561&2127/07 16
premises of like nature;
(b) “keeper of a hotel” means
the person having the management
of a hotel and includes any
person authorised by him, and
competent to perform the duties
of the keeper of the hotel under
this rule;
(c) “sign” includes, in respect
of a visitor who is unable to
write, the making of a thumb
impression or other mark by
means of which he is accustomed
to attest a document; and
(d) “visitor” means a person for
whom accommodation is provided
at a hotel.
(8) Copies of Form C may be
obtained, on application from any
Registration Officer.”
11. When a person, who is not a citizen of
India, who is the foreigner as defined under the
Foreigners Act, 1946 and Registration of Foreigners
Act, 1939, is accommodated in a hotel or resort, a
report as provided under Section 7 of the
Foreigners Act is to be furnished and if not it is
punishable under Section 14(c) of the Act. But,
CRMC 1561&2127/07 17
the obligation under the Section and consequent
culpability is only on the keeper of the premises.
If we go by dictionary meaning, keeper could only
be some one in charge of the hotel or resort. If
an attendant or manager is appointed in charge of
the hotel or resort, then the owner or owners will
not be the keeper and it so, it is the person in
charge of the resort or hotel, who is obliged under
the Section to furnish the information provided
under Section 7 of the Act. If so, the owner of
the resort or hotel cannot be prosecuted for the
offence under section 14(c) of the Act.
12. Section 3 of Registration of Foreigners
Act empowers the Central Government to make Rules
after previous publication by notification in the
Official Gazette for requiring any foreigner
entering or being present in India to report his
presence to a prescribed authority within such time
and in such manner and with such particulars as
prescribed. Registration of Foreigners Rules, 1992
CRMC 1561&2127/07 18
published in Official Gazette dated 19th March, 1992
in exercise of the powers conferred under Section
3, under Rule 14 provides for furnishing report to
be made by hotel keeper. Sub-rule (7) defines
keeper of a hotel. Form-C provided in Rule 14
contains the details of the hotel, name of the
foreign visitor, his nationality, details of
passport, address in India, date of arrival in
India and proposed duration of stay in India, etc.
Failure to furnish Form-C as provided under Rule 14
would attract an offence punishable under Section 5
of Registration of Foreigners Act, 1939. Section 5
reads:
“5. Penalties.- Any person who
contravenes, or attempts to
contravene or fails to comply with,
any provision of any rule made under
this Act shall be punished, if a
foreigner, with imprisonment for a
term which may extend to one year or
with fine which may extend to one
thousand rupees or with both, or if
not a foreigner, with fine which may
extend to five hundred rupees.”
CRMC 1561&2127/07 19
Contravention of the relevant Rules as provided
under the Registration of Foreigners Rules, 1992,
would attract the offence provided under Section 5
of the Registration of Foreigners Act.
13. It is, thus, clear that when the
contravention is that of the Foreigners (Report to
Police) Order, 1971 or the Foreigners Order, 1948
and thereby the Foreigners Act, prosecution could
only be under Section 7 read with Section 14 of the
Foreigners Act. On the other hand, if the
contravention is of the provisions of Registration
of Foreigners Act or Registration of Foreigners
Rules, prosecution could only be under Section 5 of
the Registration of Foreigners Act. Prosecution in
such a case cannot be under Section 7 or 14 of the
Foreigners Act.
14. Evidently, the Investigating Officers in
these cases were under the impression that
information to be furnished under Section 7 of
Foreigners Act and the report to be filed under
CRMC 1561&2127/07 20
Rule 14 of Registration of Foreigners Rules are the
same. That could only be the reason why in
Annexure-2 final report in Crl.M.C.No.1561/2007, it
is alleged that in violation of the Rules, Form-C
was not forwarded and instead, it was kept at the
resort itself and thereby alleged commission of the
offences under Sections 7 and 14 of the Foreigners
Act. Similarly, that could only be the reason why
in Annexure-A final report in Crl.M.C.No.
2127/2007, it is alleged that report was not
furnished in the prescribed form, when neither
Section 7 nor the Rules prescribe any form. Even
if petitioners did not furnish a report as provided
under Rule 14 of Registration of Foreigners Rules,
they cannot be prosecuted under Section 7 read with
Section 14 of Foreigners Act. Therefore,
prosecution of the petitioners under the Foreigners
Act, on these allegations, is only an abuse of
process of the court.
CRMC 1561&2127/07 21
15. When the final report and materials
produced along with the final report establish that
there is no material to prove commission of an
offence, continuation of the proceedings will serve
no fruitful purpose, as ultimately, even if
petitioners are to be tried, they cannot be
convicted for the offence. In order to convict the
petitioners, there should be a specific case that
petitioners did not report the residence of the
foreign citizens in their resort or hotel, in
violation of the provisions contained in Section 7
of Foreigners Act. If that be so, there should be
a specific allegation that in spite of the
provision that every householder shall report to
the officer in charge of the nearest police station
about the arrival or presence of foreigners in
their household or premises, petitioners did not
report the matter to the officer in charge of the
nearest police station. When there is no such case
and no investigation was conducted in nearest
CRMC 1561&2127/07 22
police station to find out whether such report/
information was received from the hotel or resort
of the petitioners or records were verified in the
resort or hotel to find out whether such
information provided under Section 7 of the Act was
furnished or not, even if petitioners are to be
tried, they cannot be convicted. In such
circumstances, interest of justice warrants that
prosecution as against the petitioners are to be
quashed.
16. Before parting with the case, it is
necessary to remind the Central Government of the
necessity to make an effective order or rule, in
exercise of the powers under Section 3 of
Foreigners Act to enforce Section 7 of the Act.
When the infiltration of extra territorial
terrorists is in the increase and security of the
nation and the public are in danger, Government
cannot be a silent spectator and instead have to
make use of all the relevant provisions in the
CRMC 1561&2127/07 23
statute to prevent any such threat. Proper and
effective enforcement of the provisions of Section
7 of the Foreigners Act would definitely aid the
police and the enforcement authorities to trace out
the stay and movement of such foreign nationals
within India. It is for the Government to make
necessary Rules prescribing the details of the
information to be furnished under Section 7 and
take effective steps for the proper security of
this great nation.
Petitions are allowed. C.C.No.1623/2005 on the
file of Judicial First Class Magistrate’s Court,
Varkala and C.C.No.13/2007 on the file of Chief
Judicial Magistrate’s Court, Ernakulam as against
the petitioners are quashed.
23rd July, 2009 (M.Sasidharan Nambiar, Judge)
tkv