IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.9945 OF 2017 BETWEEN:
TOMIWA LAWRENCE S/O. AKINWUSI OLUFEMI JOEL AGED ABOUT 25 YEARS PERMANENT RESIDENT OF #28, TORO ROAD MODKERE, NIZERIA PRESENTLY RESIDING AT #6, 1ST CROSS, R.K. LAKE VIEW LAYOUT BOMMASANDRA, ATTIBELE HOBLI ANEKAL TALUK BENGALURU-562 106. …….PETITIONER (BY SRI:JAYARAM N. SIDDI, FOR SRI. L. SRINIVASA BABU, ADV.) AND:-
1. THE STATE OF KARNATAKA REP BY SPP HIGH COURT BUILDING BENGALURU-560 001.
2. FOREIGNERS REGIONAL REGISTRATION OFFICER 5TH FLOOR, A- BLOCK, TTMC BUS STAND K.H. ROAD, SHANTHINAGAR BENGALURU-560 007. …….RESPONDENTS (BY SRI: VIJAY KUMAR MAJAGE, ADDL. SPP FOR R1 ADITYA SINGH, ADV., FOF R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO QUASH THE CHARGE SHEET AND ALL FURTHER PROCEEDINGS AS AGAINST THE PETITIONER IN C.C.NO.97/2015 OF HEBBAGODI POLICE ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, ANEKAL.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner is seeking to quash the charge sheet and all further proceedings in C.C.No.97/2015 pending on the file of learned Addl. Civil Judge(Sr.Dn.) and CJM, Anekal, Bengaluru.
Heard learned counsel for petitioner and learned Addl. SPP for respondent No.1. Perused the records.
2. Petitioner is a Nigerian National claiming to be holding valid passport bearing No.AO3539249 with expiry date on 08.03.2017. He came to India on 21.07.2012 on a residential permit issued to him from 09.07.2012 to 08.07.2013. Since the petitioner failed to obtain an extension, the Immigration Officer- Foreigners Regional Registration Officer(FRRO), Bengaluru(respondent No.2) submitted a memorandum to respondent No.1 police, based on which, FIR was registered against the petitioner in Cr.No.168/2014 for the offences punishable under para 7(2) of The Foreigners Order, 1948 and under section 14 of The Foreigner’s Act, 1946. On completion of investigation, charge sheet is laid against the petitioner for the above offences and the learned magistrate has taken cognizance of the same.
3. The contention of the petitioner is that petitioner submitted a letter to FRRO, Bengaluru for visa renewal only after college issued a bonafide certificate dated 20.02.2014. Said request is still pending consideration with the second respondent. Even though, the petitioner has furnished details of his studies in Bachelor in Computer Applications Course at Pushpagiri College of Management and Sciences, Bengaluru, his visa was neither extended nor the duration of the academics. Being unable to obtain a bonafide certificate from the college, he has been wrongly implicated in the above case of overstay even though investigation did not disclose that the petitioner is involved in any criminal activity.
4. Having heard learned counsel for the parties and on perusal of the records, it is noticed that the petitioner herein came to India on the strength of a residential permit granted by FRRO which was valid only upto 08.07.2013 and overstayed beyond said period without obtaining extension of the residential permit. Under the said circumstances, respondent No.2 was justified in initiating action against the petitioner under section 14 of The Foreigners Act, 1946 and para 7(2) of the Foreigners Order, 1948.
5. Learned counsel for the petitioner has placed reliance on the decision of this Court in Crl.P.No.1331/2018 dated 03.04.2018 and Crl.P.No.1305/2017 dated 12.04.2017, wherein considering identical facts, this Court has permitted the petitioners therein to leave the Country on the ground that continuing the stay would only be legalizing overstay and would not serve any purpose, as the petitioner was ready and willing to exit from the Country on quashing the proceedings. Even in the present case, learned counsel appearing for the petitioner submitted that the petitioner is ready and willing to exit from the territory of India after obtaining Air ticket and would exit within a period of two weeks from the date of order passed by this Court. In the aforesaid facts and circumstances, this court is of the considered view that the continuation of further proceedings in C.C.No.97/2015 initiated by Hebbagodi police station against the petitioner for the offences punishable under section 14 of The Foreigners Act, 1946 and para 7(2) of The Foreigners Order, 1948 would not serve any purpose and permitting the petitioner without any residential permit or visa to overstay in the Territory of India would amount to legalizing stay in the territory of India.
In that view of the matter, proceedings pending against the petitioner deserve to be quashed.
Accordingly, the petition is allowed. Proceedings in C.C.No.97/2015 pending on the file of learned Addl. Civil Judge(Sr.Dn.) & CJM, Anekal, Bengaluru are quashed.
Petitioner is directed to make online application for grant of exit permit to respondent No.2 within three days from today. Respondent No.2 shall obtain necessary NOC from Foreigners Regional Registration Office in India within seven working days thereafter and also a clearance from the State Police to the effect that there is no other case pending against him.
Petitioner shall produce valid travelling documents, like confirmed travelling ticket, valid passport or emergency travelling document issued by the Nigerian Embassy within ten days from today. Petitioner shall pay the requisite payment of over stay fee. Respondent No.2 shall ensure that all the above formalities are completed within 30 days from the date of making online application.
If the online application is not submitted and valid documents are not produced by the petitioner within the time prescribed above, the petitioner shall immediately be taken into custody.
Compliance shall be reported to the Court by respondent No.2 within 30 days from today.
In view of the above order, passport shall be returned to petitioner by the Investigating Officer forthwith.
Learned Additional State Public Prosecutor shall ensure the return of the passport to petitioner to enable petitioner to comply with the above directions.
Office is directed to furnish copy of this order to learned counsel for petitioner and learned Additional State Public Prosecutor forthwith.
List this matter after 30 days.
Sd/- JUDGE *MD/mn/-