IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.1502/2018 C/W WRIT PETITION NO.45926/2018(GM-RES) IN CRL.P. NO.1502/2018:
BETWEEN:
HOSSIE BIKANDOU SIDNEY S/O AGNANGOYE AGED ABOUT 30 YEARS R/AT: NO.J R ARCADE APARTMENT, CHELIKERE BANGAORE -5600043.
(BY SRI. TRIVIKRAM S., ADVOCATE) AND:
STATE OF KARNATAKA BY HENNUR POLICE REP BY STAE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE – 560 001.
(BY SRI. S. RACHAIAH., HCGP) ... PETITIONER ... RESPONDENT THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.22691/2017, FILED BY THE RESPONDENT HENNUR POLICE AGAINST THE PETITIONER HEREIN FOR THE OFFENCE P/U/S 14 AND 14-C OF THE FOREIGNERS ACT, PENDING ON THE FILE OF THE LEARNED I MMTC, AT MAYO HALL, BANGALORE.
IN W.P. NO.45926/2018: BETWEEN:
HOSSIE BIKANDOU SIDNEY S/O AGNANGOYE R/AT: NO. J.R. ARCADE APARTMENT, CHELIKERE BANGALORE – 560 043.
(BY SRI. TRIVIKRAM S, ADVOCATE) AND:
1. STATE OF KARNATAKA BY HENNUR POLICE REP. BY S.P.P. BANGALORE – 560 001.
2. UNION OF INDIA REP. BY ITS SECRETARY MINISTRY OF EXTERNAL AFFAIRS, JAWAHARLAL NEHRU BHAWAN, JANPATH NEW DELHI – 110 011.
3. FOREIGNERS REGIONAL REGISTRATION OFFICE BUREAU OF IMMIGRATION (NHA) GOVERNMENT OF INDIA 5TH FLOOR, ‘A’ BLOCK TTMC, BMTC BUILDING ... PETITIONER K.H. ROAD, BANGALORE – 560 027.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP FOR R-1;
SRI. ADITYA SINGH., CGC FOR R-2 AND R-3) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE LEARNED I MMTC, MAYO HALL, AT BENGALURU TO IMPOSE SUITABLE FINE IN LIEU OF THE SENTENCE FOR THE OFFENCE PUNISHABLE U/S 14 AND 14(C) OF THE FOREIGNERS ACT, IN CC NO.22691/2017.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R These two petitions are taken up together for final disposal by the consent of learned Advocates appearing for parties though they are listed for ‘Preliminary Hearing’.
2. Petitioner is a citizen of Republic of Congo and had arrived at the soil of Indian Territory on a passport valid from 29.11.2011 to 28.11.2016 (Annexure-A). He possessed a student visa issued by Republic of India valid upto 13.08.2013 (Annexure-B). Subsequently, said visa came to be extended upto 13.08.2014 (Annexure-C). However, visa was not renewed after which jurisdictional police namely, Hennur Police Station registered the case against petitioner and four others for the offences punishable under Section 14 and 14(C) of Foreigners Act, 1946 vide Annexure-E. Petitioner was apprehended and sent to judicial custody and later enlarged on bail. After completion of investigation charge sheet came to be filed for the aforesaid offences (Annexures-E and F). During the course of investigation passport bearing No.A0413589 of the petitioner was seized in PR No.6/2017. Matter has been pending for trial in C.C.No.22691/2017 and on account of other accused having not appeared before the Court, matter is being adjourned from time to time.
3. Hence, in W.P.No.45926/2018 petitioner has sought for a writ of mandamus being issued to jurisdictional Magistrate to impose suitable fine in lieu of sentence for the offences punishable under Sections 14 and 14(C) of Foreigners Act, 1946 in C.C.No.22691/2017. In the connected Crl.P.No.1502/2018 petitioner has prayed for quashing of said proceedings contending that inordinate delay in proceedings being conducted has resulted in his right being infringed and though petitioner is intending to go back to his native country-Congo, on account of pendency of the proceedings he is unable to return back to his country and non commencement of trial is in violation of Article 21 of Constitution of India.
4. In these aforestated circumstances, this Court had directed learned Advocates appearing for respondent-State as to whether Foreign Regional Registration Office (FRRO) is ready and willing to issue exit permit and in reply it was submitted that same would be feasible only in the event of other formalities being completed and hence, petitioner was given opportunity to move appropriate authorities.
5. A memo came to be filed on 25.04.2019 by the learned counsel appearing for petitioner enclosing travel permit issued by the Embassy of Republic of Congo at New Delhi, India, valid for a period from 24.04.2019 to 24.05.2019. Petitioner also applied for grant of exit permit in the Office of FRRO and same having been processed, has resulted in exit permit having been issued today by levying fee/fine for overstay and visa in a sum of `28,000/- which is also deposited by petitioner.
6. Learned counsel appearing for petitioner has also filed a memo enclosing air ticket, which discloses petitioner is travelling on 07.05.2019 via Mumbai by Ethiopian Airlines. In the aforestated circumstances, if petitioner is allowed to stay in the territory of India or if allowed to stay in this country it would virtually amount to legalizing his overstay. Hence, it would not serve any purpose and aforestated facts would also disclose that petitioner is ready and willing to exit from India and documents produced by him would substantiate claim made by petitioner in this regard.
7. In the light of aforestated facts, this Court is of the considered view that continuation of further proceedings in C.C.No.22691/2017 registered by Hennur Police Station against petitioner for the offences punishable under Section 14 and 14(C) of Foreigners Act, 1946, would not serve any purpose and in fact it would be against the tenor of Section 14 of the Act namely, permitting a person without residential visa to continue his over stay in the territory of India thereby legalizing his stay in the territory of India. This Court cannot lose sight of the fact that FRRO having considered the application of petitioner for grant of exit permit, has granted exit permit by imposing fine in a sum of `28,000/-, which is also remitted by petitioner. This fact is also not disputed by learned Central Government Counsel 8. In that view of the matter, if proceedings pending against petitioner is allowed to continue, it would not serve any purpose and it requires to be quashed by putting the petitioner on terms and it would meet the ends of justice.
Hence, I proceed to pass the following:
ORDER (i) Crl.P.No.1502/2018 and W.P.No.45926/2018 are allowed.
(ii) Proceedings pending against petitioner in C.C.No.22691/2017 registered for the offences punishable under Sections 14 and 14C of Foreigners Act, 1946, by Hennur Police Station pending on the file of I-MMTC, Mayo Hall, Bangalore, is quashed.
(iii) Petitioner is acquitted of aforesaid offences subject to petitioner filing an undertaking before Station House Officer, Hennur Police Station, to leave the territory of India on or before 07.05.2019.
(iv) It is also made clear that Immigration Authorities at Chhatrapathi Shivaji International Airport, Mumbai, shall not cause any obstruction to the petitioner to leave the territory of India, in the light of exit permit as well as travel permit issued by the jurisdictional authorities and in the light of observations made hereinabove.
Rule made absolute.
SD/- JUDGE DR