Chowdhary Sujith Chandra vs State Of Kerala

K.Haripal, J

The petitioner is the 2nd accused in Crime No.1069 of 2020 of Anchalamoodu Police Station. The case was registered on 29.04.2020 alleging offence under Section 7 read with Sections 14(b) and 14(c) of the Foreigners Act, 1946 and Sections 4 and 5 of the Kerala Epidemic Diseases Ordinance, 2020. On completion of investigation, charge sheet was laid before the Judicial First Class Magistrate Court-I, Kollam where the case has been taken on file as C.C.No.1702 of 2020.

Petitioner is a foreign national, citizen of Bangladesh, who had reached India on 03.03.2020 on a visiting visa. His term of visa was valid till 18.02.2021. As per the terms of the visa, he is not expected to do any employment in the country. It is alleged that, in violation of the Foreigners Registration Rules, he did not report the matter before the authorised officer and also engaged in employment in the hollow bricks factory and buffalo farm of the 1st accused and thus the crime was registered. Now he faces allegations as stated above along with the 1st accused Thomas Leon, who is a citizen of the country. The petitioner has moved this Court under Section 482 of Cr.P.C. for quashing the proceedings. According to him, the allegations are incorrect; no materials have been collected by the prosecution to establish that he was employed by the 1st accused in a brick manufacturing unit; such a unit remains closed during lockdown. According to the learned counsel, the petitioner was a co-worker of the brother-in-law of the 1st accused in Persian Gulf, he had reached the country to attend the marriage of the brother of 1st accused, that he got stranded here for the last 17 months; lockdown was clamped on 23.03.2020 so that he could not continue his occupation in a hotel. He had already booked his return ticket and had to go back to his native country on 31st May, 2020. Due to travel restrictions, he could not go back. By the time, the period of the visa expired and now everyday's stay in the country is illegal. The learned counsel also wanted to convince me that the 1st accused had given Form C certificate on time; the petitioner had never worked in the brick manufacturing unit of the 1st accused; if he was an employee under the 1st accused, an amount would not have been transferred to the credit of the 1st accused; he had no option but to stay with the help of his friends since all hotels had evacuated its inmates. According to the learned counsel, the prosecution has no case that the petitioner is posing any security threat to the country. In the precarious situation, the 1st accused was giving him asylum and accommodated him. No provision under the Foreigners Act or Kerala Epidemic Diseases Ordinance has been violated by him.

As directed by this Court, the Union of India represented by its Secretary, Ministry of External Affairs was impleaded as additional 2nd respondent.

I heard Sri.Ranjith T.R., the learned Senior Public Prosecutor for the 1st respondent and Sri.Suvin Menon for the additional 2nd respondent in detail. The learned Senior Public Prosecutor as well as the Standing Counsel for the 2nd respondent Sri.Suvin Menon have disputed the contentions raised by the learned counsel for the petitioner.

It is true that the petitioner is a Bangladesh citizen who had reached the country on visiting visa on 03.03.2020. Ordinarily, he should have left the country on 31.05.2020 but before that lockdown due to the pandemic was introduced. Whatever it may, the contention of the learned counsel for the petitioner and that of the Standing Counsel and the Senior Public Prosecutor are cutting each other. It is the specific allegation of the prosecution that the petitioner was employed in the brick manufacturing unit of the 1st accused. Correctness of such disputed questions of fact can be ascertained only after taking evidence. Similarly, the question whether he had initially obtained accommodation in a hotel from where he was evicted following covid protocol, the circumstances in which money transactions were taken place between the petitioner and the 1st accused etc. can be understood only after taking evidence. There is no doubt that he is liable to be deported at the earliest. But the correctness of the allegations that he had violated the provisions of the Foreigners Act and also the Kerala Epidemic Diseases Ordinance can be decided only after taking evidence. Sitting in this jurisdiction under Section 482 of the Cr.P.C, it is not possible to form an opinion on the correctness of the rival contentions raised by the learned counsel for the parties.

As there are disputed questions of facts, evidence has to be taken by the trial court. It is the settled proposition of law that High Court cannot embark upon an enquiry as to the contentions of the petitioner is correct and reliable. The test for quashing a legal proceeding at the initial stage is whether uncontroverted materials prima facie establish the offence. When contentions of the parties are mutually exclusive, ordinarily, this Court will not invoke its jurisdiction for quashing the proceedings under Section 482 Cr.P.C. It is also trite that the power of the High Court to quash the proceedings should not be arbitrarily exercised to cut short the normal process of criminal trial except in exceptional cases. Such exceptional circumstances are not available to the petitioner. Therefore, it is only expedient in the interest of justice that C.C.No.1702 of 2020 pending before the Judicial First Class Magistrate Court-I, Kollam should be given an early disposal. In the circumstances, it should be left to be decided by the trial court.

In such circumstances, I direct the learned Judicial First Class Magistrate Court-I, Kollam to dispose of C.C.No.1702 of 2020 within three months from the date of receipt of a copy of this order.

Crl.M.C. is disposed of as above.