Gujarat High Court
Viral Jayantilal Parikh & 2 vs State Of Gujarat & on 5 May, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/9900/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 9900 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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VIRAL JAYANTILAL PARIKH & 2....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR. BHADRISH S RAJU, ADVOCATE for the Applicant(s) No. 1 - 3
SAIRICA S RAJU, ADVOCATE for the Applicant(s) No. 1 - 3
MS. PATHAK, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/05/2017
ORAL JUDGMENT
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1. Rule returnable forthwith. Ms. Pathak, the learned APP, waives service of notice of rule for and on behalf of the respondents.
2. By this writ application under Article 226 of the Constitution of India, the writ applicants, serving with the Larsen & Toubro Ltd., seek to invoke the inherent powers of this Court praying for quashing of the proceedings of the Criminal Case No.34398 of 2016 pending in the court of the learned 44th (Ad-hoc) Addl. Civil Judge & JMFC, Vadodara arising from the first information report being II-C.R. No.176 of 2016 registered with the Vadodara City Police Station, Vadodara for the offence punishable under sections 14(b) (c) and 14C of the Foreigners Act, 1946.
3. The case of the prosecution may be summarized as under;
3.1 The three writ applicants before me are serving with a Multinational Company, namely, Larsen & Toubro Ltd. It is alleged that two Korean citizens viz. (i) Sung Lee Eun and (ii) Lee Cheonho of Hyosung Corporation, visited India on an E- Tourist Visa and stayed at the hotel Surya Palace, Vadodara for the period between 17.11.2015 and 19.11.2015. It is the case of the prosecution that the two Korean citizens convened meetings in connection with the tender for 400/230 KV Switchyard Package Bibyana, Bangladesh 400 MW Project with the officials of the L & T, i.e., the three applicants before this Court. According to the prosecution, the two Korean citizens could not have convened any business meetings with the applicants herein since they had come to India on an E-Tourist Visa. A tourist visa is granted to a foreigner with the sole Page 2 of 16 HC-NIC Page 2 of 16 Created On Thu Aug 17 02:37:37 IST 2017 R/SCR.A/9900/2016 JUDGMENT objective of recreation, sight seeing, casual visit to meet friends and relatives etc. and for no other purpose/activity. In such circumstances, the case of the prosecution is that the two Korean citizens committed an offence punishable under section 14(b)(c ), whereas the three applicants could be said to have abetted the main offence and committed the offence under section 14C of the Foreigners Act, 1946.
4. Mr. Raju, the learned senior counsel appearing for the applicants vehemently submitted that the entire prosecution is thoroughly misconceived. According to Mr. Raju, the prosecution is not maintainable in law. Mr. Raju submits that the three applicants are sought to be prosecuted as the abettors. According to him, no offence could be said to have been committed by the two Korean citizens, and in such circumstances, there is no question of abetting the offence. Mr. Raju invited my attention to page-11, which is a document of the Government of India pertaining to the E-Tourist Visa. In the document referred to above, the eligibility has been provided, which reads as under;
"Eligibility
1. International Travellers whose sole objective of vising India is recreation, sight seeing, casual visit to meet friends or relatives, short duration medical treatment or casual business visit.
2. Passport should have at least six months validity from the date of arrival in India. The passport should have at least two blank pages for stamping by the Immigration Officer.
3. International Travellers should have return ticket or onward journey ticket, with sufficient money to spend during higher stay in India.
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4. International Travellers having Pakistani Passport or Pakistani origin may please apply for regular Visa at Indian Mission.
5. Not available to Diplomatic/ Official Passport holders.
6. Not available to individuals endorsed on parent's/spouse's passport i.e. each individual should have a separate passport.
7. Not available to International Travel Document Holders."
5. Mr. Raju, thereafter, invited my attention to a document, which is at page-44. Its an E-mail forwarded by the Visa Officers of the Government of India. The document reads as under;
"Dear Applicant, It is to inform you that the meaning of "casual business"
is that you can do any kind of short business meetings or conference within 30 days."
6. In the document, it is clarified that if a foreigner visits India on an E-Tourist Visa, it is permissible for him to attend the business meetings with the Indian companies.
7. Mr. Raju seeks to rely on a judgment delivered by this Court dated 19th April, 2017 in the Criminal Misc. Application No.8421 of 2017.
8. In such circumstances referred to above, the learned senior counsel prays that there being merit in this application, the same be allowed and the proceedings of the criminal case Page 4 of 16 HC-NIC Page 4 of 16 Created On Thu Aug 17 02:37:37 IST 2017 R/SCR.A/9900/2016 JUDGMENT be quashed.
9. On the other hand, this writ application has been vehemently opposed by Ms. Pathak, the learned APP appearing for the State.
10. Ms. Pathak submits that the investigation is completed and the charge-sheet has been filed. The filing of the charge- sheet has culminated in the criminal case, which is pending, as on date. According to the learned APP, the filing of the charge- sheet, by itself, would indicate that there is a prima facie case to put the applicants on trial. It is submitted that once a foreigner visits India on tourist visa, he is not suppose to convene any business meetings or indulge in any business activities and the same would amount to breach of the conditions of Visa, thereby attracting the provisions of section 14(b)(c ) of the Foreigners Act. The submission of the learned APP is that the three applicants herein knew very well that the two Koreans had come on an E-Tourist Visa and were not suppose to convene any business meetings. In such circumstances, the three applicants could be said to have abetted the main offence which is punishable under section 14C of the Foreigners Act, 1946. In such circumstances referred to above, Ms. Pathak, the learned APP prays that there being no merit in this application, the same be rejected.
11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the proceedings of the criminal case could be quashed.
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12. Before adverting to the rival submissions canvassed on either sides, I must look into the provisions of the Act, 1946.
13. Section 14(b)(c) of the Act, 1946 reads as under;
"(b) does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder; "
(c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order 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.
Explanation.--For the purposes of this section, the expression "visa" shall have the same meaning as assigned to it under the Passport (Entry into India) Rules, 1950 made under the Passport (Entry into India) Act, 1920 (34 of 1920)"
14. Section 14C, which provides for penalty for abetment reads as under;
"14C Penalty for abetment- Whoever abets any offence punishable under section 14 or section 14-A or section 14-B shall, if the act abetted is committed in consequence of the abetment, be punished with the punishment provided for the offence.
Explanation- For the purposes of this section-
(I) an act or offence is said to be committed in
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consequence of the abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the offence.
(ii) the expression "abetment" shall have the same meaning as assigned to it under section 107 of the Indian Penal Code(45 of 1860)."
15. I am of the view that even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence under section 14(b)(c) of the Act, 1946 are spelt out. In such circumstances, there is no question of abetting the offence as made punishable under section 14C of the Act, 1946. The two documents referred to above makes it clear that even if a foreigner has come to India on an E- Tourist Visa, it is permissible for him to convene a business meeting. I had an occasion to consider almost an identical issue as regards the breach of the conditions of Visa and the consequences of the same in the case of Phanugorn Poo-Im vs. State of Gujarat & Anr., Criminal Misc. Application No.8421 of 2017, decided on 19th April, 2017. Let me quote the relevant observations made in the said judgment;
"12 Before adverting to the rival submissions canvassed on either side, I must look into certain provisions of the Act, 1946.
13 Section 14 of the Act, 1946 provides for penalty for contravention of provisions of the Act. Section 14 reads as under:
"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;Page 7 of 16
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(b) does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder;
(c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order 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."
14 On almost identical facts, a learned Single Judge of the Kerala High Court, in the case of Jonathan Baud vs. State of Kerala [2015 (1) KLT111] had the occasion to the consider a similar issue. In the said case, the petitioner was a citizen of Switzerland. He was sought to be prosecuted at the instance of the police, on the allegation that he attended a meting in violation of conditions of his visa. He had come to India on a tourist visa on 1st July 2014, and while on his way back, he attended a condolence meeting at Triprayar. He stepped into the meeting place and addressed the gathering voluntarily without being invited by anybody. The police of Valappad thought that he was a radical, because the meeting which he addressed was a condolence meeting organized by a political faction, recognised as a radical group. He was arrested on the spot and a crime was registered under Section 14(b) of the Act, 1946. While quashing the prosecution, the learned Single Judge held as under:
2 The specific allegation against him in the final report, under Section 14(b) of the Act, is that he attended a public meeting here in violation of the conditions of the Visa issued to him. The said prosecution is sought to be quashed under Section 482 of the Code of Criminal Procedure, on the ground that such a prosecution cannot be legally Page 8 of 16 HC-NIC Page 8 of 16 Created On Thu Aug 17 02:37:37 IST 2017 R/SCR.A/9900/2016 JUDGMENT sustained, because attending a meeting by itself will not amount to the offence punishable under Section 14(b) of the Act.
3 At the very outset I required the learned Director General of Prosecution to tell the court what condition of Visa was in fact violated by the petitioner. The learned Director General of Prosecution drew the attention of this Court to the copy of the Visa appended to the passport of the petitioner. The conditions in the said Visa are as follows: Non-extendable and non-convertible, Not valid for prohibited/restricted and contonment areas. The prosecution is not able to say whether the Visa contains any other condition. The unfortunate foreign national had to be in jail as remand prisoner for some time. However, now he is on bail. It requires to be examined thoroughly whether attending a meeting by itself will attract a prosecution under Section 14(b) of the Act. When the Court repeatedly asked the prosecution what exactly is the condition violated by the accused, the prosecution repeatedly answered that he attended a meeting when the Visa issued to him does not authorise him or allow him to attend any such meeting. Copy of the Visa appended to the petitioners passport does not contain any such condition that the tourist shall not attend any meeting in India. During arguments the learned Director General of Prosecution further submitted that if not under Section 14(b) of the Act, the prosecution can well proceed under Section 5 of the Registration of Foreigners Act 1939. This section provides that any person who contravenes, or attempts to contravene, or fails to comply with, any provision of any rule made under the 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. What is in fact made punishable under Section 5 of the Registration of Foreigners Act is violation of any Rule made by the Government under Section 3 of that Act. Section 3 of that Act provides the subjects on which Rules can be made by the Central Government. Such Rules may Page 9 of 16 HC-NIC Page 9 of 16 Created On Thu Aug 17 02:37:37 IST 2017 R/SCR.A/9900/2016 JUDGMENT provide for:
(a) 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 may be prescribed;
(b) for requiring any foreigner moving from one place to another place in India to report, on arrival at such other place, his presence to a prescribed authority within such time and in such manner and with such particulars as may be prescribed;
(c) for requiring any foreigner who is about to leave India to report the date of his intended departure and such other particulars as may be prescribed to such authority and within such period before departure as may be prescribed;
(d) for requiring any foreigner entering, being present in, or departing from India to produce, on demand by a prescribed authority, such proof of his identity as may be prescribed;
(e) for requiring any person having the management of any hotel, boarding-house, sarai or any other premises of like nature to report the name of any foreigner residing therein or whatever duration, to a prescribed authority within such time and in such manner and with such particulars as may be prescribed;
(f) for requiring any person having the management or control of any vessel or aircraft to furnish to a prescribed authority such information as may be prescribed regarding any foreigner entering or intending to depart from, India, in such vessel or aircraft, and to furnish to such authority such Page 10 of 16 HC-NIC Page 10 of 16 Created On Thu Aug 17 02:37:37 IST 2017 R/SCR.A/9900/2016 JUDGMENT assistance as may be necessary or prescribed for giving effect to this Act;
(g) for providing for such other incidental or supplementary matters as may appear to the Central Government necessary or expedient for giving effect to this Act.
4 Attending any meeting is not seen prohibited anywhere under the Rules or under the Registration of Foreigners Act, 1939 or the Foreigners Act 1946.
5 Finding that the prosecution is in fact in confusion, the learned Director General of Prosecution further argued that in view of the definition of tourist under Rule 2(j) of the Registration of Foreigners Rules 1992, the petitioner cannot be considered as a tourist, and so he cannot be considered as a tourist on valid visa. Tourist is defined as a foreigner having no residence or occupation in India, whose stay in India does not ordinarily exceed six months, who has no other object in visiting India, than recreation, sightseeing or attending, in a representative capacity, meetings convened by the Government of India or International bodies or any other meeting or conference cleared by the Government of India. Rule 2(j) of the Registration of Foreigners Rules is not a penal provision at all. It only defines who a tourist is. The purport of this definition is to guide and tell the concerned authority as to who can be considered as a tourist, and also, when, or for what all purposes a tourist Visa can be issued. It is argued that if any tourist wants to attend any meeting, it must be a meeting convened by Government of India or any International Body. Rule 2(j) of the Rules only guides and tells the authority that if any foreign national wants to come to India for attending any such meeting in a representative capacity he can be issued a valid visa. The definition covers only such meetings convened by the Government of India or International Bodies.
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6 We are proud that our constitution is the greatest in the world. One important aspect which makes it the greatest is that we the people guarantee some fundamental rights to non-citizens also. Of course the precious freedoms of speech and expression, trade and commerce, travel in any part of India, etc. guaranteed under Article 19 are not available to foreigners. But the very important fundamental rights guaranteed under Articles 14, 20 and 21 of the Constitution are available to non-citizens also. Our Constitution commands that foreign nationals coming here shall not be discriminated. They will have to be treated equally before the law, and their right to live will have to be honoured and protected. They shall not be prosecuted or convicted except for violation of any law in force in India. This is guaranteed under Article 20 of the Constitution. But it is quite unfortunate that when a foreign national came in India our police pounced on him with cynic suspicion that he is a radical.
7 The prosecution has no case anywhere in the prosecution records that the petitioner herein is a radical, or that he is a member of any radical group here or there. Every law has its spirit and objective. Application and enforcement of law without assimilating the spirit and without imbibing the objective will deface the law enforcing machinery and the judicial system. It will also defile our democratic polity governed by rule of law. Finding a foreign national just addressing a meeting our police pounced on him on cynic suspicion that he is a radical. During the proceedings this Court directed the prosecution to produce the transcript copy of the speech made by him. The prosecution could not in fact produce a proper transcript. What is made available to the Court does not contain anything objectionable. He just addressed the meeting and introduced himself. We should thank him for having appreciated the sanctity and greatness of our democratic values, and the rights guaranteed by our Constitution. I fail to understand why, or on what material, or on what basis our Page 12 of 16 HC-NIC Page 12 of 16 Created On Thu Aug 17 02:37:37 IST 2017 R/SCR.A/9900/2016 JUDGMENT police suspected that he is a radical. Just because he, out of curiosity, happened to address a condolence meeting organised by a political group, he cannot be treated as a radical, and he cannot be confined in jail as a radical. As a tourist in India he has every right to be treated equally with Indians and he has also the right to live here as guaranteed under Article 21 of the Constitution of India, so long as he continues here.
8 Coming back to Section 14(b) of the Foreigners Act, I find that the prosecution does not have any clear or definite case, as to what condition of Visa was in fact violated by the petitioner. The copy of Visa appended to his passport does not contain any such condition, that he shall not attend any meeting here. Tourists visiting Kerala can see different meetings here, organized by different political or other groups. They cannot identify whether a particular meeting is one organised by any political group, or communal group or radical group. They, out of curiosity, may just step in and view such meetings. If that is understood as violation of Visa conditions, every tourist visiting Kerala will have to be prosecuted. This is not the object of the law, and this is not the spirit of the law also. The Visa issued to the petitioner does not contain any condition that he shall not attend any meeting anywhere in India. Practically the prosecution would concede that the police does not have a definite case as to what condition of Visa was in fact violated by the petitioner. As I observed earlier, it was simply on cynic suspicion the foreign national was apprehended here, and it is quite unfortunate that he had to undergo much mental harassment and detention.
9. I find that the prosecution brought by the Valappad Police as against the petitioner herein is legally unsustainable. The prosecution does not say what condition of Visa was in fact violated by the petitioner. The learned Director General of Prosecution repeatedly argued that attending a meeting by itself will amount to violation of Visa Page 13 of 16 HC-NIC Page 13 of 16 Created On Thu Aug 17 02:37:37 IST 2017 R/SCR.A/9900/2016 JUDGMENT conditions, or violation of the Rules made under Section 3 of the Registration of Foreigners Rules. I find no such Rule prohibiting the alleged act of just attending a meeting. No doubt, continuance of this prosecution will be a sheer abuse of legal process, and the prosecution is liable to be quashed.
15 I am in complete agreement with the view taken by the learned Single Judge of the Kerala High Court and I propose to follow the same in the matter on hand.
16 In the case on hand, I repeteadly inquired with the learned A.P.P. as to which condition of the visa could be said to have been breached so as to attract the provisions of Section 14 of the Act, 1946. The only reply given to me is, having visited India on a tourist visa, the applicant could not have undertaken any official work at the place of his employment. As noted above, the copy of visa appended to the passport of the applicant does not contain any such condition. All that has been stated is that the person holding a tourist visa is not permitted to take up any employment in the country.
17 Section 14(b) of the Act, 1946 would get attracted only if it is shown that the person charged acted in violation of any of the conditions of valid visa issued to him for his entry and stay in India or any part thereunder. No condition has been prescribed in the tourist visa that the applicant herein could not have visited the unit of Apollo Tyres situated at Limda, Taluka: Waghodiya, District: Vadodara. "
16. Let me, for the time being, proceed on the footing that the two Korean Nationals committed an offence under section 14(b)(c) of the Act, 1946. Even, in such circumstances, could it be said that the three applicants herein abetted the commission of the offence so as to make them liable for the offence under section 14C of the Act, 1946. Section 14C of the Act makes it clear that the expression " abetment" shall have the same meaning as assigned to it under section 107 of the Page 14 of 16 HC-NIC Page 14 of 16 Created On Thu Aug 17 02:37:37 IST 2017 R/SCR.A/9900/2016 JUDGMENT Indian Penal Code. Section 107 of the IPC reads as under'
107. Abetment of a thing- A person abets the doing of a thing, who-
First- Instigate any person to do that thing; or Secondly: -Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing, .
Explanation1:- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2: - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
17. It is difficult for me to take the view that the three applicants herein, serving with the Larsen & Toubro Ltd. aided, instigated or entered into a conspiracy to commit an offence.
18. In my view, no case worth the name could be said to have been made out by the prosecution so as to put the three Page 15 of 16 HC-NIC Page 15 of 16 Created On Thu Aug 17 02:37:37 IST 2017 R/SCR.A/9900/2016 JUDGMENT applicants on trial.
19. In the result, this application succeeds and is hereby allowed. The proceedings of the Criminal Case No.34398 of 2016 pending in the court of the learned 44th (Ad-hoc) Addl. Civil Judge & JMFC, Vadodara are hereby quashed so far as the three applicants are concerned. All consequential proceedings pursuant thereto also stand terminated. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
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