STATE OF KERALA Vs. AYYATHAYIL KALEED

JUDGEMENT

(1.) THE appeal has been placed before a Division Bench by Sadasivan J. since, in his opinion, the question raised is an important one,

(2.) THE respondent was prosecuted under section 14 read with section 3 of the Foreigners Act for having entered India on a Pakistani visa and failed to leave the country after the expiry of the term. The Munsif-Magistrate has held that the respondent is a Pakistani national but that the prosecution has failed to produce the order, if any, providing that foreigners shall not remain in India. In the opinion of the Munsif-Magistrate, there is nothing in the Foreigners Order which provides that foreigners shall not remain in India. On these findings, mainly on the second finding the Munsif-Magistrate has acquitted the respondent,

(3.) THE acquittal of the respondent by the Munsif-Magistrate is right, but his reasoning is not. If the finding of the Munsif-Magistrate that the respondent is a Pakistani national is correct he should have convicted the respondent. His finding that there is nothing in the Foreigners Order providing that foreigners shall not remain in India is wrong. Sub-section (1) of Section 3 of the Foreigners Act confers power on the Central Government to make by order provision with respect to foreigners, for prohibiting, regulating or restricting their entry into India or their departure therefrom or their presence therein. Sub-section (2) of the same section mentions some of the provisions that the Central Government may make, and Clause (c) of the subsection relates to providing that a foreigner shall not remain in India or in any prescribed area therein. The Central Government promulgated the Foreigners Order under this Section; and rule 3 prohibits the entry of foreigners into India excepting on the conditions mentioned therein R. 7 then provides that any foreigner who enters India on the authority of a visa shall obtain from the Registration Officer a permit indicating the period during which he is authorised to remain in India etc. Now Clause (Hi) of Sub-rule (3) of R. 7 for instance lays down that the foreigner shall depart from India before the expiry of the period allowed to him etc. Section 14 of the Foreigners Act makes the contravention of any of the provisions of the Act or of any order made under the Act or of any direction given in pursuance of the Act punishable. In view of the finding of the Munsif-Magistrate that the respondent is a Pakistani national (a foreigner), the respondent has contravened rule 7 of the Foreigners Order in not getting permission, when he entered India, to stay in India for a particular time. etc. If the visa Ex. P 1 is construed as a permission and the period mentioned therein is considered to be the period during which the respondent (the foreigner) is allowed to stay in India, then his overstay is again a contravention of the Order. Therefore, if the finding of the Munsif-Magistrate that the respondent is a foreigner stands the respondent should be convicted. But, this finding itself is erroneous as will presently be shown.