MANANTHAVADY v. * *

STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 (CRIME NO.449/2015 OF THIRUNELLI POLICE STATION, WAYANAD DISTRICT). ADDL.R2 IS IMPLEADED FOREIGNERS REGIONAL REGISTRATION OFFICER, FOREIGNERS REGIONAL REGISTRATION OFFICE, CASTLE VIEW, 20/1305, CAPTAIN P.V. VIKRAM ROAD, NEAR BSNL OFFICE, PANNIYANKARA, KOZHIKKODE DISTRICT, PIN – 673 029 ADDL.R2 IS IMPLEADED AS PER ORDER DATED 08.12.2023 IN CRL.M.A.NO.1 OF 2023 IN CRL.M.C.NO.1597 OF 2021 Crl.MC Nos.1597/2021, 1598/2021 2 BY SRI. NOUSHAD K.A., PUBLIC PROSECUTOR BY SRI.MANU S., DSGI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

11.01.2024, ALONG WITH Crl.MC.1598/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC Nos.1597/2021, 1598/2021 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 11TH DAY OF JANUARY 2024 / 21ST POUSHA, 1945 CRL.MC NO. 1598 OF 2021 CRIME NO.450/2015 OF Thirunelly Police Station, Wayanad CC 319/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, PETITIONERS/ ACCUSED : MANANTHAVADY 1 2 AJAYAKUMAR, AGED 56 YEARS, S/O. AYYAPPAN, POOVATHUKUNNEL VEEDU, PALVELICHAM, THIRUNELLI, WAYANAD. AJITH, AGED 36 YEARS, S/O. VIJAYAN, KOTTAMUKKU HOUSE, VELLAMUNDA, MANANTHAVADY, WAYANAD. BY ADV PRAVEEN K.S. RESPONDENTS/ STATE : 1 * 2 * STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 (CRIME NO.450/2015 OF THIRUNELLI POLICE STATION, WAYANAD DISTRICT) ADDL.R2 IS IMPLEADED FOREIGNERS REGIONAL REGISTRATION OFFICER, FOREIGNERS REGIONAL REGISTRATION OFFICE, CASTLE VIEW, 20/1305, CAPTAIN P.V. VIKRAM ROAD, NEAR BSNL OFFICE, PANNIYANKARA, KOZHIKKODE DISTRICT ADDL.R2 IS IMPLEADED AS PER ORDER DATED 08.12.2023 IN CRL.M.A.NO.1 OF 2023 IN CRL.M.C.NO.1598 OF 2021 Crl.MC Nos.1597/2021, 1598/2021 4 BY SRI. T.R. RANJITH, PUBLIC PROSECUTOR BY SRI.MANU S., DSGI BY SMT. MINI V. GOPINATH (CGC) THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

11.01.2024, ALONG WITH Crl.MC.1597/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC Nos.1597/2021, 1598/2021 5 BECHU KURIAN THOMAS, J. =-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.M.C.No.1597 of 2021 & Crl.M.C.No.1598 of 2021 =-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 11th day of January, 2024 ORDER Petitioners are the accused in C.C.No.318 of 2016 and C.C.No.319 of 2016 on the files of the Judicial First Class Magistrate's Court, Manathanvady. They face prosecution for the offences under Sections 14(b) and 14(c) of the Foreigners Act, 1946 (for short, 'the Act').

2. According to the prosecution, the first petitioner as the owner and the 2nd petitioner as the Manager of an Ayurvedic Yoga Holistic Research Centre at Wayanad provided medical treatment to more than a hundred foreign passport holders who came to India on tourist visas during the period from 06.07.2015 to 12.11.2015 and thereby committed the offences alleged.

3. Sri.Praveen K.S., the learned counsel for the petitioners contended that none of the offences alleged against the petitioners are made out as they have not violated any of the statutory provisions. The learned counsel further submitted that neither would Section 14(b) nor Section 14(c) of the Act apply to the allegations levelled by the Crl.MC Nos.1597/2021, 1598/2021 6 prosecution and nor are there any materials to connect the petitioners with the alleged crime. According to him, the prosecution is baseless and cannot under any circumstances result in conviction of the petitioners.

4. Sri.Manu S., the learned Deputy Solicitor General of India and Smt.Mini Gopinath, the learned Central Government Counsel vehemently contended that the offences alleged against the petitioners are clearly made out from the final report itself and therefore, the remedy under Section 482 of the Code of Criminal Procedure, 1973 cannot be invoked.

5. Smt.Mini Gopinath, the learned Central Government Counsel, in her contentions submitted that Section 14(c) of the Act makes violation of orders issued under the Act, 'penal and punishable'. She submitted that more than 100 foreigners landed in Kerala under a tourist visa and were treated at the petitioner's Ayurveda Centre on various dates as inpatients and whether the same was a medical treatment or not is a matter that could be considered only after due trial and hence the inherent powers of this Court ought not to be invoked.

6. Sri.Noushad K.A., and Sri.Ranjith T.R., the learned Public Prosecutor also submitted that the remedy under 482 Cr.P.C. cannot be invoked to quash the proceedings and prima facie the offences alleged are made out from the final report itself. Sri.Ranjith T.R., the learned Public Prosecutor also submitted that Clause 14(c) of Registration of Foreigners Rules, 1992 mandates that every 'Keeper of a hotel' must submit Form C. Crl.MC Nos.1597/2021, 1598/2021 7

7. Section 14 of the Foreigners Act, 1946 reads as below :- [14. Penalty for contravention of provisions of the Act, etc. — Whoever. — (a) remains in any area in India for a period exceeding the period for which the visa was issued to him; (b) does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder; (c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if he has entered into a bond in pursuance of clause (f) of sub-section (2) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting Court why such penalty should not be paid by him. Explanation. — For the purposes of this section, the expression “visa” shall have the same meaning as assigned to it under the Passport (Entry into India) Rules, 1950 made under the Passport (Entry into India) Act, 1920 (34 of 1920).

8. As per the above extracted Section 14(b), it needs no elaborate discussion that the said clause will apply only to persons who have come into India with a valid visa. There is no case for the prosecution that petitioners were tourists or persons who had come into India on the basis Crl.MC Nos.1597/2021, 1598/2021 8 of a visa. Therefore, Section 14(b) cannot have any application to the petitioners.

9. Sub-section (c) of Section 14 makes violation of provisions of the Act or any order issued or direction given in pursuance to the Act punishable. The allegation of the prosecution is that petitioners had provided medical treatment to more than a hundred foreigners who had come to India for tourism purposes and thereby violated the Visa Manual. As per paragraph 3.3(c) of the Visa Manual, “hospitals” cannot admit foreigners who had arrived on a tourist visa for medical treatment without converting the tourist visa into a medical visa. The said provision contemplates that the place where the treatment is meted out must be first a hospital and secondly a medical treatment as such, must be provided to the tourist.

10. A reading of the final report and the materials collected along with it does not indicate anywhere that petitioners' resort is a hospital. A hospital, in common parlance is a place where medical treatment is provided. Though a programme under Ayurveda may have medical treatments also, it cannot be assumed that every Ayurveda centre is providing a medical treatment unless the centre is certified as a hospital. This Court is conscious of the fact that in contra distinction to Ayurveda Centres, there are Ayurveda hospitals where pure medical treatment in ayurveda is provided. Nowhere has the prosecution collected any material to show that petitioners are conducting a hospital. In fact in the Crl.MC Nos.1597/2021, 1598/2021 9 statement of CW1 itself, it is mentioned that the petitioners are conducting an Ayurveda Yoga Villa in contradistinction to a hospital. In such circumstances, the allegation in the final report that petitioners had provided Ayurvedic medical treatment to large number of foreigners who had come down to India on a tourist visa is not supported by any material.

11. A reading of the final report does not indicate that petitioners had not submitted Form 'C' as it is evident from Annexure 6 of Crl.M.C.No.1597 of 2021 that it was only from July 2015 onwards that petitioners started submitting 'C' form electronically. Thus, the prosecution itself has no case that petitioners had not submitted 'C' form and hence the contention of the learned Public Prosecutor on that count is without any basis.

12. In view of the above discussion, it is clear that the prosecution of the petitioners for contravention of Sections 14(b) and 14(c) of the Act is an abuse of the process of the court. Accordingly, all proceedings in C.C.No.318 of 2016 and C.C.No.319 of 2016 on the files of the Judicial First Class Magistrate's Court-II, Mananthavady are hereby quashed. These criminal miscellaneous cases are allowed. Sd/- BECHU KURIAN THOMAS, JUDGE RKM Crl.MC Nos.1597/2021, 1598/2021 10 APPENDIX OF CRL.MC 1597/2021 PETITIONERS' ANNEXURES : ANNEXURE I ANNEXURE II A TRUE COPY OF FIR IN CRIME NO.449/2015 OF THIRUNELLI POLICE STATION, WAYANAD DISTRICT. THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.449/2015 OF THIRUNELLI POLICE STATION, WAYANAD DISTRICT. ANNEXURE III A TRUE COPY OF THE FIR IN CRIME NO.450/2015 OF THGIRUNELLI POLICE STATION. ANNEXURE IV A TRUE COPY OF THE COMMON ORDER IN BA NO.663 AND 664 OF 2016 PASSED BY THIS HONOURABLE COURT. Crl.MC Nos.1597/2021, 1598/2021 11 APPENDIX OF CRL.MC 1598/2021 PETITIONERS' ANNEXURES : ANNEXURE 1 ANNEXURE II ANNEXURE III ANNEXURE IV A TRUE COPY OF FIR IN CRIME NO.450/2015 OF THIRUNELLI POLICE STATION, WAYANAD DISTRICT. THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.450/2015 OF THIRUNELLI POLICE STATION, WAYANAD DISTRICT. A TRUE COPY OF THE FIR IN CRIME NO.449/2015 OF THIRUNELLI POLICE STATION, WAYANAD DISTRICT. A TRUE COPY OF THE COMMON ORDER IN BA NO.663 & 664 OF 2016 PASSED BY THIS HONOURABLE COURT.