Foreign Nationals Who Entered India With Valid Documents But Overstayed Cannot Be Prosecuted U/S. 14A Of Foreigners Act: Kerala HC

The case involved four foreign women from Uganda and Kenya who were being prosecuted for overstaying their visas and passports. They faced charges under Sections 14A, 14(a), and 14(b) of the Foreigners Act, as well as Section 12 of the Passports Act.

A Bench of Justice Bechu Kurian Thomas clarified, “In the instant case, all the petitioners had, concededly, entered India with valid documents. They cannot be treated as infiltrators. Hence, the uncontroverted allegations in the final report can only indicate an offence under section 14(a) of the Act and not section 14A of the Act. Inclusion of section 14A of the Act against the petitioners is therefore an abuse of the process of court and is liable to be interfered with.”

Adcovate Aneesh K.R appeared for the Petitioners and Advocate Mini Gopinath appeared for the Respondents.

The Public Prosecutor had argued that Section 14A was applicable because it deals with foreigners who stay in India without any authority.

However, the Court observed that the foreigners had initially entered India with valid documentation, and thus, could not be classified as infiltrators. The Court emphasized, “The distinction between the two provisions concerns the validity of the initial entry. Section 14(a) of the Act applies when the initial entry into the country was with valid documents, while under section 14A of the Act, the initial entry into the country or a particular area must have been without any valid documents. This difference has resulted in providing a minimum punishment for section 14A in contradistinction with section 14(a) of the Act.”

The Court elaborated on the legislative intent behind the provisions, the Court said, “Staying in the country with impunity after infiltrating has to be treated differently from staying beyond the period permitted after legal entry. A reading of the provisions makes it explicit that the intention of the legislature was to impose stricter punishment for those who entered the country without any valid documents and continued their stay, while a lesser punishment was intended for those who entered and stayed in the country with valid documents but continued to stay after the permitted period.”

Additionally, the Court found that the offence under Section 12(1A) of the Passports Act, which pertains to holding forged passports, was not applicable in this case. The Court stated that simply using someone else’s passport does not constitute forgery, which requires the creation of a false document.

As a result, the Kerala High Court set aside the prosecution of the petitioners under Section 14A of the Foreigners Act and Section 12(1A) of the Passports Act, ruling that the charges were not applicable given the circumstances of their entry and stay in India.

Cause Title: Egadwa Mercy Adamba & Anr. v. State of Kerala & Anr., [2024:KER:68254]