[S.14A Foreigners Act] Foreigners Who Overstay After Expiry Of Documents Cannot Be Treated As Infiltrators: Kerala High Court

Justice Bechu Kurian Thomas  observed that the legislature intended to impose lesser penalties on foreigners who continued to stay in India after the expiry of their documents under Section 14 (a) and stated that they have to be treated differently from those who enter the country illegally without any documents

“In the instant case, all the petitioners had, concededly, entered India with valid documents. They cannot be treated as infiltrators. Hence, the uncontroverted allegations in the final report can only indicate an offence under section 14(a) of the Act and not section 14A of the Act. Inclusion of section 14A of the Act against the petitioners is therefore an abuse of the process of court and is liable to be interfered with.”

As per facts, four foreign nationals who are women from Uganda and Kenya are facing prosecution for staying in India after the expiry of their visa and passport. They are prosecuted for offences under Sections 14A, 14 (a), 14 (b) of the Foreigners Act and Section 12 (offences and penalties) of the Passports Act.

The Public Prosecutor contended that they have to be proceeded against under 14A of the Act. It was argued that Section 14A is applicable where a foreigner stays in India without authority.

The Court noted that the entry of foreign nationals into India was legal since they had valid visas and passports at the time of entry into India.

The Court stated that entry into India and departure of foreigners from the country are regulated by the Foreigners Act. It was noted that Section 14 was substituted and Section 14A was inserted with effect from April 20, 2004, to include stricter measures to prevent infiltration.

Section 14(a) of the Foreigners Act stipulates a penalty of up to five years imprisonment for foreigners who enter India legally but remain in the country beyond the validity of their visa or engage in activities that violate the conditions of their visa. It noted that Section 14 A provides a penalty up to 8 years imprisonment, with a minimum punishment of 2 years imprisonment for entering India illegally without any documents and remaining in the country without authority or entering into restricted areas and continuing to stay without documents.

The court stated that the distinction between Section 14 (a) and 14A is the nature of initial entry into the country, whether it was made with a valid visa and passport or without documents.

“The distinction between the two provisions concerns the validity of the initial entry. Section 14(a) of the Act applies when the initial entry into the country was with valid documents, while under section 14A of the Act, the initial entry into the country or a particular area must have been without any valid documents. This difference has resulted in providing a minimum punishment for section 14A in contradistinction with section 14(a) of the Act.”

The Court added that the intent of the legislature was to impose stricter punishment to persons who stayed in the country with impunity after infiltrating without documents rather than those persons who stayed beyond the period permitted after legal entry.

“Staying in the country with impunity after infiltrating has to be treated differently from staying beyond the period permitted after legal entry. A reading of the provisions makes it explicit that the intention of the legislature was to impose stricter punishment for those who entered the country without any valid documents and continued their stay, while a lesser punishment was intended for those who entered and stayed in the country with valid documents but continued to stay after the permitted period.”

In the facts of the case, the Court noted that the entry of petitioners into India was with valid documents. It stated that they cannot be treated as infiltrators and cannot be proceeded under Section 14 A of the Act.

Further, the Court stated that the offence under Section 12 (1A) of the Passports Act is also not attracted since they have not committed forgery. As per Section 12 (1A), holding a forged passport is a punishable offence. It stated that merely producing another person's passport would not amount to forgery and that forgery would arise only when a person makes a false document.

The Court thus set aside the prosecution against petitioners under Section 12 (1A) of the Passports Act and Section 14A of the Foreigners Act.

Counsel for Petitioners: Advocate Aneesh K R

Counsel for Respondents: Central Government Counsel Mini Gopinath

Case Number: CRL.MC NO. 6618 OF 2024 & Connected Case

Case Title: Egadwa Mercy Adamba v State of Kerala & Connected Case

Citation: 2024 LiveLaw (Ker) 569

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