Amir Khan v. State of Assam, Crl.Pet./128/2020
Read the judgment here.
Date of Decision: 20.01.2022
Court: High Court of Gauhati
Judges: Justice Rumi Kumari Phukan
Summary: The Gauhati High Court dismissed a petition that sought to set aside an order of the Chief Judicial Magistrate. Consequently, the Court upheld their conviction the Petitioner and three others under Section 14-A and 14C of the Foreigner’s Act 1946 and upheld the order of their deportation. Crucially, the Court refused to invoke its power under Section 482 of the CrPC on the ground that the order was legal.
Facts: An FIR was filed after information was received that some Rohingyas were residing as tenants in the Sonrighat area. Accordingly, a raid was conducted and eight people were found in the house of the Petitioner. Such persons had allegedly admitted to coming from Bangladesh via Tripura and residing there as tenants for the past four months. Accordingly, an FIR was filed against them under Section 14-A of the Foreigners’ Act, 1946. Section 14-A states that anyone who enters into or stays in an area in India that is restricted to him without order or direction from the authority under this Act shall be punished for not less than two years extending to eight years and a fine. The accused pleaded guilty to the charge against them and resultantly the Chief Judicial Magistrate (hereinafter “CJM”) convicted them. Each was convicted to undergo imprisonment for two years and a fine of Rs.10,000. The CJM also directed the Deputy Commissioner to take the necessary steps for their deportation after they have completed their jail term.
Accordingly, the Petitioner filed a petition under Section 482 of the CrPC for quashing the impugned order. Section 482 provides for the inherent powers of the High Court to either give effect to an order under this Act, prevent abuse of a Court’s power, or secure the ends of justice. The Petitioner contended that he is not a ‘foreigner’ and had pleaded guilty on the wrong advice of the engaged counsel. The Petitioner’s main contention was that he is a permanent resident of village Motinagar of West Tripura District. In support of his claim, the Petitioner produced a birth certificate, as per which he was born on 19.11.1991, in Tripura. Further, the Petitioner produced a school certificate, demonstrating that he had pursued his primary education up to Class VIII in an educational institution in West Tripura District.
Holding: The High Court dismissed the petition on the ground that the Petitioner failed to produce any sort of documents at the time of investigation or framing of charge. These documents were filed after the Petitioner had served around a one-year sentence. Accordingly, the Court considered these to be belated in nature, especially since they had been submitted neither to the investigating officer nor the CJM.
In addition, the Court held that there was no illegality in the order to invoke Section 482. It stated that Section 482 cannot be exercised in a routine manner unless it is shown that the miscarriage of justice has been done in a given case. Based on this rationale, the Court dismissed the petition on the ground that there was no such cogent reason to interfere with the lower court’s order.
Significance: This is a wholly unsatisfactory judgment. It exposes three missteps. Firstly, the Gauhati High Court failed to fulfill its duty under Section 482 of the CrPC. Secondly, it failed to note that the Chief Judicial Magistrate was not competent under law to try such an offense in the first place. Thirdly, it overlooked the settled law that the Magistrate cannot order the deportation of the accused as its power is confined to rendering an opinion on either acquittal or conviction.
On the first point, in Narinder Singh v. State of Punjab, the Supreme Court stated that the inherent powers vested with the High Courts under Section 482 of the CrPC are to be guided by the factors of securing the needs of justice and preventing abuse of the process of the court. Additionally, the Allahabad High Court in Jagdish Valecha v. The State of Madhya Pradesh has held that “Section 482 is a sort of reminder to the High Courts that they are not merely courts in law, but also courts of justice and possess inherent powers to remove injustice.” In the instant case, the Petitioner submitted a birth certificate as well as a school certificate to make a case for his citizenship. Further, he submitted that he was wrongfully advised by his engaged counsel to plead guilty before the CJM. Despite this, the petition was dismissed on the grounds that there were no cogent reasons to interfere with the impugned order.
It is true that high courts cannot appreciate evidence under Section 482. At the same time, they have the discretionary but inherent power to quash a criminal proceeding to meet the ends of justice. Thus, the Gauhati High Court should have played a more active role in securing the needs of justice. Given the gravity of the matter involved, i.e. citizenship, the Court should have remanded the case to the trial court for appreciation of evidence. This is supported by the proposition of law laid down in Mohammad Shamsuzzoha v. Superintendent of Police. The Calcutta High Court noted that it is well-settled law that the high court should not interfere with proceedings commenced before the lower courts or tribunals unless it finds that the same has acted without or in excess of its jurisdiction. Further, an appellant should be provided with all the opportunities to adduce oral or documentary evidence. In conclusion, the Calcutta High Court directed the lower court to hear the matter appropriately. In the same vein, the Petitioner should have been offered the opportunity to prove his case by presenting his evidence before the lower court.
Secondly, the entire case is based on technically incorrect ground as the Chief Judicial Magistrate is not empowered to try an offense under Section 14A and Section 14B of the Foreigner’s Act. The First Schedule of the Code of Criminal Procedure lays down the law on the classification of offenses against other laws. It states that the Chief Judicial Magistrate is only competent to try those offenses with a maximum sentence of seven years. Therefore, the CJM would not be competent to try the current case as the case is premised on the offenses under Section 14A and Section 14B, having a maximum sentence of eight years. Further, the Foreigner’s Act 1946 confers the Central Government with the power to determine who would be a foreigner. Section 6A(1)(b) of the Citizenship Act 1955 states that a person ‘detected to be a foreigner’ will be as per the order given by the Tribunal constituted under the Foreigner’s (Tribunals) Order 1946. Therefore, none of these statutes empower the Chief Judicial Magistrate with the power to pass the order of the Petitioner being a foreigner.
Lastly, the law does not entrust Magistrates with the power to order the deportation of any foreign citizen, for any offense. This was held by the Telangana High Court in Bailly Gui Landry v. State of Telangana (our analysis here). Deportation may only be ordered by competent authorities, like the FRRO, in accordance with the procedure established under the Foreigner’s Act 1946.
In Babul Khan v. State of Karnataka, the Karnataka High Court observed that under Document No.25022/19/2014, the power of the Central Government, under Sections 3(2)(c) and 3(2)(e) of the Foreigner’s Act, 1946, has been delegated to State Governments and other competent authorities. These relevant provisions entrust the Central Government with the requisite power to order the deportation of a foreign citizen. The Central Government has further delegated this power to State Governments. Standard Operating Procedures (SOP) issued by the Ministry of Home Affairs on the ‘Repatriation of Illegal Bangladeshi Immigrants’ and ‘Identification of illegal migrants and monitoring thereof-regarding’ make it clear that the requisite governments have the power to order the deportation of illegal immigrants. Additionally, in Jahid Ahmed v. Union of India, reference is made to the instruction provided in relation to the deportation of Bangladeshi citizens from India to Bangladesh. The instructions state that “The deportation process of foreign nationals are totally entrusted to & administered by the Assam Police (Border Branch). The whole deportation process is realized accordingly, after confirmation & permission received from the Govt. of Assam/ the Govt. of India by the Assam Police (Border) in close coordination with the BSF.” Therefore, the power to order deportation lies with the Central and relevant State Governments.
References:
Upashana Duarah, ‘Manner: Gauhati High Court Denies Relief To Person Declared Foreigner On Admission Of Guilt’ (LiveLaw, 7 February 2022)
Dewangi Sharma, ‘Bailly Gui Landry v. The State of Telangana, Criminal Petition Nos. 4396 and 4400 of 2021’ (Parichay- The Blog, 31 January 2022)
Tora Agarwala, ‘Assam directs Foreigner’s Tribunals to Not Pass ‘Consequential Orders’ on Detention, Deportation’ (The Indian Express, 13 September 2021)
Ministry of Home Affairs, ‘SOP for Repatriation of Illegal Bangladeshi Immigrants’ (Press Information Bureau, 23 July 2014)
Ministry of Home Affairs, ‘Identification of Illegal Migrants and Monitoring Thereof- Regarding’ (8 August 2018)
Pushkraj Deshpande, ‘India: Overview of Section 482 CrPC Vis-A-Vis the Landmark Judgements of the Supreme Court of India’ (Mondaq, 1 May 2018)
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Anushya Ramakrishna.