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2020 DIGILAW 131 (MP)

Abinash Dixit v. State Of Madhya Pradesh

2020-01-23

V.P.S.CHAUHAN

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JUDGMENT Vishnu Pratap Singh Chauhan, J. - The applicant has filed this petition under Section 482 of Cr.P.C. for quashing of the FIR No.149/2019 registered at Police Station Gurh, District Rewa for offence punishable under Sections 7 and 14 of Foreigners Act, 1946 as also under Section 188 of the IPC. After investigation, charge-sheet has been filed. It has also been prayed to quash all the criminal proceedings emanated from Crime No.149/2019. 2. Facts giving rise to this petition, in brief, are that the applicant-Abinash Dixit is working in Sprng Energy Private Limited (here-in-after referred as SEPL) as an Assistant Manager (Project). Madhya Pradesh Urja Vikas Nigam Limited and Solar Energy Corporation of India jointly developed Rewa Solar Plant Project, developing 3 units of ground mounted grid-connected solar photo-voltaic power plants of 250 MW capacity per unit, total capacity of 750 MW. Arinsun Clean Energy Private Limited (hereinafter referred as ACEPL) undertook the development works of Unit 3 of Rewa Solar Project. SEPL is the shareholder of ACEPL, therefore, this SEPL undertake is having responsibility of providing the manpower and other facilities of unit 3 of Rewa Solar Project. One Adarsh Kumar Singh, was working in P.S. Enterprises, the India's representative of China Bosan Robotics Limited Company. Two Chinese citizens, who are working in the Bosan Robotics Limited, came India after receiving the e-tourist visa in India. Adarsh Kumar Singh contacted the applicant-Avinash Dixit. He took both the Chinese citizens at Rewa without informing to Police properly under the Foreigners Act. Both the Chinese citizens came with Robots at the unit 3 of Rewa Solar Project and started demonstration of their product robot for cleaning solar modules at unit 3 of Rewa Solar Project. When concerned Police received the information that two foreigners are doing work at unit 3 of Rewa Solar Project without any information, Police rushed to the spot. Police found that the applicant called the foreigners there and they were demonstrating their products and started cleaning of solar modules. It is found that both the Chinese citizens were come on tourist visa. They were not having any business or employment visa for promoting their products Robots and doing the demonstration of products and the applicant not informed the concerned Police Station about foreigners in the plant. It is found that both the Chinese citizens were come on tourist visa. They were not having any business or employment visa for promoting their products Robots and doing the demonstration of products and the applicant not informed the concerned Police Station about foreigners in the plant. Thereafter, notices had been served and it was found that both the Chinese citizens were doing work in violation of conditions of visa. They had been fined by Police and they were directed to leave India immediately within a given time. 3. A report registered against the applicant for doing that unauthorized work illegally without informing the Police. A case had been registered under Section 7 and 14 of Foreigners Act, 1946 against the applicant. There was prohibitory order under force on account of election notification and also registered case under Section 188 of IPC that the applicant also doing that work in contraventions of prohibitory order. 4. Learned senior counsel for the applicant submits that the applicant is not a manager of any hotel or any accommodation. Both the foreigners came at plant just to demonstrate their product robot for cleaning the solar module. No ingredients of offence punishable under Section 7 and 14 of the Foreigners Act, 1946 are made out. He further submits that the applicant has not provided any premises to the foreigners for lodging or sleeping. Foreigners stayed in a hotel at Rewa. The concerned hotel authorities were liable to inform to the Police under Section 7 of the Foreigners Act, 1946. Adarsh Kumar Singh contacted the applicant and security personnel of Solar Power Plant allowed the foreigners inside the premises. The applicant had not violated any condition of the Foreigners Act or any condition of the prohibitory order issued during election notification. None of the ingredients of any offence found against the applicant. When no offence is made out against the applicant, FIR registered at Crime No.149.2019 deserves to be quashed. Thus, it has been prayed by learned senior counsel for the applicant that FIR and other criminal proceedings be quashed against the applicant. 5. Learned Dy. Govt. None of the ingredients of any offence found against the applicant. When no offence is made out against the applicant, FIR registered at Crime No.149.2019 deserves to be quashed. Thus, it has been prayed by learned senior counsel for the applicant that FIR and other criminal proceedings be quashed against the applicant. 5. Learned Dy. Govt. Advocate for the respondent/State, on the other hand, opposes the aforesaid prayer made on behalf of the applicant and submits that the applicant is having full knowledge that the foreigners are having E-tourist visa, however, in spite of that he invited the tourists in the premises of prohibited area and without any authority allowed them to work with Robot in the plant. He further submits that the applicant invited the foreigners to do the work in contravention of E-tourist visa and called them in the prohibited premises without getting the permission from the concerned authority. This petition has been filed on the wrong facts, therefore, prays for dismissal of the petition. 6. Having heard learned counsel for the parties, perused the documents filed along with this petition as well as the documents collected during investigation of Crime No.149/2019 registered at Police Station, Gurh, Distt. Rewa. 7. After having heard learned counsel for the parties and on perusal of all the documents, it reveals that the applicant was posted in the SEPL and that company worked in Unit-3 of the Solar Power Plant which is a joint venture of M.P. Urja Vikas Nigam and Solar Energy Corporation of India. No doubt, it is a prohibited and protected place and common man is not allowed to come inside that compound and inspect that work or do any work without having any prior permission or authority. This fact also reveals from the record that two Chinese citizens who are employees of Bosan Rototic Ltd. visited the prohibited premises without any authority and it is the applicant who took them inside the premises without having any prior permission and provided facilities to stay in the premises for doing demo of robot working, in contravention of the conditions of E-tourist visa and it is the applicant who knew well that both the Chinese citizens were not having any business visa or employment visa. The act of the applicant, prima facie, reflects that the applicant invited Chinese citizens knowing well that they were on E-visa, called them and allowed to demonstrate their robot for cleaning solar modules. 8. No doubt, ingredients of Section 7 of the Foreigners Act, 1946 are, prima facie, not attracted against the applicant. However, the applicant provided entries of two Chinese citizens on his behalf and extended facility to them to stay in the protected area and also allowed them to demonstrate robots, used for cleaning the solar modules even though they were not having any business and employment visa for doing that act. The applicant submitted Annexure-A/3 with this petition, that is the order of Superintendent of Police and Registration Officer, Rewa (M.P.) which clearly reflects that the applicant provided facility to the Chinese citizens for getting entered inside the protected area and doing the work. The applicant also wrote a letter (Annexure-A/6) to Superintendent of Police, Rewa. On perusal of Annexure-A/6, it is reflected that after consultation with Adarsh Kumar Singh, applicant called both the Chinese citizens who are representatives of Bosan Robotics Ltd., China and invited them in the Rewa Solar Project where the applicant was doing work in Unit-3 and provided facility for entering the foreigners in the protected and prohibited area of Unit-3 and also invited them to demonstrate their robots for cleaning the solar modules. It is prima facie reflected that the applicant contravened the conditions of Foreigners Act. Thus, the provisions of sub-section (2) of Section 13, Section 14-A and Section 14-C are, prima facie, very much attracted so far as the act of the applicant is concerned. 9. The provisions of sub-section (2) of Section 13, Section 14-A and Section 14-C read as under : "13. (2) Any person who, knowing or having reasonable cause to believe that any other person has contravened the provisions of this Act or of any order made or direction given thereunder, gives that other person any assistance with intent thereby to prevent, hinder or otherwise interfere with his arrest, trial or punishment for the said contravention shall be deemed to have abetted that contravention. 14-A. Penalty for entry in restricted areas, etc.- Whoever- (a) enters into any area in India, which is restricted for his entry under any order made under this Act, or any direction given in pursuance thereof, without obtaining a permit from the authority, notified by the Central Government in the Official Gazette, for this purpose or remains in such area beyond the period specified in such permit for his stay; or (b) enters into or stays in any area in India without the valid documents required for such entry or for such stay, as the case may be, under the provisions of any order made under this Act or any direction given in pursuance thereof, shall be punished with imprisonment for a term which shall not be less than two years, but may extend to eight years and shall also be liable to fine which shall not be less than ten thousand rupees but may extend to fifty thousand rupees; and if he 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 by him. Section 14-C. Penalty for abetment.- Whoever abets any offence punishable under Section 14 or Section 14-A or Section 14-B shall, if the Act abetted is committed in consequence of the abetment, be punished with the punishment provided for the offence. Explanation.- For the purposes of this Section - (i) An or offence is said to be committed in consequence of the abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the offence; (ii) the expression "abetment" shall have the same meaning as assigned to it under Section 107 of the Indian Penal Code (45 of 1860)." 10. It is also reflected from the documents filed along with this petition specially Annexure-A/6, letter of applicant written to the Superintendent of Police, Rewa and other evidence available in the case diary that the applicant did not inform the concerned authority about the foreigners that they are coming for demonstration of robots and they would stay in the premises for that demonstration. In the above circumstances, this Court is of the opinion that there is sufficient material available on record against the applicant to proceed with the provisions of Foreigners Act against the applicant. 11. In the case of State of Haryana & Ors. Vs. Ch. Bhajanlal & ors., (1992) AIR SC 604 Hon'ble Apex Court has culled out some important conditions for quashing of the FIR or complaint, which are as under:- "108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercise. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the F.I.R. or complaint are so absured and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the on concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliablity or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice." 12. But, in the present case, after investigation charge sheet has been filed and prosecution agency is also having a power under Section 173(8) of Cr.P.C. to collect the additional evidence in such type of cases. When there is, prima facie, material available to proceed against the applicant, the Court should not quash the FIR at the gestation period. No doubt, provisions of Section 7 of the Foreigners Act are applicable against owner, Manager, possession holder of the accommodation, however, besides this, other provisions are also available in the Foreigners Act. When there is, prima facie, material available to proceed against the applicant, the Court should not quash the FIR at the gestation period. No doubt, provisions of Section 7 of the Foreigners Act are applicable against owner, Manager, possession holder of the accommodation, however, besides this, other provisions are also available in the Foreigners Act. If Investigating Officer has not quoted that provisions properly, this Court is of the view that in such circumstances, criminal proceedings should not be quashed, if there is material available against the applicant pertains to other provisions of the Foreigners Act. 13. With the aforesaid discussions, this petition sans merit and the same is hereby dismissed. There shall be no order as to cost. 14. Interlocutory application, if any is pending, the same stands dismissed.