Karnataka High Court
Mr Junia Erastus Mayemba vs The Bureau Of Immigration on 12 April, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12th DAY OF APRIL 2017
BEFORE
THE HON'BLE Mr. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION NO.1305/2017
BETWEEN:
Mr.Junia Erastus Mayemba,
S/o.Mayemba,
Aged about 27 years,
R/at No.15, Sathnur village,
Bagalur Post,
Bagalur Road, Jala Hobli,
Bangalore North Taluk-562 149. ...PETITIONER
(By Sri.Jayaram N.Siddi, Advocate)
AND:
1. The Bureau of Immigration,
Represented by the Commissioner,
Ministry of Home Affairs,
Government of India,
East Block-VIII, Sector-1,
R.K.Puram,
New Delhi-110 066.
2. Foreigners Regional
Registration Office,
5th Floor, 'A' Block,
TTMC,
2
BMTC Bus Stand Building,
K.H.Road,
Shanti Nagar,
Bangalore-560 027.
3. State,
By the Station House Officer,
Balaguru Police Station,
Bangalore-562 149. ...RESPONDENTS
(By Sri.Vijayakumar Majage, Addl. SPP for R-3,
Sri.S.R.Doddawad, Advocate for R-1 & 2)
This Criminal Petition is filed under Section 482
praying to quash the F.I.R in Crime No.85/2014 in
C.C.No.4730/2015 on the file of Principal Civil Judge &
JMFC, Devanahalli for offence punishable under Rule
7(2) of Foreigners Order Act, 1948 and Section 14 of
Foreigners Act, 1964.
This Criminal Petition coming on for admission,
this day, the Court made the following:-
ORDER
Heard the learned counsel for the petitioner and the learned counsel for respondents.
2. The facts are as follows:
The petitioner is a 27 year old male hailing from the Republic of Uganda. The petitioner is said to have 3 come to India as a student and got himself admitted to Sree Omkar College of Commerce and Management, Bangalore to the B.Com course and the course was for the duration between 2011 and 2015. However, it was found the petitioner could not take the exam because the college was not recognized. In view of this embargo, the petitioner could not complete his course, but he continued to stay in India though his Visa had expired in the year 2014. But however, it transpires on 25.10.2013 itself, a memorandum was issued by the Assistant Foreigners Regional Registration Officer to the police to state that the present petitioner had overstayed in India and therefore, had committed an offence under Rule 7(2) of the Foreigners Order and Section 14 of Foreigners Act, 1946. An F.I.R was registered in Crime No.85/2014 by the respondent/Police, viz., Bagalur Police Station. On completion of investigation, the respondents had filed a charge-sheet against the petitioner for an offence punishable under Rule 7(2) of 4 the Foreigners Order and Section 14 of Foreigners Act, 1946 as aforesaid and a case is pending in C.C.No.4730/2015 before the Civil Judge and JMFC, Devanahalli. The petitioner claims that the proceedings initiated were not in accordance with law as the petitioner's Visa expired as on 13.05.2014 and not in the year 2013. However, it was the residential permit which had expired and not Visa. In any event, the petitioner is before this Court to claim that he was forced to stay in India on account of the circumstance that he was unable to complete his education and he could not return to his country without completing his education and this is what motivated him to stay back and that the petitioner along with other students had sought various ways and means to continue their stay and had even approached the Karnataka State Human Rights Commission and had filed a complaint against the college. It was the route cause for their situation.
Karnataka Human Rights Commission had passed an 5 order on 15.12.2014 directing the F.R.R.O to renew the Visa from 12.05.2014, which was one other prayer that was made before the Human Rights Commission. This statement is, however, found to be incorrect as the State Human Rights Commission has merely stated that the petitioner and other students should approach the Students' Grievance Redress Cell for redressal of their problems regarding student Visa, residential permit and suchl other issues relating to F.R.R.O. It is in this background that the petitioner is before this Court.
3. The petitioner now claims that he is not in a position to continue his education and as there is no scope of recognition being given to his college and he himself is not willing to continue to stay in India, but he is before this Court to plead that if he is permitted to leave the country, he would do so and that he can be barred from returning to India in view of the default ocmmitted by him and he has also assured that he has 6 booked air ticket to leave the country to go back to his country and the flight is scheduled on 30th April 2017.
4. Learned counsel for Respondent No.2 has entered appearance and filed statement of objections to contend that the petitioner is guilty of not only overstaying in India, but also dodging the law. The petitioner deserves no mercy and he may be proceeded with in accordance with law.
5. It is an admitted fact that the residential permit expired on 24.06.2012, is registered on 10.06.2013, after delay of 11 months. On verification from his college in which he was said to be studying, it was indicated that the petitioner has not completed seven papers for the first and second semester and petitioner remained absent for third semester and he had stayed unauthorisedly in India. He was said to be irregular to classes and since he has violated the rules and regulations without professing the purpose for which 7 the Visa was issued to him, as he was not a student at all and having overstayed without residential permit, he would have to be proceeded against in accordance with law, viz., under sub-clause 2 Clause 2 of the Foreigners Act, 1946. The respondent No.2 is empowered to take decisions with regard to extension of Visa after making due enquiries and the security of the country being foremost, petitioner shall necessarily be deported and after giving due opportunity to exit from the country. That the respondents are acting well within their powers while initiating action against the petitioner.
6. Given the above facts and circumstances, the admitted circumstance that the petitioner has overstayed and this being in violation of the law, if the petitioner should be penalized and if he should suffer imprisonment, his overstay would only be extended further. Any such proceedings taken against him would necessarily be at the cost of the State exchequer. If the 8 petitioner is now ready to leave the country, it is appropriate if he is sent out of the country at the earliest. Therefore, it would not be feasible to carry on any further proceedings against the present petitioner as the justice dispensation system of this country is also over-loaded and we need not add one more of the kind in the present case and it is in the interest of all, particularly of the State exchequer to ensure that the present petitioner leaves the country at the earliest. In this regard, the formalities of procuring an exit permit is necessary. The petitioner shall be provided an exit permit by the F.R.R.O, who shall issue such an exit permit without insisting upon the petitioner facing action for violation of rules and regulations as already alleged and the criminal case pending against the petitioner should also be dropped provided it is ensured that on issuance of such exit permit, the petitioner is excorted by the Airport Police till he is subjected to security check and onward journey to the country as 9 per the ticket which is now procured for the scheduled Flight No.66F67A leaving at 6.45 hours on 30.04.2017.
7. Liberty is reserved to the 1st respondent to black-list the petitioner from re-entering the country after he leaves. Consequently, subject to above conditions being complied with, criminal proceedings pending in C.C.No.4730/2015 on the file of Principal Civil Judge and J.M.F.C, Devanahalli, stands quashed. Accordingly, Petition is allowed.
Sd/-
JUDGE bnv*