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2005 DIGILAW 45 (MAD)

Zhovtan Dmytro & Others v. Government of India

2005-01-17

K.P.SIVASUBRAMANIAM

body2005
Judgment :- These three writ petitions have been filed by the respective petitioners for a certiorari to call for the records of the respondent/Chief Immigration Officer dated 30.12.2004 and to quash the same. It is sufficient to extract the statement of facts in W.P.No.983 of 2005 in view of the fact that all the three writ petitions proceed on the same background of facts. 2. The petitioner claims to be a Ukrainian National and he is staying in Auroville, Pondicherry since 1992. According to him, his stay in India is lawful with the permission of the concerned authorities duly obtained from time to time. He was peacefully living at the above address and he was engaged in the activities of the Auroville Foundation. 3. A criminal complaint came to be filed against him and three others by the Station House Officer, Kalapet Police Station, Pondicherry for the alleged offences under Sections 294, 354, 323 and 506 Part II read with Section 34 I.P.C. The said complaint was given by one Thathagater Satpathy and his wife Adyasha Satpathy alleging that on 1.1.2002, when they came to the New Year Get-Together in the premises, the petitioner along with three other persons used abusive language against them, assaulted them and also threatened them with dire consequences. They are also alleged to have caused simple injuries. The said complaint was registered by the Station House Officer as Crime No.2 of 2002. A charge sheet was filed before the learned Judicial Magistrate No.II, Pondicherry as C.C.No.129 of 2002. 4. The proceedings were defended and the learned Magistrate, by his judgment dated 10.12.2004, found the petitioner and others guilty of the offences and they were sentenced to undergo simple imprisonment till the rising of the Court on each count and to pay a fine of Rs.750/- or in default to undergo simple imprisonment for a period of three months. The said fine amount was remitted without prejudice to the rights of the petitioner and the others. 5. The petitioners contend that they have not committed any offence and they have preferred appeals before the learned Principal District Sessions Judge, Pondicherry in C.A.No.3 of 2004 and the matter was posted for hearing on 28.1.2005. The petitioners contend that they have got fair chances of success in the appeals. 5. The petitioners contend that they have not committed any offence and they have preferred appeals before the learned Principal District Sessions Judge, Pondicherry in C.A.No.3 of 2004 and the matter was posted for hearing on 28.1.2005. The petitioners contend that they have got fair chances of success in the appeals. While so, the petitioners have received the impugned notice under clause (c) of Sub-section 2 of Section 3 of The Foreigners Act, 1946, directing the petitioners to leave India within 15 days after the receipt of the order. The said order was received by the petitioners on 3.1.2005 and the petitioners also approached the respondent to ascertain the reason why they have been directed to leave India. They have been informed that the authorities had information of conviction of the petitioners in C.C.No.129 of 2002 on the file of Judicial Magistrate No.II, Pondicherry. Hence the above writ petitions. 6. Mr.AR.L.Sundaresan, learned counsel appearing for the petitioners contends that when once the petitioners are convicted for an offence under the Indian Penal Code, they have got a right of appeal before the appropriate appellate Court, which they have availed by filing an appeal. Therefore, in order to wipe out the stigma against themselves, it has become necessary for the petitioners to remain in India and to pursue the appeal. No prior notice was issued before the impugned order was passed. However, when they have enquired the respondent, they were positively informed that the impugned order has been passed only as a result of the conviction by the criminal Court. Therefore, though the Supreme Court has held that the foreigners have no fundamental rights, in the peculiar facts and circumstances of the present case, the petitioners are required to pursue the appeal filed by them. It is also stated that their visa is valid as on date and hence their stay in India is valid. 7. Mr.V.T.Gopalan, learned Additional Solicitor General, appearing for the Union Government contends that the orders have been issued under the provisions of the Foreigners Act and there is no requirement to issue any prior notice or to provide any opportunity to show cause against the proposed order. The executive has full powers to use their discretion and, if in their opinion, the petitioners' presence is found to be objectionable, the action of the executive in directing their departation cannot be called as illegal. The executive has full powers to use their discretion and, if in their opinion, the petitioners' presence is found to be objectionable, the action of the executive in directing their departation cannot be called as illegal. Though the impugned order does not disclose the reasons, learned Additional Solicitor Geenral was fair enough to state that the reason for serving the 'Leave India Notice' was due to the fact that they had come to adverse notice as a result of their own conduct resulting in registration of a case in Crime No.2 of 2002 and the ultimate punishment which was awarded against them. 8. Learned Additional Solicitor General also relies on the judgment of this Court in "GILLES PREIFFER -vs- THE UNION OF INDIA AND OTHERS" reported in 1996 W.L.R.386, in support of his contention that the foreign nationals have no right to claim to continue to stay in India when the conduct of any foreigner comes to the adverse notice of the Government. 9. Reference is also made to the judgment of the Supreme Court in "HANS MULLER OF NURENBURG -Vs- SUPERINTENDENT, PRESIDENCY JAIL, CALCUTTA AND OTHERS" reported in A.I.R.1955 S.C.367. Learned Additional Solicitor General also states that the judgment of the learned single Judge of this Court referred supra was also subsequently confirmed by the Supreme Court. 10. In reply, Mr.AR.L.Sundaresan contends that the facts of the case reported in 1996 W.L.R.386 will not apply to the facts of the present case. That was a case in which the accused was found to be indulging in activities adverse to the security of the country, whereas in the present case, the petitioners have been charged with criminal offence and pursuant to their conviction they have also preferred an appeal. Therefore, the rights of the individuals to pursue the appellate remedy cannot be barred by directing them to leave the country. 11. I have considered the submissions of both sides. A perusal of the provisions of the Foreigners Act discloses that no reasons are required to be stated while directing deportation of the foreign citizens. Section 3 of the Foreigners Act, 1946 reads as follows. "3. 11. I have considered the submissions of both sides. A perusal of the provisions of the Foreigners Act discloses that no reasons are required to be stated while directing deportation of the foreign citizens. Section 3 of the Foreigners Act, 1946 reads as follows. "3. Power to make orders: (1) The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India, or their departure therefrom or their presence or continued presence therein. (2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner- (a) shall not enter India, or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed. (b) Shall not depart from India, or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed; (c) shall not remain in India, or in any prescribed area therein; (cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal. (d) Shall remove himself to, and remain in, such area in India as may be prescribed; (e) shall comply with such conditions as may be prescribed or specified- i.requiring him to reside in a particular place; ii.imposing any restrictions on his movements; iii.requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed and specified; iv.requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified; v.requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified; vi.prohibiting him from association with persons of a prescribed or specified description; vii.prohibiting him from engaging in activities of a prescribed or specified description; viii.prohibiting him from using or possessing prescribed or specified articles; ix.otherwise regulating his conduct in any such particular as may be prescribed or specified; x.otherwise regulating his conduct in any such particular as may be prescribed or specified. (f)Shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions; (g)shall be arrested and detained or confined. and may make provision for anymatter which is to be or may be prescribed for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act. (3) Any authority prescribed in this behalf may with respect to any particular foreigner make orders under clause (e) or clause (f) of sub-section (2)." 12. While interpreting the said provisions, the Supreme Court in A.I.R.1955 S.C.367 cited above, has in clear terms, stated that the Foreigners Act vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains with the Government. 13. While interpreting the said provisions, the Supreme Court in A.I.R.1955 S.C.367 cited above, has in clear terms, stated that the Foreigners Act vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains with the Government. 13. SHIVRAJ PATIL, J. as he then was, in GILLES PREIFFER -vs- THE UNION OF INDIA AND OTHERS" reported in 1996 W.L.R.386, has dealt with the said issue in a very detailed manner and after considering the various judgments of the Supreme Court had ultimately held that the claim of rights by the petitioner cannot be sustained. 14. It is no doubt true that the learned counsel for the petitioner seeks to distinguish the facts of the said case with the present case and contends that the petitioners in this case have got a fundamental right to pursue the appellate remedy. I am unable to accept the said contention. The fact remains that it is open to the petitioners to pursue the appeal before the appellate Court through their counsel and their personal appearance is not required. The petitioners have come to the adverse notice of misbehaviour and had been prosecuted under Sections 294, 354, 323 and 506 Part II read with Section 34 I.P.C., which are serious offences. The offences for which the petitioners stand charged cannot be said to be minor charges which can be easily ignored. 15. Therefore, I do not find any ground to intefere with the order passed by the respondent. It is, however, made clear that the observations made in this order shall not prejudice the case of the petitioners in their appeals before the appellate Court and the appellate Court is directed to deal with the merits of the appeals without being influenced by any of the observations made in this order. 16. Learned counsel for the petitioners prays that this order may be suspended so as to enable the petitioners to file an appeal. The learned counsel relies on the very judgment of the learned single Judge in GILLES PREIFFER -vs- THE UNION OF INDIA AND OTHERS" reported in 1996 W.L.R.386. Though I am not inclined to suspend this order, the respondent is directed not to enforce the order for a period of two weeks from today. 17. With the above observations, the writ petitions are disposed of. Though I am not inclined to suspend this order, the respondent is directed not to enforce the order for a period of two weeks from today. 17. With the above observations, the writ petitions are disposed of. Consequently, connected W.P.M.P.Nos.1113 to 1115 of 2005 are closed. No costs.