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2010 DIGILAW 687 (ORI)

Sanu Das v. State of Orissa

2010-10-01

B.K.NAYAK

body2010
JUDGMENT B.K. NAYAK, J. — This petition under Section 482, Cr.P.C. has been filed by the petitioners for quashing the F.I.R. dated 01.04.2010 (Annexure-1) registered against them in Badmal P.S. Case No.59 of 2010 for alleged commission of offence under Section 14 of the Foreigners Act, 1946. 2.The allegations in the F.I.R. (Annexure-1), which has been drawn up by the Inspector-in-Charge of Badmal Police Station, are to the following effect : Petitioner No.1-Sanu Das, is working as Head of Administration and Estate and petitioner No.2-Major Biswajit Das is working as Manager, Administration, Vedanta Aluminium Ltd., Bhurkamunda, Jharsuguda. They are in-charge of looking after the Vedanta Guest House situated inside the Vedanta Aluminium Plant. Some Foreigners of different countries have been staying in the Vedanta Guest House permanently as well as temporarily and on receipt such information, the informant proceeded to the Guest House along with some of his subordinates and asked the receptionist of the Guest House, namely, Amit Ku. Nayak to produce the register of the Guest House with regard to arrival and departure of the foreigners in the Guest House which the petitioners were required to maintain in Form-F and also required to send reports and intimation about the same to the District Registration Authorities as well as the concerned police station under Form-C in accordance with Sub-section (14) of Section 7 of the Registration of Foreigners Rules, 1992. But the Receptionist stated that as per direction of petitioner No.1, they were not maintaining any register and merely feeding the names and parentage, etc. of the visitors and guests coming to the Guest House in the computer directly for the purpose of their reference and record. It is, therefore, alleged in the F.I.R. that for violation of the aforesaid Rule of the Registration of Foreigners Rule 1992 the petitioners are punishable under Section 14 of the Foreigners Act, 1946. 3.It is stated in the petition and submitted by Mr. It is, therefore, alleged in the F.I.R. that for violation of the aforesaid Rule of the Registration of Foreigners Rule 1992 the petitioners are punishable under Section 14 of the Foreigners Act, 1946. 3.It is stated in the petition and submitted by Mr. Sanjit Mohanty, the learned Senior Counsel appearing for the petitioners that there is nothing like Sub-section (14) of Section 7 in the Registration of Foreigners Rules, 1992 (hereinafter referred to as ‘the 1992 Rules’) and probably the informant makes a reference to Sub-rule (7) of Rule 14 of the Rules and that even assuming that the informant meant the same, violation of Rule 14 does not attract the penal provision of Section 14 of the Foreigners Act, 1946 inasmuch as the 1992 Rules are not applicable to the Foreigners Act, 1946. It is the further submission of the learned counsel that the violation of Rule-14 or any other rule of the 1992 Rules by a keeper of a hotel or a Guest House is punishable under Section 5 of the Registration of Foreigners Act, 1939 only with a fine which may extend to Rs.500/-, in respect of which no F.I.R. could be lodged. It is, therefore, his submission that allegation of commission of offence by the petitioners under Section 14 of the Foreigners Act, 1946 is wholly misconceived and as such the F.I.R. is liable to be quashed. Learned Additional Government Advocate, on the other hand, contends that violation of 1992 Rules can be made punishable under Section 14 of the Foreigners Act, 1946. 4.With reference to the rival contentions of the learned counsel for the parties, it is first of all necessary to see as to what constitutes the offence under Section 14 of the Foreigners Act, 1946. There is no dispute that both the Foreigners Act, 1946 (in short ‘the 1946 Act’) and the Registration of Foreigners Act, 1939 (in short ‘the 1939 Act’) are continuing in force. Section 14 of the Foreigners Act, 1946 reads as under : “14. There is no dispute that both the Foreigners Act, 1946 (in short ‘the 1946 Act’) and the Registration of Foreigners Act, 1939 (in short ‘the 1939 Act’) are continuing in force. Section 14 of the Foreigners Act, 1946 reads as under : “14. Penalties- If any person contravenes the provisions of this Act or of any order made thereunder, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if such person 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.” It is clear that for contravention of any of the provisions of the 1946 Act or of any Order made thereunder, or any direction given in pursuance of that Act or such order is punishable under the Act. 5.Keeping in view of the allegations in the F.I.R. as per Annexure-1, the only other relevant provision in the 1946 act is Section 7 thereof which reads thus : “7. Obligation of hotel keepers and others to furnish particulars.-(1) It shall be the duty of the keeper of any premises whether furnished or unfurnished where lodging or sleeping accommodation is provided for reward, to submit to such person and in such manner such information in respect of foreigners accommodated in such premises, as may be prescribed. Explanation - The information referred to in this Sub-section may relate to all or any of the foreigners accommodated at such premises and may be required to be submitted periodically or at any specific time or occasion. (2) Every person accommodated in any such premises shall furnish to the keeper thereof a statement containing such particulars as may be required by the keeper for the purpose of furnishing the information referred to in Sub-section (1). (2) Every person accommodated in any such premises shall furnish to the keeper thereof a statement containing such particulars as may be required by the keeper for the purpose of furnishing the information referred to in Sub-section (1). (3) The keeper of every such premises shall maintain a record of the information furnished by him under Sub-section (1) and of the information obtained by him under Sub-section (2) and such record shall be maintained in such manner and preserved for such period as may be prescribed, and shall at all time be open to inspection by any police officer or by a person authorised in this behalf by the District Magistrate. (4) If in any area prescribed in this behalf the prescribed authority by notice published in such manner as may in the opinion of the authority be best adapted for informing the persons concerned so directs, it shall be the duty of every person occupying or having under his control any residential premises to submit to such person and in such manner such information in respect of foreigners accommodated in such premise as may be specified; and the provisions of Sub-section (2) shall apply to every person accommodated in any such premises.” It is clear from Section 7 that the keeper of a premises where foreigners were accommodated is to submit information in the manner as prescribed. (emphasis supplied). 6.The word ‘prescribed’ has been defined in Clause-(b) of Section 2 of the 1946 Act to mean that prescribed by orders made under the Act. Under Section 3 of the 1946 Act power has been conferred on the Central Government to issue order providing for prohibiting, regulating or restricting the entry of foreigners into India, or their departure therefrom or their presence or continued presence therein. In exercise of such power the Central Government has made the Foreigners Order, 1948. On going through the said Order, it is found that nowhere any provision has been made therein prescribing the manner in which the keeper of a premises meant for accommodation for reward shall furnish any information to any person or authority in respect of any foreigners accommodated in such premises. 7.From the above discussions, it is clear that the petitioners have not made any violation of Section 7 or any other provision of the 1946 Act or any order made thereunder. 7.From the above discussions, it is clear that the petitioners have not made any violation of Section 7 or any other provision of the 1946 Act or any order made thereunder. 8.The 1992 Rules have been framed by the Central Government in exercise of power conferred under Section 3 of the 1939 Act. Clause (a) of Rule 2 of the 1992 Rules defines ‘Act’ to mean the 1939 Act. The Rules do not make any reference to the 1946 Act. There is no provision in the 1946 Act, nor the learned State Counsel has brought to the notice of the Court any provision of law with regard to applicability of the 1992 Rules to the 1946 Act. In such view of the matter, the alleged violation of Rule 14 of the 1992 Rules, which has been wrongly described in the F.I.R. under Annexure-1 as violation of Sub-section (14) of Section 7 of the said Rules, cannot be made punishable under Section 14 of 1946 Act. Therefore, F.I.R. dated 01.04.2010 registered in Badmal P.S. Case No.59 of 2010 is wholly misconceived and liable to be quashed and accordingly I quash the same. Since violation of any provision of the 1992 Rules by a keeper of a hotel or a Guest House is punishable only with a fine which may extend to Rs. 500/- under Section 5 of the 1939 Act, which would be a non-cognizable offence in accordance with part-II of the First Schedule of the Code of Criminal Procedure, 1973, it is open to the authorities to proceed in the manner permissible under law for any alleged violation of the said Rules, if so advised. The CRLMC is accordingly disposed of. CRLMC disposed of.