{"id":226919,"date":"2009-07-23T00:00:00","date_gmt":"2009-07-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vijukumar-vs-state-of-kerala-on-23-july-2009"},"modified":"2014-12-12T19:41:54","modified_gmt":"2014-12-12T14:11:54","slug":"vijukumar-vs-state-of-kerala-on-23-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vijukumar-vs-state-of-kerala-on-23-july-2009","title":{"rendered":"Vijukumar vs State Of Kerala on 23 July, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Vijukumar vs State Of Kerala on 23 July, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.MC.No. 1561 of 2007()\n\n\n1. VIJUKUMAR, S\/O.BHASKARAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY THE\n                       ...       Respondent\n\n                For Petitioner  :SRI.BIJU BALAKRISHNAN\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR\n\n Dated :23\/07\/2009\n\n O R D E R\n<\/pre>\n
              M.Sasidharan Nambiar, J.\n<\/p>\n
          ——————————-
\n          Crl.M.C.Nos.1561 & 2127 of 2007\n<\/p>\n
          ——————————-<\/p>\n
                     COMMON ORDER<\/p>\n
    Petitioner   in   Crl.M.C.No.1561\/2007    is   the<\/p>\n
second accused in C.C.No.1623\/2005 on the file of<\/p>\n
Judicial First Class Magistrate’s Court, Varkala.<\/p>\n
Petitioners in Crl.M.C.No.2127\/2007 are accused 1<\/p>\n
and 2 in C.C.No.13\/2007 on the file of Chief<\/p>\n
Judicial Magistrate’s Court, Ernakulam. The petitioners<\/p>\n
are being tried for the offence under Foreigners<\/p>\n
Act, 1946. These petitions are filed under Section<\/p>\n
482 of Code of Criminal procedure to quash the<\/p>\n
proceedings as against the petitioners contending<\/p>\n
that even if the prosecution case is accepted, no<\/p>\n
offence as alleged is made out.\n<\/p>\n
    2.  Prosecution case in C.C.No.1623\/2005 on the<\/p>\n
file of Judicial First Class Magistrate’s Court,<\/p>\n
Varkala is that, in violation of the law that when<\/p>\n
accommodation is provided to a foreigner in a hotel<\/p>\n
or resort, that fact is to be reported to the<\/p>\n
CRMC 1561&2127\/07          2<\/span><\/p>\n
police by the keeper of the hotel or resort,<\/p>\n
petitioner\/second accused, who is the owner of Eden<\/p>\n
Garden    Resorts,    did  not  furnish  Form-C   as<\/p>\n
prescribed and instead kept it at the resort itself<\/p>\n
and thereby the accused committed an offence under<\/p>\n
Section 7 read with Section 14 of Foreigners Act.<\/p>\n
Prosecution case in C.C.No.13\/2007 on the file of<\/p>\n
Chief Judicial Magistrate’s Court, Ernakulam is that<\/p>\n
first petitioner\/first accused, who is the licencee<\/p>\n
of  Dwaraka      Hotel and  second petitioner\/second<\/p>\n
accused, its full time Director and third accused,<\/p>\n
the Receptionist, did not report to the police that<\/p>\n
two Srilankan citizens resided in Room No.304 of<\/p>\n
Dwaraka Hotel from 3.11.2006 till the night of<\/p>\n
4.11.2006    and   thereby committed  offence  under<\/p>\n
Section 7 read with Section 14 of Foreigners Act.<\/p>\n
    3. Case of the petitioners is that though under<\/p>\n
Section 7 of Foreigners Act, the hotel keeper of<\/p>\n
any    premises,     where,  lodging   or   sleeping<\/p>\n
accommodation is provided, has an obligation to<\/p>\n
CRMC 1561&2127\/07          3<\/span><\/p>\n
furnish the information regarding the foreigners<\/p>\n
accommodated, as prescribed under the Act or the<\/p>\n
Rules framed thereunder, no form is prescribed and<\/p>\n
so petitioners cannot be prosecuted for the failure<\/p>\n
to report the fact in the prescribed form, in the<\/p>\n
absence of a specific case that the fact was not<\/p>\n
reported.    It was pointed out that the case of the<\/p>\n
prosecution in C.C.No.1623\/2005 is only that Form-C<\/p>\n
was kept at the resort itself and not that the<\/p>\n
residence was not reported and in C.C.No.13\/2007,<\/p>\n
the case is only that the residence of the foreign<\/p>\n
citizens was not reported in the prescribed form<\/p>\n
and not that the fact was not reported at all.   It<\/p>\n
was  also    contended  that  prescribed Form-C  was<\/p>\n
provided    only  under  Registration  of Foreigners<\/p>\n
Rules framed under Registrations of Foreigners Act,<\/p>\n
1939 and if there is any violation of the said<\/p>\n
Rule, petitioners could be prosecuted only for the<\/p>\n
offence    under   Section  5   of  Registration  of<\/p>\n
Foreigners Act and not under the Foreigners Act and<\/p>\n
CRMC 1561&2127\/07          4<\/span><\/p>\n
hence, the cases are to be quashed.\n<\/p>\n
    4.   Learned   senior counsel  appearing  for  the<\/p>\n
petitioners in Crl.M.C.No.2127\/2007 and learned counsel<\/p>\n
appearing for the petitioner in Crl.M.C.No.1561\/2007<\/p>\n
and learned Director General of Prosecutions were<\/p>\n
heard.\n<\/p>\n
    5. Learned counsel appearing for the petitioners<\/p>\n
pointed    out   that  though  under   Section   3  of<\/p>\n
Foreigners Act Central Government is competent to<\/p>\n
make   provisions   in   respect  of  all   foreigners<\/p>\n
regulating or restricting their entry into India or<\/p>\n
their presence, Foreigners Order, 1948, made under<\/p>\n
Section 3, does not contain any provision for<\/p>\n
furnishing a report as provided under Section 7 of<\/p>\n
the Foreigners Act and no form is prescribed and<\/p>\n
definition contained in Section 2(b) shows that<\/p>\n
‘prescribed’ means, prescribed by orders made under<\/p>\n
the Act. It was argued that the obligation provided<\/p>\n
under Section 7 is only to report as prescribed and<\/p>\n
in the absence of a prescribed form, petitioners<\/p>\n
CRMC 1561&2127\/07          5<\/span><\/p>\n
cannot be prosecuted for failure to report in a<\/p>\n
particular      form. Learned  senior   counsel  also<\/p>\n
pointed out that the allegation in the final report<\/p>\n
in C.C.No.13\/2007 is only that there was failure to<\/p>\n
report as prescribed and therefore, prosecution of<\/p>\n
the petitioners in Crl.M.C.No.2127\/2007 is only an<\/p>\n
abuse of process of the court and in any case, on<\/p>\n
the materials produced along with the final report,<\/p>\n
petitioners cannot be convicted under Section 7<\/p>\n
read with Section 14 of Foreigners Act.       It was<\/p>\n
also pointed out by learned counsel appearing for<\/p>\n
the  petitioner     in Crl.M.C.No.1561\/2007  that  at<\/p>\n
best, for non compliance of the provisions of the<\/p>\n
Registration     of  Foreigners  Act,  petitioner  is<\/p>\n
liable to pay penalty as provided under Section 5<\/p>\n
and as prosecution is only under the Foreigners<\/p>\n
Act, the prosecution is bad.\n<\/p>\n
    6. Learned Director General of Prosecutions<\/p>\n
submitted that there is allegation in Annexure-A<\/p>\n
final     report     in   Crl.M.C.No.2127\/2007   that<\/p>\n
CRMC 1561&2127\/07           6<\/span><\/p>\n
petitioners, in violation of the law, did not<\/p>\n
report   the     residence of  Srilankan citizens  in<\/p>\n
Dwaraka Hotel and therefore, ingredients of an<\/p>\n
offence under Section 7 read with Section 14 of<\/p>\n
Foreigners Act is made out and if that be so, the<\/p>\n
case cannot be quashed and at best, petitioners<\/p>\n
could seek an order of discharge from the concerned<\/p>\n
Magistrate.       Learned    Director   General    of<\/p>\n
Prosecutions also pointed out that in Annexure-2<\/p>\n
final report in Crl.M.C.No.1561\/2007, there is a<\/p>\n
specific    allegation    that in  violation  of  the<\/p>\n
provisions, residence of the foreigners was not<\/p>\n
reported and that the accused kept Form-C at the<\/p>\n
resort   itself     and  when, there  are  sufficient<\/p>\n
allegations      that  accused  did  not  report  the<\/p>\n
residence of foreigners in their resort as provided<\/p>\n
under Section 7 and it is punishable under Section<\/p>\n
14, the cases cannot be quashed.         It was also<\/p>\n
pointed out that in exercise of the powers under<\/p>\n
Section 3 of Foreigners Act, Foreigners (Report to<\/p>\n
CRMC 1561&2127\/07          7<\/span><\/p>\n
Police) Order, 1971 was made, which provides that<\/p>\n
every householder or other person shall report to<\/p>\n
the officer in charge of the nearest police station<\/p>\n
about the arrival or presence in his household or<\/p>\n
in any premises occupied by him or under his<\/p>\n
control, of any foreigner, if he knows or has<\/p>\n
reason to believe that he is a foreigner and there<\/p>\n
is violation of the said order and hence, an<\/p>\n
offence under Section 7, which is punishable under<\/p>\n
Section 14 of Foreigners Act, is made out and<\/p>\n
therefore, the case cannot be quashed.<\/p>\n
    7. As is clear from the statement of objects<\/p>\n
and reasons, the Foreigners Act, 1946 was enacted,<\/p>\n
as Registration of Foreigners Act, 1939 has been<\/p>\n
found to be ineffective and inadequate.   Section 3<\/p>\n
provides    for   making  either generally or   with<\/p>\n
respect to all foreigners or with respect to any<\/p>\n
particular foreigner or any prescribed class or<\/p>\n
description      of   foreigner,  for   prohibiting,<\/p>\n
regulating or restricting the entry of foreigners<\/p>\n
CRMC 1561&2127\/07           8<\/span><\/p>\n
into   India    or  for  their  departure.  Section  7<\/p>\n
prescribes     an  obligation  on  the  hotel  keeper.<\/p>\n
Section 7(1) reads:\n<\/p>\n<\/p>\n
        “It shall be the duty of the keeper
\n        of any premises whether furnished or
\n        unfurnished where lodging or sleeping
\n        accommodation is provided for reward,
\n        to submit to such person and in such
\n        manner such information in respect of
\n        foreigners     accommodated   in    such
\n        premises, as may be prescribed.<\/p>\n
        Explanation.-       The      information
\n        referred to in this sub-section may
\n        relate     to   all  or   any   of  the
\n        foreigners     accommodated   at    such
\n        premises and may be required to be
\n        submitted     periodically  or  at   any
\n        specific time or occasion.”\n<\/p><\/blockquote>\n
Section    14    of  Foreigners   Act  is  the   penal<\/p>\n
provision.     It reads:\n<\/p>\n<\/p>\n
         “14.    Penalty  for  contravention  of
\n         provisions of the Act, etc.- Whoever-\n<\/p><\/blockquote>\n
             a)   remains in any area in India
\n             for a period exceeding the period
\n             for which the visa was issued to
\n             him;<\/p><\/blockquote>\n
             (b) does any act in violation of
\n             the conditions of the valid visa<\/p>\n
CRMC 1561&2127\/07          9<\/span><\/p>\n
             issued to him for his entry and
\n             stay    in  India  or   any   part
\n             thereunder;<\/p><\/blockquote>\n
              (c) contravenes the provisions of
\n              this Act or any any other made
\n              thereunder or any direction given
\n              in pursuance of this Act or such
\n              other   for  which  no   specific
\n              punishment is provided under this
\n              Act,<\/p>\n
         shall be punished with imprisonment
\n         for a term which may extend to five
\n         years and shall also be liable to
\n         fine; and if he has entered into a
\n         bond in pursuance of clause(f) of
\n         sub-section (2) of Section 3, his
\n         bond    shall be  forfeited, and   any
\n         person bound thereby shall pay the
\n         penalty thereof or show cause to the
\n         satisfaction of the convicting Court
\n         why such penalty should not be paid
\n         by him.”<\/p><\/blockquote>\n
    8. The statement of objects and reasons of<\/p>\n
Registration of Foreigners Act, 1939 show that it<\/p>\n
was enacted as Government of India should, at all<\/p>\n
times, have complete information as to the number<\/p>\n
and whereabouts of foreigners in the country, not<\/p>\n
only for national defence, but also for replying<\/p>\n
the enquiries as to the whereabouts of foreigners<\/p>\n
CRMC 1561&2127\/07          10<\/span><\/p>\n
received from their relatives. Section 3 of the<\/p>\n
said   Act     provides  for  making   Rules.    The<\/p>\n
Registration of Foreigners Rules, 1992 is made<\/p>\n
under Section 3 of that Act.\n<\/p>\n
    9.    Hotel   keeper  is   not  defined   in  the<\/p>\n
Foreigners Act, 1946 or in the Foreigners Order,<\/p>\n
1948, made in exercise of the powers conferred<\/p>\n
under Section 3 of Foreigners Act. The Act and the<\/p>\n
Order    do    not  contain  a   provision  regarding<\/p>\n
particulars     to  be furnished  as  provided  under<\/p>\n
Section 7 of Foreigners Act. It also does not<\/p>\n
prescribe any specified form under Section 7.    What<\/p>\n
is provided under sub-section (1) of Section 7 is<\/p>\n
only an obligation “to submit to such person and in<\/p>\n
such   manner     such  information  in   respect  of<\/p>\n
foreigners accommodated in such premises as may be<\/p>\n
prescribed.” Under Section 2(b), ‘prescribed’ is<\/p>\n
defined as prescribed by orders made under the said<\/p>\n
Act.   Foreigners Order, 1948 does not provide any<\/p>\n
guideline to fix the identity of “such person” to<\/p>\n
CRMC 1561&2127\/07         11<\/p>\n
whom the report is to be submitted as provided<\/p>\n
under Section 7.       It also does not show the<\/p>\n
“manner” in which the report is to be submitted.<\/p>\n
Though the Foreigners (Report to Police) Order,<\/p>\n
1971 was made by the Central Government under<\/p>\n
Section 3 of Foreigners Act, 1946 and the said<\/p>\n
order provides that every householder shall report<\/p>\n
to the nearest Police Officer regarding the arrival<\/p>\n
of a foreigner, it also does not prescribe “the<\/p>\n
manner”    in    which the  information is  to   be<\/p>\n
furnished. When the Act provides for furnishing<\/p>\n
report in respect of foreigners accommodated in<\/p>\n
such manner as prescribed and when the Foreigners<\/p>\n
Order is made in exercise of the powers under<\/p>\n
Section 3, details of the form and the person to<\/p>\n
whom it is to be furnished and the manner in which<\/p>\n
it is to be furnished, should have been specified<\/p>\n
in the Order so made, to avoid any confusion at a<\/p>\n
later stage. It is seen that Foreigners Order, 1971<\/p>\n
was made and published on 14.12.1971, in exercise<\/p>\n
CRMC 1561&2127\/07          12<\/span><\/p>\n
of  the    powers    conferred  under  Section 3 of<\/p>\n
Foreigners Act. Rule 2 thereunder reads:<\/p>\n
        “Every    householder  or  other person
\n        shall report to the officer-in-charge
\n        of the nearest police station about
\n        the     arrival  or   presence  in  his
\n        household or in any premises occupied
\n        by him or under his control of any
\n        foreigner, if knows, or has reason to
\n        believe that he is a foreigner.”\n<\/p><\/blockquote>\n
As the Order came into force at once as provided<\/p>\n
therein, every householder or other person, who<\/p>\n
provide such accommodation, shall report to the<\/p>\n
officer in charge of the nearest police station,<\/p>\n
the arrival or presence in his household or in any<\/p>\n
premises occupied by him or under his control, of<\/p>\n
any foreigner, if he knows, or has reason to<\/p>\n
believe that he is a foreigner. But, in the absence<\/p>\n
of a prescribed form made under the Foreigners Act,<\/p>\n
1946 or the Foreigners Order, 1948 or 1971, a hotel<\/p>\n
keeper of any premises, where, lodging or sleeping<\/p>\n
accommodation is provided for reward cannot be<\/p>\n
CRMC 1561&2127\/07         13<\/p>\n
prosecuted for the reason that information is not<\/p>\n
furnished in a prescribed manner.   True, under the<\/p>\n
Order, 1971, he is bound to submit a report, though<\/p>\n
not in the prescribed form, to the officer in<\/p>\n
charge of the nearest police station about the<\/p>\n
arrival or presence in his household or in any<\/p>\n
premises occupied by him or under his control of<\/p>\n
any foreigner, if he knows, or has reason to<\/p>\n
believe that he is a foreigner. If not furnished,<\/p>\n
he is liable for punishment as provided under<\/p>\n
Section 7 read with Section 14 of Foreigners Act.<\/p>\n
    10.     As distinct from the Foreigners Act and<\/p>\n
Foreigners Order, Registration of Foreigners Rules,<\/p>\n
1992, under Rule 14, prescribes the manner in which<\/p>\n
a keeper of the hotel has to furnish the necessary<\/p>\n
particulars. It reads:\n<\/p>\n<\/p>\n
         “14. Report to be made to and by
\n         hotel keepers.- (1) Every keeper of
\n         a hotel shall require every visitor
\n         to     the hotel   to  furnish   the
\n         particulars necessary for recording,
\n         and sign, on his arrival at the<\/p>\n
CRMC 1561&2127\/07           14<\/span><\/p>\n
         hotel, his name and nationality in a
\n         register maintained for the purpose
\n         in Form F and, it any such visitor
\n         is a foreigner shall further require
\n         him;\n<\/p><\/blockquote>\n
               (a) on his arrival at such a
\n               hotel  to   furnish  the   other
\n               particulars specified in Items 4
\n               to 10 of the said register; and<\/p>\n<\/blockquote>\n
               (b) at   the    time   of    his
\n               departure from such a hotel to
\n               furnish     the      particulars
\n               necessary for recording in the
\n               said register, the date and time
\n               of his departure and the address
\n               to which he is proceeding.\n<\/p><\/blockquote>\n
         (2) The register prescribed by sub-
\n         rule(1) shall at all time be made
\n         available    for  inspection,  on  the
\n         demand of any Registration Officer,
\n         any magistrate or any police officer
\n         not     below   the   rank   of   head
\n         constable.\n<\/p><\/blockquote>\n
         (3)     Every visitor  to   any  hotel
\n         shall, on being required so to do by
\n         the keeper of the hotel, furnish the
\n         particulars necessary for recording,
\n         and sign, his name and nationality,
\n         in the register referred to in sub-
\n         rule(1), and if such visitor is a
\n         foreigner, shall also,-\n<\/p><\/blockquote>\n
               (a) on his arrival at such a
\n               hotel    furnish    the    other
\n               particulars specified in Items 4
\n               to 10 of the said register; and<\/p>\n
CRMC 1561&2127\/07           15<\/span><\/p>\n<\/blockquote>\n
               (b) at the time of his departure
\n               from  such  hotel,  furnish  the
\n               particulars    necessary     for
\n               recording, in the said register,
\n               the  date   and   time  of   his
\n               departure  and  the  address  to
\n               which he is proceeding.\n<\/p><\/blockquote>\n<\/blockquote>\n
         (4) Every particulars, other than
\n         the signature of the keeper of a
\n         hotel    or   a   visitor,  which  is
\n         required by this rule to be recorded
\n         in    the  said   register  shall   be
\n         recorded by the keeper of the hotel
\n         and in the English language, if he
\n         is so able, or otherwise, in an
\n         Indian language.\n<\/p><\/blockquote>\n
         (5) If a visitor does not understand
\n         the English language, it shall be
\n         duty of the keeper of the hotel, if
\n         so    requested  to  explain   to  the
\n         visitor    the  requirements  of  this
\n         rule and Form F.\n<\/p><\/blockquote>\n
         (6) The keeper of the hotel shall,
\n         as soon as may be but not more than
\n         twenty-four hours, after the arrival
\n         of any foreigner, transmit a copy of
\n         Form    C,  duly  completed  from  the
\n         particulars    furnished  by  such   a
\n         foreigner,     to   the   Registration
\n         Officer.\n<\/p><\/blockquote>\n
         (7) For the purpose of this rule,-\n<\/p><\/blockquote>\n
               (a) “hotel”     includes     any
\n               boarding-house,    club,    dak-
\n               bungalow,  rest   house,  paying
\n               guest  house,  sarai   or  other<\/p>\n
CRMC 1561&2127\/07           16<\/span><\/p>\n
               premises of like nature;\n<\/p><\/blockquote>\n
               (b) “keeper of a hotel” means
\n               the person having the management
\n               of  a  hotel  and  includes  any
\n               person authorised by him, and
\n               competent to perform the duties
\n               of the keeper of the hotel under
\n               this rule;\n<\/p><\/blockquote>\n
               (c) “sign” includes, in respect
\n               of a visitor who is unable to
\n               write, the making of a thumb
\n               impression  or   other  mark  by
\n               means of which he is accustomed
\n               to attest a document; and<\/p>\n<\/blockquote>\n
               (d) “visitor” means a person for
\n               whom accommodation is provided
\n               at a hotel.\n<\/p><\/blockquote>\n
         (8)     Copies  of   Form  C  may  be
\n         obtained, on application from any
\n         Registration Officer.”<\/p><\/blockquote>\n
    11. When a person, who is not a citizen of<\/p>\n
India, who is the foreigner as defined under the<\/p>\n
Foreigners Act, 1946 and Registration of Foreigners<\/p>\n
Act, 1939, is accommodated in a hotel or resort, a<\/p>\n
report    as    provided  under   Section  7  of the<\/p>\n
Foreigners Act is to be furnished and if not it is<\/p>\n
punishable under Section 14(c) of the Act.      But,<\/p>\n
CRMC 1561&2127\/07           17<\/span><\/p>\n
the obligation under the Section and consequent<\/p>\n
culpability is only on the keeper of the premises.<\/p>\n
If we go by dictionary meaning, keeper could only<\/p>\n
be some one in charge of the hotel or resort.        If<\/p>\n
an attendant or manager is appointed in charge of<\/p>\n
the hotel or resort, then the owner or owners will<\/p>\n
not be the keeper and it so, it is the person in<\/p>\n
charge of the resort or hotel, who is obliged under<\/p>\n
the Section to furnish the information provided<\/p>\n
under Section 7 of the Act.       If so, the owner of<\/p>\n
the resort or hotel cannot be prosecuted for the<\/p>\n
offence under section 14(c) of the Act.<\/p>\n
    12.     Section 3 of Registration of Foreigners<\/p>\n
Act empowers the Central Government to make Rules<\/p>\n
after previous publication by notification in the<\/p>\n
Official    Gazette    for   requiring  any   foreigner<\/p>\n
entering or being present in India to report his<\/p>\n
presence to a prescribed authority within such time<\/p>\n
and in such manner and with such particulars as<\/p>\n
prescribed.      Registration of Foreigners Rules, 1992<\/p>\n
CRMC 1561&2127\/07           18<\/span><\/p>\n
published in Official Gazette dated 19th March, 1992<\/p>\n
in exercise of the powers conferred under Section<\/p>\n
3, under Rule 14 provides for furnishing report to<\/p>\n
be made by hotel keeper.        Sub-rule (7) defines<\/p>\n
keeper of a hotel.        Form-C provided in Rule 14<\/p>\n
contains the details of the hotel, name of the<\/p>\n
foreign   visitor,    his  nationality,   details  of<\/p>\n
passport, address in India, date of arrival in<\/p>\n
India and proposed duration of stay in India, etc.<\/p>\n
Failure to furnish Form-C as provided under Rule 14<\/p>\n
would attract an offence punishable under Section 5<\/p>\n
of Registration of Foreigners Act, 1939.    Section 5<\/p>\n
reads:\n<\/p>\n<\/p>\n
         “5.     Penalties.-  Any  person  who
\n         contravenes,      or    attempts   to
\n         contravene or fails to comply with,
\n         any provision of any rule made under
\n         this Act shall be punished, if a
\n         foreigner, with imprisonment for a
\n         term which may extend to one year or
\n         with fine which may extend to one
\n         thousand rupees or with both, or if
\n         not a foreigner, with fine which may
\n         extend to five hundred rupees.”\n<\/p><\/blockquote>\n
CRMC 1561&2127\/07         19<\/p>\n
Contravention of the relevant Rules as provided<\/p>\n
under the Registration of Foreigners Rules, 1992,<\/p>\n
would attract the offence provided under Section 5<\/p>\n
of the Registration of Foreigners Act.<\/p><\/blockquote>\n
    13.    It    is,  thus, clear  that  when   the<\/p>\n
contravention is that of the Foreigners (Report to<\/p>\n
Police) Order, 1971 or the Foreigners Order, 1948<\/p>\n
and thereby the Foreigners Act, prosecution could<\/p>\n
only be under Section 7 read with Section 14 of the<\/p>\n
Foreigners     Act.   On  the other  hand, if   the<\/p>\n
contravention is of the provisions of Registration<\/p>\n
of Foreigners Act or Registration of Foreigners<\/p>\n
Rules, prosecution could only be under Section 5 of<\/p>\n
the Registration of Foreigners Act.  Prosecution in<\/p>\n
such a case cannot be under Section 7 or 14 of the<\/p>\n
Foreigners Act.\n<\/p>\n
    14. Evidently, the Investigating Officers in<\/p>\n
these    cases    were under the  impression   that<\/p>\n
information to be furnished under Section 7 of<\/p>\n
Foreigners Act and the report to be filed under<\/p>\n
CRMC 1561&2127\/07          20<\/span><\/p>\n
Rule 14 of Registration of Foreigners Rules are the<\/p>\n
same.   That     could only  be  the reason  why   in<\/p>\n
Annexure-2 final report in Crl.M.C.No.1561\/2007, it<\/p>\n
is alleged that in violation of the Rules, Form-C<\/p>\n
was not forwarded and instead, it was kept at the<\/p>\n
resort itself and thereby alleged commission of the<\/p>\n
offences under Sections 7 and 14 of the Foreigners<\/p>\n
Act. Similarly, that could only be the reason why<\/p>\n
in   Annexure-A      final   report  in   Crl.M.C.No.<\/p>\n
2127\/2007,     it  is  alleged that  report was   not<\/p>\n
furnished in the prescribed form, when neither<\/p>\n
Section 7 nor the Rules prescribe any form.      Even<\/p>\n
if petitioners did not furnish a report as provided<\/p>\n
under Rule 14 of Registration of Foreigners Rules,<\/p>\n
they cannot be prosecuted under Section 7 read with<\/p>\n
Section     14     of  Foreigners   Act.   Therefore,<\/p>\n
prosecution of the petitioners under the Foreigners<\/p>\n
Act, on these allegations, is only an abuse of<\/p>\n
process of the court.\n<\/p>\n
CRMC 1561&2127\/07          21<\/span><\/p>\n
    15.    When    the  final report   and  materials<\/p>\n
produced along with the final report establish that<\/p>\n
there is no material to prove commission of an<\/p>\n
offence, continuation of the proceedings will serve<\/p>\n
no  fruitful      purpose,  as ultimately,  even   if<\/p>\n
petitioners      are to  be  tried,  they  cannot be<\/p>\n
convicted for the offence. In order to convict the<\/p>\n
petitioners, there should be a specific case that<\/p>\n
petitioners did not report the residence of the<\/p>\n
foreign citizens in their resort or hotel, in<\/p>\n
violation of the provisions contained in Section 7<\/p>\n
of Foreigners Act.     If that be so, there should be<\/p>\n
a  specific      allegation that  in  spite  of   the<\/p>\n
provision that every householder shall report to<\/p>\n
the officer in charge of the nearest police station<\/p>\n
about the arrival or presence of foreigners in<\/p>\n
their household or premises, petitioners did not<\/p>\n
report the matter to the officer in charge of the<\/p>\n
nearest police station. When there is no such case<\/p>\n
and  no   investigation    was conducted  in  nearest<\/p>\n
CRMC 1561&2127\/07           22<\/span><\/p>\n
police station to find out whether such report\/<\/p>\n
information was received from the hotel or resort<\/p>\n
of the petitioners or records were verified in the<\/p>\n
resort    or     hotel  to  find   out  whether  such<\/p>\n
information provided under Section 7 of the Act was<\/p>\n
furnished or not, even if petitioners are to be<\/p>\n
tried,    they    cannot  be   convicted.    In  such<\/p>\n
circumstances,      interest of justice warrants that<\/p>\n
prosecution as against the petitioners are to be<\/p>\n
quashed.\n<\/p>\n
    16.    Before    parting  with the   case, it   is<\/p>\n
necessary to remind the Central Government of the<\/p>\n
necessity to make an effective order or rule, in<\/p>\n
exercise    of    the  powers   under  Section  3  of<\/p>\n
Foreigners Act to enforce Section 7 of the Act.<\/p>\n
When    the     infiltration  of   extra   territorial<\/p>\n
terrorists is in the increase and security of the<\/p>\n
nation and the public are in danger, Government<\/p>\n
cannot be a silent spectator and instead have to<\/p>\n
make use of all the relevant provisions in the<\/p>\n
CRMC 1561&2127\/07        23<\/p>\n
statute to prevent any such threat. Proper and<\/p>\n
effective enforcement of the provisions of Section<\/p>\n
7 of the Foreigners Act would definitely aid the<\/p>\n
police and the enforcement authorities to trace out<\/p>\n
the stay and movement of such foreign nationals<\/p>\n
within India.     It is for the Government to make<\/p>\n
necessary Rules prescribing the details of the<\/p>\n
information to be furnished under Section 7 and<\/p>\n
take effective steps for the proper security of<\/p>\n
this great nation.\n<\/p>\n
     Petitions are allowed. C.C.No.1623\/2005 on the<\/p>\n
file of Judicial First Class Magistrate’s Court,<\/p>\n
Varkala and C.C.No.13\/2007 on the file of Chief<\/p>\n
Judicial Magistrate’s Court, Ernakulam as against<\/p>\n
the petitioners are quashed.\n<\/p>\n
23rd July, 2009       (M.Sasidharan Nambiar, Judge)
\ntkv<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Vijukumar vs State Of Kerala on 23 July, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-226919","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nVijukumar vs State Of Kerala on 23 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vijukumar-vs-state-of-kerala-on-23-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vijukumar vs State Of Kerala on 23 July, 2009 - 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