Karnataka High Court
Nzabandora Shilaire vs Union Of India on 3 March, 2017
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF MARCH 2017
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.8011 OF 2016
BETWEEN
NZABANDORA SHILAIRE @ AFGEX,
S/O.RUTAGANDA,
AGED ABOUT 25 YEARS,
R/A M.S.NAGARA,
K.N.S.COLLEGE,
BANGALORE-560064.
... PETITIONER
(By Sri: DILRAJ JUDE ROHIT SEQUEIRA, ADVOCATE)
AND
1. UNION OF INDIA
BUREAU OF IMIGRATION,
REP. BY MINISTRY OF EXTERNAL AFFAIRS,
REP. BY ADDITIONAL SOLICITOR GENERAL,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
2. THE STATE
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU POLICE STATION,
BANGALORE-560001.
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3. SUBRAMANI
S/O LATE MUNIYAPPA,
AGED ABOUT 37 YEARS,
R/A SHIVAPURA VILLAGE,
JALA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE-560077.
... RESPONDENTS
(By Sri: ADDITIONAL SOLICITOR GENERAL FOR R1
SRI: VIJAYKUMAR MAJAGE, ADDL. SPP. FOR R2
NOTICE TO R3 D/W)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH
THE ENTIRE PROCEEDINGS AND THE CHARGE SHEET PENDING
IN C.C.NO.1903/2016 ON THE FILE OF PRL. C.J. AND J.M.F.C.,
DEVANAHALLI, BENGALURU RURAL DISTRICT, PERTAINING TO
BAGALUR POLICE STATION, FOR THE OFFENCES P/U/S
341,323,324,353,332,504,506 R/W 149 OF IPC RULE 7(2) OF
FOREIGNERS ORDER 1948 AND SEC.14 OF THE FOREIGNERS
ACT, 1946.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 14.02.2017 AND COMING ON FOR
PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J, MADE
THE FOLLOWING:-
ORDER
Heard the learned counsel for the petitioner and Sri. Vijay Kumar Majage, Addl. SPP for respondent No.2. 3
2. This petition is filed under Section 482 Cr.P.C. seeking to quash the entire proceedings and the charge sheet pending in C.C.No.1903/2016 on the file of the Prl. Civil Judge & JMFC, Devananahalli, Bengaluru Rural District for the offences punishable under sections 341, 323, 324, 353, 332, 504, 506 r/w 149 Indian Penal Code and Rule 7(2) of the Foreigners Order, 1948 and Section 14 of the Foreigners Act, 1946.
3. Initially, FIR was registered against the petitioner and 6 others for the alleged offences punishable under sections 341, 323, 324, 353, 332, 504, 506 r/w 149 Indian Penal Code. However, after investigation, charge sheet has been laid showing the petitioner herein as accused No.1 and in addition to the above sections, Rule 7(2) of the Foreigners Order, 1948 and section 14 of the Foreigners Act, 1946 has been alleged against the petitioner and other accused. 4
4. The petitioner has sought for quashing of the entire proceedings and to allow him to go back to his home country on the ground that there are no chances of the petitioner returning to India and committing similar offences. It is further stated that the accused/petitioner is ready to go back to his native country. In the course of the argument, learned counsel for the petitioner has relied on two decisions of this court.
5. In MBA Chukuwadi Stanley vs. Union of India & Another (W.P.No.54157/2016 dated 7.11.2016) this court has commuted the remaining portion of the petitioner's sentence to facilitate the petitioner therein to leave the country. In the said case, the petitioner/accused therein was found guilty of the offences punishable under section 420 of Indian Penal Code and Rule 7(2) of the Foreigners Order, 1948 and he had almost completed the term of punishment and in that view of the matter, this court found it proper to commute the remaining portion of the sentence and allowed him to leave for his home land.
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6. In the second case i.e., Mr.Freddy Tshimanga Kanyama vs. The Bureau of Immigration & Others (Crl.P.No.5508/2016 disposed of on 16.9.2016), the proceedings before the court below were quashed and the petitioner was directed to leave the country forthwith. In the said case, the FIR was registered against the petitioner/accused therein under Rule 7(2) of the Foreigners Order, 1948 and section 14 of the Foreigners Act, 1946 and subsequently, a charge sheet was filed under the above provisions. The case was pending since 2013. This Court observed that since the object of the Foreigners Act and Rules are to deter foreigners from over-staying in India and if the petitioner for one reason or other did not obtain extension of VISA from 2013, the petitioner being prosecuted and remaining in India would run counter-productive. It is best to get him rid of India at the earliest.
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7. In the instant case, as it could be seen from the order-sheet maintained in C.C.No.1903/2016, after the submission of the charge-sheet, the petitioner herein has been admitted to bail. In this context, it may be relevant to refer to the case of JANARAJAN @ KRISHNAMURALI vs. STATE OF TAMIL NADU [(2005) 5 CTC 762 (Madras)], wherein the Madras High Court has reiterated that if bail is granted to persons who have violated the provisions of the Foreigners Act, such persons cannot stay in India even for a day without valid passport and visa.)
8. The petitioner has not taken up any plea that the charge-sheet laid against him do not make out the offences alleged against him. Therefore, there is no basis for quashing the proceedings. Merely because the petitioner has been over-staying in India after the expiry of the VISA period cannot be a ground to seek quashment of the charge-sheet if it otherwise makes out the offences alleged against the petitioner. Under the said circumstances, the only relief that 7 could be granted to the petitioner is to direct the concerned Criminal Court to take up the case of the petitioner for trial on top priority. In this regard, this Court in Crl.P.No.7904/2015 dated 18.2.2016 has observed that in the event of filing charge- sheet against any foreign national for violation of the relevant provisions of Foreigners Act, 1946, the concerned Criminal Court will have to take up such cases for trial on top priority, whether the foreign national is on bail or in judicial custody. Reiterating the above observation, this petition is disposed of with a direction to the learned Magistrate to dispose of C.C.No.1903/2016 on top priority, within an outer limit of three months from the date of communication of this order.
Petition is disposed of accordingly. Office is directed to communicate this order to the Prl. Civil Judge & JMFC, Devananahalli, Bengaluru Rural District.
Sd/-
JUDGE *mn/bss