IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 Crl.MC.No. 4695 of 2010() ------------------------------------- PETITIONER(S): ACCUSED --------------------------------------- GAMERALALAGE MALINI MANGALIKA, D/O.HEENA AMMA, DEWAHUA, KADASSERI, SRILANKA, STAYING AT COUNTRY CLUB RESORT, KOVALAM, THIRUVANANTHAPURAM. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL SMT.SHYAMA.P RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY. 3. SUB INSPECTOR OF POLICE, KOVALAM POLICE STATION, THIRUVANANTHAPURAM. 4. FOREIGNERS REGISTRATION OFFICER AND, DY.COMMISSIONER OF POLICE (CRIME & ADMN), THIRUVANANTHAPURAM CITY, KERALA STATE. BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/02/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P. JOSEPH, J. ------------------------------------------------ Crl. M.C. No. 4695 of 2010 ------------------------------------------------ Dated this the 16th day of February, 2011 O R D E R Petitioner is accused in Crime No.355/10 of Kovalam Police station and C.C.No.643/10 of the Court of learned Judicial First Class Magistrate-III, Neyyattinkara for offence punishable under Section 14(b) of the Foreigners Act, 1946 (for short 'the Act'). Case against petitioner is that she, being a Sreelankan citizen and domiciled in that country came to Kovalam on a tourist visa and during the period from 19.06.2010 to 31.07.2010 worked as masseur in Nedumam Country club resort in violation of the tourist visa granted to her and thereby committed offence as alleged. The Sub Inspector, Kovalam on getting information is said to have visited the said resort on relevant day and found petitioner engaged in massaging a woman from Andhra Pradesh. Thereon, case was registered against the petitioner as aforesaid. Annexure A3 is the FIR. At that stage petitioner approached this Crl. M.C. No. 4695 of 2010 2 Court with Crl.M.C. No.3642/2010 challenging the FIR. This Court disposed of that petition by order dated 09.09.2010, leaving it open to the petitioner to challenge the final report since by that time final report (Annexure A4) had already been filed. Petitioner challenges the final report. It is contented by the learned counsel that even if the whole allegations are accepted, that does not reveal commission of any offence as alleged. According to the learned counsel apart from alleging that petitioner was working as a “masseur”, there is no case or material to show that she was working for any remuneration. No document is produced to evidence such work. According to the learned counsel as per law in force in this country even for a temporary employment there must be for a period of six months work. Learned counsel has also invited my attention to the statement of some of the witnesses which is to the effect that petitioner was undergoing 'training' in massaging which according to the learned counsel does not amount to a “work” attended by Crl. M.C. No. 4695 of 2010 3 remuneration. 2. Learned Public Prosecutor contended that petitioner admittedly came to India on a tourist visa which does not permit work with or without remuneration or even training under anybody and hence, there is violation of conditions of visa which amounted to offence as alleged. It is contended that there is no reason to interfere. 3. The word “Tourist” is defined in Registration of foreigners rules 1992(for short 'the Rules') as meaning a foreigner having no residence or occupation in India whose stay in India does not ordinarily exceed six months, who has no other object in visiting India than recreation, sightseeing or attending, in a representative capacity, meetings convened by the Government of India or International bodies or any other meeting or conference cleared by the Government of India. That definition does not enable a tourist to work with or without remuneration or undergo any training with or without any Crl. M.C. No. 4695 of 2010 4 remuneration. I must also bear in mind statement of the administrative officer of the resort concerned that except food and accommodation petitioner was not being given anything as payment (for engaging in massaging). It is a question to be decided whether food and accommodation was free of cost. At any rate, I stated that work with or without remuneration or, training does not come within the permitted category of acts a tourist can perform while on tourist visa as stated in the Rules. Viewed in that line prima facie the contention of petitioner that she was not working for gain and hence there is no violation of visa and consequently no offence is made out cannot be accept. 4. Yet another contention raised is that no document is produced to prove that petitioner was working in the resort. Whether materials brought before Court in the absence of document to that effect is sufficient is a matter to be decided by the Court. Resultantly, this petition fails and it is dismissed but, Crl. M.C. No. 4695 of 2010 5 without prejudice to the right of petitioner to take appropriate defence in the trial court. The trial court shall consider the matter untrammeled by any observation or findings contained in this order. Trial court shall expedite disposal of the case considering the fact that petitioner is a foreign national, the period of her visa has expired but, she is continuing in this country on the strength of an order passed by this court. The case shall be disposed of within two months from the date of receipt of a copy of this order. THOMAS P. JOSEPH, JUDGE. rkc