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2002 DIGILAW 676 (CAL)

Rev. John Robert Thnaytes v. State of West Bengal

2002-10-09

Debiprasad Sengupta

body2002
JUDGMENT Debiprasad Sengupta, J. The present revisional application has been directed against the judgement and order dated 15.10.2001 passed by the learned Additional Sessions Judge, Jalpaiguri in Criminal Appeal No. 11/2001 thereby affirming the judgment and order of conviction passed by the learned Judicial Magistrate, 1st Court, Jalpaiguri in T.R. No. 716/2001 (G.R. Case No. 248/2001) convicting the accused petitioner under section 14 of the Foreigners Act, but reducing the sentence from simple imprisonment of 5 months and to pay a fine of Rs. 1000/- in default to further simple imprisonment for 3 months. 2. The prosecution case in short is that the present accused petitioner came to India on 15th September, 1954 having a British Passport and under a valid Visa he remained in India. Since then he stayed in India under valid passport and visa which was renewed time to time which continued till July, 1995. After that he stayed in India under British Passport dated 21.3.95 and a visa dated 30.5.95 which was valid till 21.7.2000. But after the expiry of the said visa he did not leave India inspite of the order/direction of the Govt. of India and Govt. of West Bengal. Further prosecution case was that as per direction of the Government a notice was issued by the Superintendent of Police, Jalpaiguri to the accused/petitioner to leave India within a period of 15 days from the date of receipt of the said notice, which was duly received by the accused on 17.1.2001. Since the accused petitioner failed to comply with the direction of the said Govt. Order, Mal P.S. Case No. 29/2001 dated 27.2.2001 was registered under section 14 of the Foreigners Act. 3. The accused petitioner was arrested and was placed on trial before the learned Judicial Magistrate, 1st Court, Jalpaiguri. After the accused petitioner was convicted and sentenced under section 14 of the Foreigners Act by the learned Magistrate, an appeal was preferred before the learned Sessions Judge, and by the impugned judgment and order dated 15.10.2001 the learned Additional Sessions Judge, Jalpaiguri dismissed the appeal, affirmed the order of conviction but reduced the sentence from S.I. for 9 months to S.I. for 5 months as aforesaid. 4. 4. The first point raised by the learned Advocate of the petitioner is that the notice which was served upon the accused petitioner can never be said to be a Government Order as per provision of section 3(2)(c) of the Foreigners Act. It is argued that the said order was issued by the Superintendent of Police, Jalpaiguri who had no authority to issue such order. Since such order was not issued in accordance with the provision of section 3(2)(c) of the Foreigners Act, the entire trial which was for violation of section 14 of the Foreigners Act is vitiated and the impugned judgment and order of conviction and sentence is also liable to be set aside on this score alone. According to the learned Advocate of the petitioner the prosecution had failed to prove that the Superintendent of Police was delegated either by the Central Government or by the State Government with the power to issue Notice to quit under section 3(2)(c) of the Act. In view of Article 166 (1) of the Constitution of India an order of the Government can be said to be a valid order if it is expressed in the name of the Governor. But the notice which was served upon the accused/petitioner did not indicate that the notice was issued by order of the Governor. 5. Mr. Bose, learned Advocate of the petitioner relies upon a judgment of Madhya Pradesh High Court reported in AIR 1959 Madhya Pradesh 387 (State of M.P. vs. Mumtaz Ali & Ors.). In the said judgment it was held that an order under section 3(2)(c) of the Foreigners Act can be passed only by the Central Government or by the State Government. Such power cannot be delegated to any Civil Authority constituted under the Foreigners Order, 1948. So, it was held by the Division Bench of the M.P. High Court that the Dy. S.P., who issued such order under section 3(2)(c) of the Act, was not empowered to issue such order. 6. In the next judgment relied upon by Mr. Such power cannot be delegated to any Civil Authority constituted under the Foreigners Order, 1948. So, it was held by the Division Bench of the M.P. High Court that the Dy. S.P., who issued such order under section 3(2)(c) of the Act, was not empowered to issue such order. 6. In the next judgment relied upon by Mr. Bose, reported in AIR 1959 Bombay 525 (State vs. Ibrahim Nabiji), it was held by the Division Bench that the accused/respondent could not be held otherwise guilty of the infringement of the provision of section 14 of the Foreigners Act, because there was no lawful valid order/direction issued against him under section 3(2)(c) of the Foreigners Act requiring him to leave India. The order passed by the Deputy Superintendent of Police was held to be unauthorised and failure to comply with such order cannot be penalised under section 14 of the Foreigners Act. 7. In AIR 1958 Calcutta 565 (Dawood Ali Arif & Anr. vs. Dy. Commissioner of Police & Ors.), referred to by Mr. Bose, learned Advocate of the petitioner it was held by the learned Single Judge of this court that the Deputy Commissioner of Police had no jurisdiction to act under section 3(2)(c) of the Foreigners Act and the order issued by him requiring a foreigner to leave India was not in accordance with law. 8. I have carefully gone through the judgements referred to above. In my considered view, none of the aforesaid judgments is applicable in the present case. The facts and circumstances of these cases are quite different from the present case. In the cases referred to above orders to quit India under section 3(2)(c) were issued directly either by the Supdt. of Police or Dy. Supdt. of Police or Dy. Commissioner of Police who were not empowered to pass such order. But in the present case Exhibit 2 makes it clear that such order of deportation was passed by the Central Government and pursuant to such order of the Central Govt., an order bearing Memo No. 2130-FNA/6F-26/96 dated 8.11.2000 was issued by the Joint Secretary to the Government of W.B. Exhibit 2 runs as follows :- "Form No. XXIX S.I., 1924 Government of West Bengal Home (Fn & NRIs) Department From-A.B. Thakur, Joint Secretary. To The S.P. DIE, Jalpaiguri. To The S.P. DIE, Jalpaiguri. No. 2130-FNA/6F-26/96 dated Calcutta the 8-11-2000 Subject: Leave India notice-case of John Robert Thnaytes, a British National. In continuation of this Deptt. Memo. No. 1347/1-FN dt. 4.12.98 on the subject noted above the undersigned is directed to state that the subject may be deported back immediately as instructed by the Govt. of India and confirmation regarding his date of departure may be intimated to this Deptt. at the earliest possible time. This may be treated as most urgent. Joint Secretary." 9. From a reading of the aforesaid exhibit it becomes clear that the Superintendent of Police, Jalpaiguri issued no order, but he only informed the accused about the desire of the Government. It is very much clear that the Superintendent of Police did not act as the delegated authority of the Government of India for the purpose of passing an order of deportation under section 3(2)(c) of the Foreigners Act. The Government instead of serving the order directly on the accused/petitioner merely used the medium of Superintendent of Police to get it served. 10. The second point raised by the petitioners' learned Advocate that the purported notice issued by the Joint Secretary to the Government of W.B. asking the petitioner to leave India within 15 days was challenged before this court in writ jurisdiction and such application under Article 226 of the Constitution of India was numbered as W.P. No. 3071 (W) of 2001 and this court by an order dated 16.5.2001 disposed of the writ application with an observation as follows : "In those circumstances I request the Government of India and its officers, including the respondent Nos. 1 and 6, to permit the proforma respondent No. 7 to live in India for a period of six weeks from the date of such order, which again is requested to be passed within 15 dayes from the date of service of a copy of this order upon them, upon the clear undertaking given by the proforma respondent No. 7 through Mr. Anjan Roy, an Advocate of this Court, that he shall leave India within such extended period." 11. It is submitted by Mr. Bose, learned Advocate of the petitioner that pursuant to the aforesaid direction of this court the Govt. of India has passed an order on 7.6.2001 to allow the petitioner to stay in India for a further period of 6 weeks. It is submitted by Mr. Bose, learned Advocate of the petitioner that pursuant to the aforesaid direction of this court the Govt. of India has passed an order on 7.6.2001 to allow the petitioner to stay in India for a further period of 6 weeks. In the present case, it is argued by Mr. Bose, charge against the petitioner was framed for overstaying in India inspite of receipt of notice issued by the Govt. of India asking the accused petitioner to leave India. After the order was passed by this court on the writ application as mentioned above, the said notice was rescinded and/or recalled by the Govt. of India and pursuant to the order of this court, a fresh notice was issued allowing the petitioner to stay in India for a further period of 6 weeks from the date of issuance of such notice. So, according to the learned Advocate of the petitioner, when the earlier notice, which is the basis of the prosecution in the present case, was rescinded by the Government, the continuation of the proceeding before the learned Magistrate was totally bad in law and as such the order of conviction and sentence is also liable to be set aside. 12. But I am unable to accept such argument advanced by the learned Advocate of the petitioner. A reading of the order passed by this court on the writ application, makes it clear that on the prayer of the petitioner this court only requested the Government of India and its officers to permit the present petitioner to live in India for a further period of six weeks. This court never directed the respondent authorities to recall or cancel or rescind the impugned notice and to issue a fresh notice. No such direction was ever given by this court. Subsequent notice was issued as per request made by this court and such notice was in continuation of the earlier notice. Apart from this it also appears from the order of this court that a clear undertaking was also given by the proforma respondent No. 7 through Mr. Anjan Roy, learned Advocate of this court that the petitioner would leave India within the said extended period of six weeks. 13. Apart from this it also appears from the order of this court that a clear undertaking was also given by the proforma respondent No. 7 through Mr. Anjan Roy, learned Advocate of this court that the petitioner would leave India within the said extended period of six weeks. 13. Now the point which is to be considered is whether the accused contravened any provision of the Foreigners Act or any order made thereunder or any direction given under the said Act or Order. It is clear from the evidence on record that the accused petitioner being a British National came to India with a valid passport and visa and he had been staying in India since 15.9.54 and Government of India permitted him to stay in India till 21.7.2000. Thus permission was accorded by the Govt. of India, but his visa expired on 21.7.2000. On expiry of this period a Quit India Notice was served upon him by the S.P., D.I.B., Jalpaiguri and it is also evident that such notice was served as per instruction of the Govt. of India asking the petitioner to leave India within a period of 15 days from the date of receipt of such notice. Since the accused failed to comply with the direction given in the said notice, prosecution was initiated against him. 14. Mr. Safiullah, learned Public Prosecutor submits that in the present case the accused/ petitioner is admittedly a foreigner and it also cannot be disputed that he overstayed in India without any valid authority. The learned P.P. further submits that by overstaying beyond the period permissible under the visa the accused petitioner committed the offence and became liable for prosecution. In support of his contention Mr. Safiullah relies on a judgement of the Hon'ble Supreme Court reported in AIR 1972 SC 2166 (The State of Assam vs. Jilkadar Ali). In the said judgement in paragraphs 10 and 12 it was held as follows:- "Dr. Mahmood, however, relied on the Registration of Foreigners (Exemption) Order, 1957. But whether the respondent was exempted under that order or not is entirely irrelevant for the purposes of clause 7 of the Foreigners Order, 1948, whose purpose clearly is to see that a foreigner entering India under a visa does not overstay beyond the period for which the visa permits him to stay in this Country. But whether the respondent was exempted under that order or not is entirely irrelevant for the purposes of clause 7 of the Foreigners Order, 1948, whose purpose clearly is to see that a foreigner entering India under a visa does not overstay beyond the period for which the visa permits him to stay in this Country. By overstaying here without the required extension the respondent clearly violated the provision of clauses 7 (1) and (3) of the Foreigners' Order, 1948 in view of our conclusion that he was a person who was deemed not to be a citizen of this country, and therefore, a foreigner even under the definition of foreigner in section 2 of the Foreigners Act before it was amended in 1957." "In our view the respondent was a foreigner when he entered India in April 1955 as the definition of foreigner then stood, and by overstaying beyond the period permissible under the visa on the strength of which he had entered India he clearly committed breach of clause 7 of the Foreigners' Order, 1946 and was liable to be punished under section 14 of the Foreigners Act, 1946. He was, therefore, rightly convicted and sentenced by the Trial Magistrate. The High Court, in our view, erred in setting aside that order of conviction and sentence. The appeal by the State is, therefore, allowed and the order of the Trial Court is restored. Appeal allowed". 15. It is further submitted by Mr. Safiullah that the learned Magistrate after considering the entire evidence on record as also the exhibits, passed the judgment and order of conviction and sentence. The learned Additional Sessions Judge also considered the entire evidence on record and dealt with all the points raised by the petitioner in the appeal. When there is a concurrent finding of both the courts below, the present revisional application having no merit, is liable to be dismissed. 16. I have heard the learned Advocates of the respective parties. I have also gone through the judgements referred to by both the parties. As per provision of section 9 of the Foreigners Act the onus is upon the accused to prove that he is not a foreigner. After considering the entire evidence on record, both oral and documentary I am of the view that the accused is a British National and a foreigner beyond all reasonable doubt. As per provision of section 9 of the Foreigners Act the onus is upon the accused to prove that he is not a foreigner. After considering the entire evidence on record, both oral and documentary I am of the view that the accused is a British National and a foreigner beyond all reasonable doubt. The accused being a foreigner and having stayed in India without any valid and legal authority and having failed to leave India as per direction given in the notice under section 3(2)(c) of the Foreigners Act, was rightly convicted under section 14 of the Foreigners Act by learned Judicial Magistrate, 1st Court, Jalpaiguri. The appeal preferred by petitioner was dismissed by the learned Additional Sessions Judge, Jalpaiguri, which in my view does not warrant any interference by this court. The learned Judge upheld the order of conviction and sentence passed by the learned Magistrate after considering the entire evidence on record and on proper application of mind. I do not find any reason to interfere with the same. 17. The revisional application accordingly fails and the same is dismissed. The judgement and order passed by the learned Additional Sessions Judge, Jalpaiguri in Criminal Appeal No. 11 of 2001 is hereby affirmed. 18. The lower court records along with the copy of this judgement may be sent down to the court below immediately. Revisional application dismissed.