Gujarat High Court
Sandipkumar Ramdas Prabhu vs State Of Gujarat on 13 December, 2024
NEUTRAL CITATION
R/SCR.A/3456/2015 ORDER DATED: 13/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3456 of 2015
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SANDIPKUMAR RAMDAS PRABHU
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.HRIDAY BUCH WITH DARSHAN M VARANDANI(7357) for the
Applicant(s) No. 1
MS MINI M NAIR(2689) for the Applicant(s) No. 1
MS.MONALI BHATT APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 13/12/2024
ORAL ORDER
1. Heard learned advocate Mr.Hriday Buch with learned advocate Mr.Darshan Varandani for the petitioner and learned APP Ms.Monali Bhatt for the respondent-State.
Though served, none appears for respondent No.2.
2. Considering the facts and circumstances of the case and with consent of learned advocates for the parties, the matter is taken up for final disposal forthwith.
3. By way of the present petition filed under Articles 226 and 227 of Constitution of India and under Page 1 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), petitioner has prayed to quash and set aside the impugned FIR being C.R.No.II-10 of 2015 registered with Dahej Police Station, District: Bharuch for the offence punishable under Sections, 13, 14(c) and 14-C of the Foreigners Act, 1946 and other proceedings arising therefrom qua him.
4. Brief facts narrated in the present petition are as under:-
4.1 The Complainant, upon an inquiry discovered fact that on dated 20/11/2014, total 29 Chinese nationals have arrived on business visa at Indo Baijin Chemicals Pvt.
Ltd. Company. The visas were "NOT VALID FOR WORK/EMPLOYMENT". Chinese nationals were found working in the said company on shiftvise basis. Earlier, for violation of visa rules, the Police Inspector had given a notice dated 21/08/2014 in person to the H.R. Head of Page 2 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined Company, Shri Sandeep Kumar Prabhu stating that 29 Chinese nationals should not leave Bharuch District without prior permission. As, Chinese nationals were found working on shiftvise basis in the said company, a letter was sent to the Superintendent of Police for conducting further investigation.
4.2 Furthermore, on dated 26/12/2014, the Assistant H.R. manager, Hitesh Rajubhai Raval, in his statement stated that in the year 2014, that Chinese nationals have worked on shiftvise in company for the month of June/July/August.
4.3 The Company violated the visa rules by giving chinese national employment and making them work in company on shiftvise in spite of knowing the fact that said 29 Chinese nationals were on business visa. Chinese nationals without prior permission of investigating officer left India and therefore the company and its officers has violated the provisions of Section 13 of The Foreigners Page 3 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined Act, 1946 and committed an offense punishable u/s 14(c) and 14C of The Foreigners Act, 1946. Hence, complaint/FIR came to be registered.
5. Learned advocate for the petitioner submitted that, in violation of visa norms, notice from Special Operation Group, Bharuch, was received, inter alia, alleging that 29 Chinese Nationals traveled to India on business Visas, and were found engaged in shift-wise jobs at Indo Baijin Chemicals Private Ltd. On 22.08.2014, petitioner submitted a detailed written explanation.
5.1 It is submitted that the Chinese Nationals were providing technical guidance to the employees of the Company. The petitioner also submitted an Undertaking that, he would not allow the Chinese Nationals to leave Bharuch. The company complied with such undertaking till the date of expiry of their visas. On 05.09.2014, Company requested the Secretary, Ministry of Home, Government of Page 4 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined Gujarat, to direct the LIB, Bharuch, to allow the Chinese Nationals to continue their training till October end, and to permit those Chinese Nationals who have completed their part of training to leave India before end of October.
The company did not receive any reply to the said letter.
5.2 Vide letter dated 01.11.2014, Company informed District Collector, Bharuch, that out of 29 Chinese Nationals, 24 Chinese Nationals, had already returned to China, and remaining Chinese Nationals, would leave India during the month of November, 2014. It was also informed that, 12 Chinese Nationals would be required stay in India to assist the Company with Technology Transfer and Training of plant employees from safety point of view.
5.3 It is further submitted that the Police Inspector, Special Operation Group, Bharuch, was informed vide letter dated 24.12.2014 that out of 29 Chinese Nationals, visa of 20 were expiring and they had to return back to China on expiring of their business visa.
Page 5 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined It is submitted that the Contract of Technology (Technical Know-How) Transfer Agreement, was executed between Shanghai Baijin Chemical Group Company and Indofil Industries Limited for transfer of full set of technology of producing CS2 by using natural gas and sulfur as raw materials through non-catalystic process method. According to the agreement, Shanghai Baijin Chemical Group Company had a right to send one or more of its representatives to India to visit the licensee's factory and ensure the proper use of the technology. A technical service contract was executed between the aforesaid two companies to ensure the efficient implementation of the technical Know-How. The copy of the Technology Transfer Agreement, and the articles, are produced at page No.42 of the compilation. It is further submitted that as the process of handing over and testing of machinery was going on, for supervision and guidance of Chinese Nationals were required. For teaching the employees of Page 6 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined Company, these Chinese Nationals were coming in shiftwise.
5.4 Learned advocate for the petitioner further submitted that the petitioner has not committed any offence during the period from 15.06.2014 to 25.09.2014.
It is submitted that the plant was not in a working condition due to technical reason during the period from 15.06.2014 to 22.08.2014. The impugned FIR is for the alleged offence during the period from 15.06.2014 to 25.09.2014, yet it was registered on 05.05.2015 without any explanation for delay.
5.5 Learned advocate for the petitioner has placed reliance upon Section 14(c) and 14C of the Foreigners Act, 1946. He has also placed reliance upon the decision of Viral Jayantilal Parikh & Ors. Vs. State of Gjuarat & Anr passed by Co-ordinate Bench of this Court in Special Criminal Application No.9900 of 2018 on 05.05.2017 and Page 7 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined Ravichandra Rabindrakumar Sinha Vs. State of Gujarat in Criminal Misc. Application No.4808 of 2018 on 13.03.2018.
5.6 Learned advocate for the petitioner further submitted that the similar issue was cropped up before the Co-ordinate Bench of this Court. The Co-ordinate Bench while interpreting Sections 14(c) and 14C of the Foreigners Act, held that if a foreigner has come to India on an E-
Tourist Visa, it is permissible for him to convene a business meeting. It is submitted that in view of the above observations, in the present case, when the Chinese Nationals visited India pursuant to the Technical (Know-
How) Agreement, and more particularly, to inspect and train one or more employees of the Company, and further to verify that the said Know-How is being properly utilized, it cannot be said that the petitioner is involved in the commission of offence as alleged in the FIR. Moreover, it cannot be said that the Chinese Nationals have violated Page 8 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined Visa norms.
6. Per contra, learned APP has submitted that the applicant is involved in the commission of offence. The impugned FIR may not quashed at this stage as the allegations made in the FIR are sufficient to rope the applicant for the charges.
7. I have considered the submissions canvassed by the learned advocates for the parties together with the materials placed on record for consideration. The complainant's allegation is that, petitioner engaged Chinese Nationals to work in the factory of petitioner on a shift-
wise basis, whereby committed a breach of Visas norms. It is also alleged in the FIR that the Chinese Nationals were having business Visa, and therefore, there was a restriction in the Visa (not valid for work/employment), there is no material found on record to substantiate the allegations of the complainant that Chinese Nationals were working or in Page 9 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined the employment of petitioner. In the reply dated 22.08.2014, it is averred that a Contract was executed between Shanghai Baijin Chemical Group Company and Indofil Industries Limited for the transfer of technology, and as per the Agreement, Shanghai Baijin Chemical Group Company was required to send their representatives to supervise and check that the Know-How was being utilized properly. Complainant has alleged that accused have violated provision of Section 13 of The Foreigners Act and thereby committed offence punishable under Section 14(c) and 14C of The Foreigners Act, 1946.
8. The issue, which is under consideration, is no more res integra in the case of Viral Jayantilal Parikh (supra), wherein the Co-ordinate Bench has observed in paras 13, 14, 15 & 16 as under:-
"13. Section 14(b)(c) of the Act, 1946 reads as under;
"(b) does any act in violation of the Page 10 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined 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.Page 11 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025
NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined Explanation- For the purposes of this section-
(i) an act or offence is said to be committed in 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:Page 12 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025
NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined "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 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 Page 13 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined 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 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 Page 14 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined 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 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;Page 15 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025
NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined
(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 assistance as may be necessary or prescribed for giving effect to this Act;
Page 16 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined
(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 Page 17 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined convened by the Government of India or International Bodies.
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 Page 18 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined 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 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 Page 19 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined 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 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 Page 20 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined 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 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 Page 21 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined 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.
9. In the decision of Ravichandra (supra), the Coordinate Bench has also considered the decision of Viral Jayantilal Parikh (supra), in my opinion, both the decisions squarely apply to the issue raised in the present petition.
10. Reference is required to be made in case of Page 22 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, the Apex Court has set out the categories of cases in which the inherent power under Section 482 CrPC can be exercised and held in para 102 as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Art. 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised :
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is Page 23 of 24 Uploaded by MANOJ KUMAR(HC01092) on Tue Dec 31 2024 Downloaded on : Fri Jan 03 21:58:25 IST 2025 NEUTRAL CITATION R/SCR.A/3456/2015 ORDER DATED: 13/12/2024 undefined instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
11. For the foregoing reasons and observations, the present petition deserves to be allowed and the same is allowed. The impugned FIR being C.R.No.II-10 of 2015 registered with Dahej Police Station, District: Bharuch, as well as, all consequential proceedings initiated in pursuance thereof, are hereby quashed and set aside qua the petitioner herein. Rule is made absolute.
Direct service is permitted.
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