In a notable judgment, the Kerala High Court has clarified that foreign nationals who overstay in India after the expiry of their valid documents cannot be categorized as “infiltrators” under Section 14A of the Foreigners Act, 1946. The court’s ruling came in two connected cases, where the accused were charged under Section 14A for overstaying their visas.
The decision, delivered by Justice Bechu Kurian Thomas, addresses the crucial distinction between those who enter India with valid documents and later overstay and those who enter without any valid documents. The court emphasized that the provisions under Section 14A of the Foreigners Act should not be applied to individuals who initially entered India legally.
Background of the Case
The court’s ruling involved two cases, Crl.M.C Nos. 6618 and 6168 of 2024, concerning four foreign nationals who were accused of overstaying their visas and presenting incorrect documents to the authorities. The first case, Crl.M.C No. 6618 of 2024, included Egadwa Mercy Adamba (26) and Gwaro Margret Sebina (30), both Kenyan nationals. The second case, Crl.M.C No. 6168 of 2024, involved Cassandra Drammish (27) from Gambia and Coudufall alias Fathima (23) from Senegal. All four were residents at the Sakhi One Stop Centre in Kakkanad, Ernakulam.
The respondents in the cases were the State of Kerala, represented by the Public Prosecutor, and the Foreign Regional Registration Offices (FRRO) at Cochin International Airport, represented by Smt. Mini Gopinath, Central Government Counsel.
Legal Issues Involved
The main legal issue was whether foreign nationals who entered India with valid documents but subsequently overstayed could be charged under Section 14A of the Foreigners Act, which provides stringent penalties for those who enter or stay in India without valid documents. Another key question was whether the act of presenting someone else’s passport constituted “forgery” under Section 12(1A) of the Passports Act, 1967.
Court’s Observations and Decision
Justice Bechu Kurian Thomas clarified that Section 14A of the Foreigners Act applies specifically to cases where the initial entry into India is without any valid documents. The court observed:
“Section 14(a) of the Act applies when the initial entry into the country was with valid documents, while under Section 14A, the entry or stay in India must have been without any valid documents.”
The court distinguished between the two provisions, noting that Section 14(a) addresses the situation where a foreign national overstays after entering India legally, which carries a lesser penalty of up to five years imprisonment. In contrast, Section 14A is intended for those who have entered or stayed without any valid documents, with penalties ranging from a minimum of two years to a maximum of eight years.
Given that all four petitioners had entered India with valid visas and passports, the court found that they could not be treated as “infiltrators” under Section 14A. Justice Bechu Kurian Thomas further remarked:
“The legislature intended stricter punishment for those who entered the country without valid documents and continued their stay, while a lesser punishment was envisaged for those who legally entered but overstayed.”
The court also quashed the charges under Section 12(1A) of the Passports Act, 1967, which pertains to holding a forged passport or obtaining a passport by suppressing information about nationality. The prosecution had argued that the petitioners presented passports belonging to other persons, thus committing forgery. However, the court disagreed, stating:
“Mere production of another person’s passport does not amount to holding a forged passport. Forgery, as defined under the Indian Penal Code, involves making a false document with intent to cause damage or injury. Mere possession or presentation of another person’s passport does not meet this threshold.”
Case Details:
– Case Numbers: Crl.M.C Nos. 6618 of 2024 & 6168 of 2024
– Bench: Justice Bechu Kurian Thomas
– Petitioners:
– Egadwa Mercy Adamba, 26, Kenyan National
– Gwaro Margret Sebina, 30, Kenyan National
– Cassandra Drammish, 27, Gambian National
– Coudufall alias Fathima, 23, Senegalese National
– Respondents:
– State of Kerala, represented by the Public Prosecutor
– Foreign Regional Registration Offices (FRRO), Cochin International Airport, represented by Smt. Mini Gopinath, Central Government Counsel
– Lawyers for Petitioners: Advocate Aneesh K.R.
