IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Crl.MC.No. 1694 of 2009() ------------------------- CC.78/2008 of CHIEF JUDICIAL MAGISTRATE'S COURT, KOTTAYAM .................... PETITIONER(S): ACCUSED: ----------------------------------------- ABEY JACOB, S/O.JACOB ABRAHAM, KOODATHUMANNIL HOUSE, MARIAPPALLY, NATTAKOM, KOTTAYAM. BY ADV. MR.K.GOPALAKRISHNA KURUP RESPONDENT(S): ---------------------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1694 OF 2009 =========================== Dated this the 2nd day of June,2009 ORDER Can an absentee owner of a building, where accommodation was provided to a foreignor could be prosecuted for an offence under section 7 and punishable under section 14 of Foreigners Act, 1946 is the question to be resolved in this petition. Petitioner is admittedly the owner of Villa bearing Door No. 46 of Palm Spring Villa of Skyline Builders at Kalathippady, Kottayam. In his absence, his father Jacob Abraham is managing the Villa. Annexure I FIR was registered by the Sub Inspector of Police, Kottayam East Police Station against the petitioner for an offence under section 7 and 14 of Foreigners Act, 1952 on the allegation that he got secret information that two Swedish Nationals were permitted to reside in the said Villa without informing the Police and petitioner thereby committed the offences. After investigation Annexure III final report was filed alleging that petitioner permitted two Swedish Nationals, who were residing in the Villa from 6.5.2006 onwards, without Crl.M.C.1694/2009 2 furnishing information in violation of the provision of Section 7 and thereby committed an offence under section 7 punishable under section 14 of Foreigners Act. This petition is filed under section 482 of Code of Criminal Procedure to quash all the proceedings initiated under Annexure I FIR and Annexure III final report pending as C.C.78/2008 before Chief Judicial Magistrate, Kottayam. Petitioner contended that he was not in India during the relevant period and when he was informed by his father about the residence of the foreign nationals, he had informed the father to give information to the police regarding that fact and the original of Annexure IV information was furnished to the Superintendent of Police by the father on his behalf on 4.9.2006 itself and therefore there was no violation of the obligation provided under section 7 and hence no offence is committed. It is also contended that in any case a prosecution will not lie against an owner, who is not in India when the foreigners were permitted to reside and therefore the proceedings are to be quashed. Learned counsel also argued that in any case in the absence of mensrea on the part of the petitioner he cannot be presecuted. 2. Learned Public Prosecutor was heard. Crl.M.C.1694/2009 3 3. Learned Public Prosecutor could not point out any investigation conducted on Annexure IV information furnished by the father of the petitioner, for the petitioner, eventhough the statement of one of the witness recorded under section 161 of Code of Criminal Procedure discloses the information furnished under Annexure IV. 4. Section 7 of the Foreigners Act 1946 casts an obligation on the keepers of any hotel or premises to furnish particulars, when accommodation is provided to foreign nationals. Section 7 reads:- “Obligation of hotel keepers and others to furnish particulars-- (1)It shall be the duty of the keeper of any premises whether furnished or unfurnished where lodging or sleeping accommodation is provided for reward, to submit to such person and in such manner such information in respect of foreigners accommodated in such premises, as may be prescribed. Explanation—The information Crl.M.C.1694/2009 4 referred to in this sub-section may relate to all or any of the foreigners accommodated at such premises and may be required to be submitted periodically or at any specific time or occasion. (2) Every person accommodated in any such premises shall furnish to the keeper thereof a statement containing such particulars as may be required by the keeper for the purpose of furnishing the information referred to in sub-section (1). (3) The keeper of every such premises shall maintain a record of the information furnished by him under sub-section (1) and of the information obtained by him under sub-section(2) and such record shall be maintained in such manner and preserved for such period as may be Crl.M.C.1694/2009 5 prescribed, and shall at all times be open to inspection by any police officer or by a person authorised in this behalf by the District Magistrate. (4) If any area prescribed in this behalf the prescribed authority by notice published in such manner as may in the opinion of the authority be best adapted for informing the persons concerned so directs, it shall be the duty of every person occupying or having under his control any residential premises to submit to such person and in such manner such information in respect of foreigners accommodated in such premises as may be specified, and the provisions of sub section (2) shall apply to every person accommodated in any such Crl.M.C.1694/2009 6 premises.” Section 14 of the Act provides the punishment for the offence under section 7. 5. The Foreigners (Report to Police) Order, 1971 published in G.S.R.1884 dated 14.12.1971, in exercise of the powers conferred under section 3 of the Foreigners Act provides that every householder or other person shall report to the officer-in-charge of the nearest police station about the arrival or presence in his household or in any premises occupied by him or under his control of any foreigner or has reason to believe that he is a foreigner. 6. What is provided under section 7 of the Act is that it shall be the duty of the keeper of any premises, whether furnished or unfurnished, where lodging or sleeping accommodation is provided for reward,to submit to such person and in such manner such information in respect of foreigners accommodated in such premises, as may be prescribed. The obligation created under section 7 is not on the owner but the “keeper of the premises” where accommodation is provided. A could be the owner and B could be a keeper of the accommodation. Therefore when Section 7, casts an obligation on the keeper and not the Crl.M.C.1694/2009 7 owner an owner cannot be prosecuted for the offence under section 7, unless there is an allegation that the Keeper cannot provide accommodation to such foreigner without the consent or knowledge of the owner. When the owner is admittedly in Gulf countries as in this case and the Villa is managed by his father who could only be the keeper in the absence of any other definition in the Act, the absentee owner who has nothing to do with the day to day affairs of the premises including providing accommodation to a particular individual, the absentee owner cannot be prosecuted for violation of the obligation cast under section 7 of the Act. In the absence of a case that the Keeper cannot provide accommodation of the premises without the previous consent of the owner. Such an absentee owner cannot be prosecuted. There is absolutely no whisper either in the FIR or in the final report or in any of material produced along with the final report that petitioner who is admittedly in Gulf countries is the keeper of the Villa where accommodation was provided for the two Swedish Nationals. There is no specific case that two Swedish Nationals were accommodated in the Villa with the previous consent or permission or information of the petitioner. In such circumstance, for the failure of Crl.M.C.1694/2009 8 the Keeper of the Villa to furnish the information as obliged under section 7, petitioner who was in Gulf countries at that time cannot be prosecuted. It is more so, when petitioner has a specific case that his father on his behalf had furnished information to the Superintendent of Police evidenced by Annexure IV immediately and that fact was spoken to by one of the witnesses whose statement were recorded by the Investigating Officer under section 161 of Code of Criminal Procedure and there is no case for the Investigating Officer that such information was not furnished. In such circumstance, the case now pending before the Chief Judicial Magistrate against the petitioner is only an abuse of process of court. Hence Petition is allowed. C.C.78/2008 on the file of Chief Judicial Magistrate's Court, Kottayam is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006