REGISTRAR, JUDICIAL COMMISSIONERS COURT Vs. FR SEBASTIAO FRANCISCO XAVIER DOS REMEDIES MONTEIRO AND STATE

JUDGEMENT

(1.) This is one of those exceptional cases where exercise of revisional jurisdiction suo motu under Section 439(1) of the Code of Criminal Procedure, is considered necessary in the ends of justice.

(2.) The respondent - Fr. Sebastiao Francisco Xavier dos Remedies Monteiro - was served with an order under Section 3(2)(c) of the Foreigner's Act, 1946, requiring him not to remain in India after the expiry of the date of its service. This order, dated 11th April, 1969, was issued by the Lt. Governor of this territory. He did not leave India. He was accordingly prosecuted in the Court of the First Class Magistrate, Mapusa, on 28th April, 1969. The charge was framed against him by the learned Magistrate under Section 14 of the Foreigner's Act. He pleaded not guilty. In support of the prosecution were examined prosecution witnesses Domingos Fernandes (P.W. 1), Shivaji K. Zamaoli (P.W. 2), Cruz D'Souza (P.W. 3), and Vishwanat G. Dessai (P.W. 4). Out of these witnesses three are inspectors of police, while Cruz D'Souza is a Head Constable. The respondent led no defence evidence. In his statement under Section 342 of the Code of Criminal Procedure, he admitted that he had been served with an order requiring him to leave India. The reason why he did not leave India was that he was born in Goa where he and his ancestors had lived for centuries; that as Goa was a part of Portugal as its overseas province he was a Portuguese national; that the Government of India had occupied this territory forcibly and that in spite of de facto occupation by the Government of India it continued de jure as Portuguese territory; and that he did not become a foreigner when he declared in 1962 that he wanted to retain the Portuguese nationality. The learned Magistrate, after considering the prosecution evidence and this statement of the respondent, convicted him under Section 14 of the Foreigners Act for breach of the order under Section 3(2)(c) issued thereunder. The sentence imposed by the learned Magistrate on 13th May, 1969, was simple imprisonment for three months and a fine of Rs. 100/- or, in default of its payment, to undergo further imprisonment for 20 days. The respondent had previously been convicted in 1965 for contravention of a similar order dated 10th June, 1965, under Section 3(2)(c), by another Magistrate, and was sentenced to undergo simple imprisonment for 30 days and a fine of Rs. 50/-, and, in default, to undergo simple imprisonment for 5 days. The appellant appealed against that decision to the learned Sessions Judge but that appeal was rejected. He then moved this Court in revision, but without success. He felt aggrieved and later sought special leave to appeal against the decision of this Court. This leave was granted by their Lordships of the Supreme Court and after hearing the parties their Lordships dismissed the said appeal by order dated 26th March, 1969. The sentence imposed on 13th May, 1969, was considered grossly inadequate and, therefore, a notice was issued on 27th May, 1969, under Section 439(2) of the Code of Criminal Procedure, requiring him to show cause why this sentence should not be enhanced, and also why the imprisonment should not be rigorous. This action was taken suo motu for the purpose of satisfying myself about the correctness or propriety of the sentence imposed, after calling for the record of the criminal proceeding. This, in short, is the background of this case.

(3.) The respondent, in response to the notice issued to him, reaffirmed that he is innocent. In his own words :-