Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of decision: 26 NOVEMBER, 2024
IN THE MATTER OF:
+ CRL.A. 507/2024 & CRL.M.(BAIL) 1205/2024
UBABUEZE CHIJIOKE EMMAUNLE @ JOJO .....Appellant
Through: Mr. Rohan J. Alva, Advocate
(DHCLSC)
versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Tarang Srivastava, APP for the
State.
Mr. Arnav Kumar, CGSC with Mr.
Aranya Sahay, Advocate for FRRO
and Inspector Satish Kumar, FRRO
Unit.
SI Braj Lal, AGS/Crime Branch
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. Challenging the Judgment dated 04.04.2024, passed by the Special
Judge, NDPS, Saket Courts, in SC No.7587/2016, by which the Appellant
herein has been convicted for offences under Section 14 of the Foreigners
Act and Section 174A IPC; and Order on sentence dated 10.05.2024 by
which the Appellant herein has been sentenced to undergo 3 years of
rigorous imprisonment for offences under Section 174A IPC and 3 years of
rigorous imprisonment for offences under Section 14 of the foreigners Act
along with fine of Rs.50,000/-, the Appellant herein has approached this
Court with the following prayers:
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"a) Set-aside the impugned Judgment dated 04.04.2024
and order on Sentence dated 10.05.2024 passed by Ld.
Special Judge (NDPS), South District, Saket Courts,
Delhi in SC No.7587/2016 in FIR No. 113/2015, PS:
Crime Branch, U/S. Sec. 14 Foreigners Act and 174A
IPC; and/or
b) acquit the appellant of all the charges framed against
him or;
c) release the appellant, for the offence under section 14
Foreigners Act and 174A IPC for a period already
undergone;
d) pass any other order or further orders as this Hon‟ble
Court may deem fit and proper on the facts and
circumstances of the case and in the interest of justice."
2. The facts, in brief, leading to the present appeal are as under:
a) It is stated that on 25.07.2015 at about 02.00 AM, secret
information was received by Inspector Prem Chand Khanduri,
SWR, Crime Branch that the Appellant herein, who is a
member of Nigerian drug syndicate, would come near Green
Park Gurudwara for supply of cocaine to his customers. The
information was reduced in writing vide DD No. 30 dated
25.07.2015, Crime Branch, Delhi and a raiding team was
constituted.
b) It is stated that the raiding team along with the informer reached
Green Park Gurudwara. It is stated that at about 3:15 AM, two
persons, on one blue coloured Royal Enfield motorcycle
bearing registration No. UP16AY9095, came from the side of
Aurobindo Marg going towards Arjun Nagar and stopped near
the Gurudwara. It is stated that the occupants of the motorcycle,
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who were identified as the customers of the Appellant herein by
the secret informer, were waiting for someone. It is further
stated that after about five minutes, one more person, who was
also identified as the customer of the Appellant herein, came
there and stopped about 5-10 ft. away from the motorcycle. It is
stated that at about 3:30 AM, the Appellant herein, as identified
by the secret informer, came there from the side of Arjun Nagar
and stopped on the road opposite to Gurdwara. It is stated that
on seeing the Appellant herein, all the three persons crossed the
road and went to the Appellant herein and started talking. It is
stated that while talking, the Appellant herein took out
something from his pocket and gave it to the persons who were
waiting for him.
c) It is stated that all the four persons were apprehended by the
raiding team. It is stated that apart from the Appellant herein,
the three other persons, who had come there to purchase
contraband substance from the Appellant herein were identified
as Rahul Chaudhary, Ankit Batra, and Anshuman Tiwari. It is
further stated that all the four persons were apprised for their
legal rights and written notices under Section 50 NDPS Act
were served to them. It is stated that the accused persons denied
being searched before search Gazetted officer or Magistrate,
upon which Inspector P.C. Khandoori conducted the search of
the Appellant herein. It is stated that one polythene packet
containing white coloured powder was recovered from the
Appellant herein which was tested with drug testing kit and it
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was found to be cocaine. It is stated that the packets given by
the Petitioners herein to two of his customers were also tested
and were also found to be cocaine. It is stated that the items
were weighed on electronic weighing machine and the recovery
made from the Appellant herein was found to be 60 gms, and
the recovery from his customers was found to be 2.5 gms each.
It is stated that the contraband was seized and samples were
drawn and the present FIR, being FIR No. 113/15 dated
25.07.2015 was registered at PS Crime Branch for offences
under Sections 21/29 NDPS Act and 14 Foreigners Act and all
the accused persons were taken into custody.
d) It is stated that during investigation, the samples were sent to
FSL Rohini for examination. It is stated that the expert's
analysis report has been received wherein the expert has opined
that on examination of the contraband recovered from the
Appellant herein it was found that it contains cocaine.
e) After completion of the investigation, chargesheet has been
filed against the Appellant herein and the co-accused Rahul
Chaudhary, Ankit Batra, and Anshuman Tiwari for offences
under Sections 21/29 NDPS Act, Section 14 of the Foreigners
Act and Sections 468/471 IPC.
f) It is stated that the Trial Court vide order dated 09.11.2016
granted bail to the Appellant herein. It is further stated the
Appellant herein jumped the bail and on 25.03.2019, Non-
bailable warrants were issued against the petitioner. It is stated
that notice under Section 82 CrPC was issued against the
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Appellant and the Appellant was declared a Proclaimed
Offender vide order dated 14.10.2019.
g) It is stated that the Appellant was again arrested on 31.03.2021.
It is stated that offence under Section 174A was framed against
the Appellant herein on 01.05.2023 as he had absconded during
trial.
h) It is stated that thereafter, the Appellant herein filed several bail
applications, however, all the bail applications were dismissed
by the Trial Court and this Court. The last such bail application
was dismissed by this Court on 04.07.2023.
i) It is stated that after completion of investigation, the Trial Court
vide Judgment dated 04.04.2024 acquitted the Appellant herein
for offences under Section 21(b) NDPS Act, however, the Trial
Court convicted the Appellant herein for offences under Section
14 of the Foreigners Act and Section 174A IPC. Vide Order on
sentence dated 10.05.2024, the Trial Court has sentenced the
Appellant to undergo three years Rigorous Imprisonment for
the offence punishable under Section 174A IPC. Further, the
Appellant has also been sentenced to undergo three years of
Rigorous Imprisonment for the offence punishable under
Section 14 Foreigners Act along with a fine of Rs.50,000/-, in
case of default in payment of fine, the Appellant was to further
undergo Simple imprisonment for a period of three months.
j) It is this Order which has been challenged by the Appellant in
the present appeal.
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3. The present appeal is, therefore, limited only to conviction under
Section 14 of the Foreigners Act and Section 174A IPC.
4. Notice was issued on 28.05.2024. Status Report has been filed. Since
the Appellant is a foreign national, this Court vide Order dated 22.07.2024
impleaded FRRO as a party to the present petition. On 24.07.2024, the
learned Counsel appearing for the FRRO stated that the visa of the
Appellant has expired and the Appellant will have to be deported. As per the
Status Report filed by the FRRO, it is stated that the Appellant arrived in
India on 27.06.2012 on the strength of Nigerian Passport which was valid
till 13.01.2016 and an Indian Medical Visa which was valid till 03.09.2012.
It is stated in the Status Report that the Appellant did not approach any
hospital for his treatment and after expiry of his visa on 03.09.2012, the
Appellant did not approach any FRRO Office for registration or further
extension of visa.
5. Material on record also indicates that the Appellant departed from
India on 20.07.2012 and there is no record of any subsequent entry of the
Appellant in India, which shows that he has entered India illegally.
6. Section 14 of the Foreigners Act prescribes for penalties for
contravention of the provisions of the Foreigners Act. Undisputedly, the
Appellant herein arrived in India on a medical visa on 27.06.2012 and the
medical visa of the Appellant was valid till 03.09.2012 and the Appellant’s
passport was valid till 13.01.2016. The Appellant was arrested on
25.07.2015, however, there is neither any endorsement in the Passport of the
Appellant nor any document in the possession of the Appellant to show that
the Appellant had a valid visa at the time of his arrest. The Appellant was
granted bail on 09.11.2016 and the Appellant was in the country without a
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valid passport and without visa. On being released on bail, the Appellant did
not approach any FRRO Office in the country seeking extension of visa
which had already expired. The Appellant resided in India without visa and
a valid passport and, therefore, the Appellant is an illegal migrant under the
Indian Citizenship Act.
7. Section 3(2)(a) of the Foreigners Act gives power to the Central
Government to make Orders with respect to the entry and departure of
foreigners into India. In terms of the powers conferred on the Government of
India under Section 3(2)(a) of the Foreigners Act, the Government of India
has brought out the Foreigners Order, 1948. Clause 3(1)(a) of the Foreigners
Order mandates that no foreigner shall enter India otherwise than at such
port or other place of entry on the borders of India as a Registration Officer
having jurisdiction at that port or place may appoint in this behalf without
the leave of the civil authority having jurisdiction at such port or place.
Clause 3(2) of the Foreigners Order prescribes that leave to enter India shall
be refused if the foreigner is not in possession of a valid passport or visa for
India or has not been exempted from the possession of a passport or visa.
Clause 3B of the Foreigners Order provide that a foreigner shall hold a valid
passport or other valid travel document relating to passport, as the case may
be, while living in India. Clause 3B of the Foreigners Order along with the
explanation reads as under:
“ 3B. Requirement of holding a valid passport or other
valid travel document while living in India. [Inserted
by Notification No. S.O. 1027(E), dated 8.3.2022 and
published in the Gazette of India, Extra., Part II,
Section 3(ii), dated 9.3.2022, p. 2, No. 996.
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- Save as otherwise provided in terms of this Order or
Rule 4 of the Passport (Entry into India) Rules, 1950, a
foreigner shall hold a valid passport or other valid
travel document relating to passport, as the case may
be, while living in India.
Explanation. - For the purpose of this paragraph,
"other valid travel document" includes emergency
certificate or certificate of identity or such other
document which has been issued by or under the
authority of the Government of a foreign country
satisfying the conditions specified in the Passport
(Entry into India) Rules, 1950 as made under the
Passport (Enter into India) Act, 1920 (34 of 1920)”
8. From the facts, which are not in dispute, it is clear that the Appellant
has been residing in India without having valid documents and, therefore,
the Appellant has violated Foreigners Act. The deposition given by PW-7
corroborates the fact that the Appellant departed from India on 20.07.2012
and there is no record of his subsequent entry in India and that the Appellant
has entered India illegally.
9. In view of the above, this Court does not find any infirmity in the
Judgment dated 04.04.2024, by which the Appellant has been convicted for
offences under Section 14 of the Foreigners Act and Order on sentence
dated 10.05.2024 by which the Appellant has been sentenced to undergo 3
years of rigorous imprisonment for offences under Section 14 of the
foreigners Act along with fine of Rs.50,000/-. However, in view of the fact
that the Appellant was in custody and was not in a position to get his
documents, this Court is of the opinion that the Appellant’s sentence must be
reduced to one already undergone.
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10. The Appellant has also been charged for offences under Section 174A
IPC. The allegation against the Appellant is that during the pendency of the
trial, the Appellant absconded while on bail and vide Order dated
25.03.2019 non-bailable warrants were issued against the Appellant and
proceedings under Section 82 CrPC were initiated against the Appellant.
The Trial Court examined the process server as CW-1 and on being satisfied
that even after being served notice under Section 82 Cr.P.C, the Appellant
has failed to appear before the Trial Court, the Appellant was declared as a
Proclaimed Offender vide Order dated 14.10.2019. It was only on
31.03.2023, when the Appellant was re-arrested by PW-23, SI Gautam on
the basis of a secret information. The Trial Court has held that the Appellant
has not lead evidence to show that the proclamation issued against the
Appellant was not proper.
11. It was contended by the learned Counsel for the Appellant that in the
absence of any complaint under Section 195 Cr.P.C, the Trial Court could
not have taken cognizance under Section 174A IPC.
12. At this juncture, it is pertinent to reproduce Section 174A IPC and the
same reads as under:
“ Section 174A. Non-appearance in response to a
proclamation under section 82 of Act 2 of 1974.
Whoever fails to appear at the specified place and the
specified time as required by a proclamation published
under sub-section (1) of section 82 of the Code of
Criminal Procedure, 1973 shall be punished with
imprisonment for a term which may extend to three
years or with fine or with both, and where a
declaration has been made under sub-section (4) of
that section pronouncing him as a proclaimed
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offender, he shall be punished with imprisonment for a
term which may extend to seven years and shall also be
liable to fine. ”
13. Section 195 Cr.P.C provides for Prosecution for contempt of lawful
authority of public servants, for offences against public justice and for
offences relating to documents given in evidence. Section 195 Cr.P.C reads
as under:
“ Section 195. Prosecution for contempt of lawful
authority of public servants, for offences against public
justice and for offences relating to documents given in
evidence.
(1) No Court shall take cognizance--
(a) (i) of any offence punishable under sections
172 to 188 (both inclusive) of the Indian Penal
Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such
offence, or
(iii) of any criminal conspiracy to commit such
offence, except on the complaint in writing of the
public servant concerned or of some other public
servant to whom he is administratively
subordinate;
(b) (i) of any offence punishable under any of the
following sections of the Indian Penal Code (45 of
1860), namely, sections 193 to 196 (both
inclusive), 199, 200, 205 to 211 (both inclusive)
and 228, when such offence is alleged to have
been committed in, or in relation to, any
proceeding in any Court, or
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(ii) of any offence described in section 463, or
punishable under section 471, section 475 or
section 476, of the said Code, when such offence
is alleged to have been committed in respect of a
document produced or given in evidence in a
proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or
attempt to commit, or the abetment of, any offence
specified in sub-clause (i) or sub-clause (ii),
except on the complaint in writing of that Court or
by such officer of the Court as that Court may
authorise in writing in this behalf, or of some
other Court to which that Court is subordinate.]
(2) Where a complaint has been made by a public
servant under clause (a) of sub-section (1) any
authority to which he is administratively subordinate
may order the withdrawal of the complaint and send a
copy of such order to the Court; and upon its receipt
by the Court, no further proceedings shall be taken on
the complaint:
Provided that no such withdrawal shall be ordered if
the trial in the Court of first instance has been
concluded.
(3) In clause (b) of sub-section (1), the term "Court"
means a Civil, Revenue or Criminal Court, and
includes a tribunal constituted by or under a Central,
Provincial or State Act if declared by that Act to be a
Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a
Court shall be deemed to be subordinate to the Court
to which appeals ordinarily lie from the appealable
decrees or sentences of such former Court, or in the
case of a Civil Court from whose decrees no appeal
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ordinarily lies, to the principal Court having ordinary
original civil jurisdiction within whose local
jurisdiction such Civil Court is situate:
Provided that—
(a) where appeals lie to more than one Court, the
Appellate Court of inferior jurisdiction shall be the
Court to which such Court shall be deemed to be
subordinate;
(b) where appeals lie to a Civil and also to a Revenue
Court, such Court shall be deemed to be subordinate to
the Civil or Revenue Court according to the nature of
the case or proceeding in connection with which the
offence is alleged to have been committed.”
14. Section 195(1)(a)(i) Cr.P.C mandates that no Court shall take
cognizance of any offence punishable under sections 172 to 188 (both
inclusive) of the Indian Penal Code except on the complaint in writing of by
a public servant or of some other public servant to whom the public servant
is subordinate. Section 174A IPC is covered under Section 195(1)(a)(i). In
the present case, no complaint has been filed.
15. Learned Counsel for the Appellant places reliance on the Judgment of
the Apex Court in C. Muniappan v. State of T.N., (2010) 9 SCC 567, and
more particularly on paragraphs No.27 to 33 of the said Judgment which
reads as under:
“ 27. Section 195 CrPC reads as under:
“195. Prosecution for contempt of lawful
authority of public servants, for offences against
public justice and for offences relating to
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documents given in evidence.—(1) No court shall
take cognizance—
(a)(i) of any offence punishable under Sections
172 to 188 (both inclusive) of the Penal Code,
1860, or
*
except on the complaint in writing of the public
servant concerned or of some other public servant
to whom he is administratively subordinate;”
28 . Section 195(1)(a)(i) CrPC bars the court from
taking cognizance of any offence punishable under
Section 188 IPC or abetment or attempt to commit the
same, unless, there is a written complaint by the
public servant concerned for contempt of his lawful
order. The object of this provision is to provide for a
particular procedure in a case of contempt of the
lawful authority of the public servant. The court lacks
competence to take cognizance in certain types of
offences enumerated therein. The legislative intent
behind such a provision has been that an individual
should not face criminal prosecution instituted upon
insufficient grounds by persons actuated by malice, ill
will or frivolity of disposition and to save the time of
the criminal courts being wasted by endless
prosecutions. This provision has been carved out as
an exception to the general rule contained under
Section 190 CrPC that any person can set the law in
motion by making a complaint, as it prohibits the
court from taking cognizance of certain offences until
and unless a complaint has been made by some
particular authority or person. Other provisions in
CrPC like Sections 196 and 198 do not lay down any
rule of procedure, rather, they only create a bar that
unless some requirements are complied with, the
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court shall not take cognizance of an offence
described in those section s. (Vide Govind Mehta v.
State of Bihar [(1971) 3 SCC 329 : 1971 SCC (Cri)
608 : AIR 1971 SC 1708] , Patel Laljibhai Somabhai v.
State of Gujarat [(1971) 2 SCC 376 : 1971 SCC (Cri)
548 : AIR 1971 SC 1935] , Surjit Singh v. Balbir Singh
[(1996) 3 SCC 533 : 1996 SCC (Cri) 521] , State of
Punjab v. Raj Singh [(1998) 2 SCC 391 : 1998 SCC
(Cri) 642] , K. Vengadachalam v. K.C. Palanisamy
[(2005) 7 SCC 352 : 2005 SCC (Cri) 1673] and Iqbal
Singh Marwah v. Meenakshi Marwah [(2005) 4 SCC
370 : 2005 SCC (Cri) 1101] .)
29 . The test of whether there is evasion or non-
compliance with Section 195 CrPC or not, is whether
the facts disclose primarily and essentially an offence
for which a complaint of the court or of a public
servant is required. In Basir-ul-Haq v. State of W.B.
[(1953) 1 SCC 637 : AIR 1953 SC 293 : 1953 Cri LJ
1232] and Durgacharan Naik v. State of Orissa [AIR
1966 SC 1775 : 1966 Cri LJ 1491] , this Court held
that the provisions of this section cannot be evaded by
describing the offence as one being punishable under
some other sections of IPC, though in truth and
substance, the offence falls in a category mentioned in
Section 195 CrPC. Thus, cognizance of such an offence
cannot be taken by misdescribing it or by putting a
wrong label on it.
30 . In M.S. Ahlawat v. State of Haryana [(2000) 1 SCC
278 : 2000 SCC (Cri) 193 : AIR 2000 SC 168] this
Court considered the matter at length and held as
under : (SCC p. 282, para 5)
“5. … Provisions of Section 195 CrPC are
mandatory and no court has jurisdiction to take
cognizance of any of the offences mentioned
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therein unless there is a complaint in writing as
required under that section.”(emphasis added)
31 . In Sachida Nand Singh v. State of Bihar [(1998) 2
SCC 493 : 1998 SCC (Cri) 660] this Court while
dealing with this issue observed as under : (SCC pp.
497-98, para 7)
“7. … Section 190 of the Code empowers „any
Magistrate of the First Class‟ to take cognizance
of „any offence‟ upon receiving a complaint, or
police report or information or upon his own
knowledge. Section 195 restricts such general
powers of the Magistrate, and the general right of
a person to move the court with a complaint is to
that extent curtailed. It is a well-recognised canon
of interpretation that provision curbing the
general jurisdiction of the court must normally
receive strict interpretation unless the statute or
the context requires otherwise….”(emphasis
supplied)
32 . In Daulat Ram v. State of Punjab [AIR 1962 SC
1206 : (1962) 2 Cri LJ 286] this Court considered the
nature of the provisions of Section 195 CrPC. In the
said case, cognizance had been taken on the police
report by the Magistrate and the appellant therein had
been tried and convicted, though the public servant
concerned, the Tahsildar, had not filed any complaint.
This Court held as under : (AIR pp. 1207-08, paras 4-
5)
“4. … The cognizance of the case was therefore
wrongly assumed by the court without the
complaint in writing of the public servant, namely,
the Tahsildar in this case. The trial was thus
without jurisdiction ab initio and the conviction
cannot be maintained.
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5. The appeal is, therefore, allowed and the conviction
of the appellant and the sentence passed on him are set
aside.”(emphasis added)
33 . Thus, in view of the above, the law can be
summarised to the effect that there must be a
complaint by the public servant whose lawful order
has not been complied with. The complaint must be in
writing. The provisions of Section 195 CrPC are
mandatory. Non-compliance with it would vitiate the
prosecution and all other consequential orders. The
court cannot assume the cognizance of the case
without such complaint. In the absence of such a
complaint, the trial and conviction will be void ab
initio being without jurisdiction .” (emphasis supplied)
16. A perusal of the abovementioned Judgment shows that there must be
a complaint by the public servant whose lawful order has not been complied
with and the complaint must be in writing and that the provisions of Section
195 CrPC are mandatory and Non-compliance with it would vitiate the
prosecution and all other consequential orders. It is pertinent to mention that
the said Judgment arose when the principal offence was one under Section
302 IPC and along with it the accused therein was also charged with offence
under Section 188 IPC.
17. Learned Counsel for the Respondent also places reliance on the
Judgment passed by a co-ordinate Bench of this Court in Maneesh Goomer
v. State, 2012 SCC Online Del 66 , wherein it has been held that Section
174A IPC does not fall within the scope of Section 195(1)(a)(i) Cr.P.C. The
said Judgment has been followed by co-ordinate Benches of this Court in A.
Krishna Reddy v. CBI, 2017 SCC Online Del 7266 ; Purushottam Dev Arya
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v. CBI, 2017 SCC Online Del 7267 . He, therefore, states that the Judgment
passed by the co-ordinate Bench of this Court in Maneesh Goomer (supra)
would be binding on the present case.
18. At this juncture, it is pertinent to extract the relevant portions of the
Judgment passed by the co-ordinate Bench of this Court in Maneesh
Goomer (supra) and the same reads as under:
“ 9 . As regards the next contention of the Petitioner that
for a prosecution under Section 174-A IPC no
cognizance can be taken on a charge-sheet but on a
complaint under Section 195 Cr.P.C., it may be noted
that Section 174-A IPC was introduced in the Code
with effect from 23rd June, 2006. Section 195(1)
Cr.P.C. provides that no Court shall take cognizance
of offences punishable under Section 172 to 188 (both
inclusive) of the IPC or of the abatement, or attempt to
commit the said offences, except on the complaint in
writing of the public servant concerned or of some
other public servant to whom he is administratively
subordinate. Section 195 Cr.P.C. has not been
correspondingly amended so as to include Section 174-
A IPC which was brought into the Penal Code with
effect from 23rd June, 2006. The Legislature was
conscious of this fact and that is why though all other
offences under chapter X of the Criminal Procedure
Code are noncognizable, offence punishable under
Section 174-A IPC is cognizable. Thus the Police
officer on a complaint under Section 174-A IPC is
competent to register FIR and after investigation
thereon file a charge-sheet before the Court of
Magistrate who can take cognizance thereon. Thus, I
find no merit in the contention raised by the Learned
Counsel for the Petitioner.
10 . Adverting to the last contention of the learned
counsel for the Petitioner that the process under
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Section 82 Cr.P.C. was illegal as the proclamation was
not in the newspaper as directed by the Court but in
the other newspaper, it may be noted that Section 82(2)
Cr.P.C. provides for the procedure for publishing the
proclamation. Clause (i) of Sub-Section (2) is
mandatory in nature as it directs that the proclamation
shall be publically read in some conspicuous place of
the town in which the person ordinarily resides, shall
be affixed in some conspicuous place of the house in
which the person ordinarily resides, and shall be
affixed in some conspicuous part of the Court-house.
However, Clause (ii) of Section 82(2) Cr.P.C. is not
mandatory and it states that the Court may also if it
thinks fit direct a copy of the proclamation to be
published in a daily newspaper circulated in the place
in which such person ordinarily resides. Since Clause
(ii) is not mandatory in nature, the non-adherence to
the strict compliance thereon will not vitiate the
process under Section 82 Cr.P.C. The abovementioned
FIR for offence punishable under Section 174-A IPC is
an independent cause of action and merely because the
complaint case under Section 138 NI Act is settled,
there is no reason that the abovementioned FIR be also
quashed.”
19. It is pertinent to mention at this juncture that the Judgment passed by
the Apex Court in C. Muniappan (supra) has not been brought to the notice
of the Co-ordinate Bench of this Court.
20. Learned Counsel for the Appellant also places reliance on the
Judgment passed by other High Courts, namely, Sumit & Anr. v. State of
U.P. & Ors., 2024 SCC OnLine All 153 ; Pradeep Kumar v. State of Punjab
& Anr., 2023:PHHC:110479 ; Rajinder Ghazta v. State of H.P., 2024 SCC
Online HP 261 ; holding that the Judgment passed by the coordinate Bench
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of this Court in Maneesh Goomer (supra) does not lay down the correct
position of law qua Section 174A IPC and Section 195 Cr.P.C.
21. Learned Counsel for the Appellant also states that after insertion of
Section 174-A in I.P .C. as well as in First Schedule of Cr. P.C., further
amendment was also made in the year 2006 in Section 195(1)(b) Cr. P.C.,
but no amendment was made in Section 195(1)(a)(i) Cr. P.C. Therefore, at
the time of inserting Section 174-A in I.P.C. as well as in First Schedule of
Cr. P.C. after Section 174, legislature was well aware about the category of
offences u/s 195(1)(a) (i) Cr. P.C. and for this reason, while making
amendment in Section 195(1)(b) Cr. P.C. in 2006, Section 195(1)(a)(i) Cr.
P.C. was kept untouched knowingly by the legislature.
22. The said argument cannot be accepted for the reason that Section 195
Cr.P.C. includes all offences punishable under Sections 172-188 IPC (both
inclusive) and, therefore, insertion of Section 174A IPC does not warrant
any consequential amendment because Section 174A IPC would
automatically have been included under the ambit of Section 195 Cr.P.C. In
any event, it cannot be said that the Legislature has committed mistake by
keeping Section 195(1)(a)(i) Cr. P.C. untouched. The Apex Court in
Nalinakhya Bysack v. Shyam Sunder Haldar, (1953) 1 SCC 167, has held as
under:
“ 17 . It must always be borne in mind, as said by Lord
Halsbury in Commissioners for Special Purposes of
Income Tax v. Pemsel [Commissioners for Special
Purposes of Income Tax v. Pemsel, 1891 AC 531 at p.
549 (HL)] , that it is not competent to any court to
proceed upon the assumption that the legislature has
made a mistake. The court must proceed on the footing
that the legislature intended what it has said. Even if
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there is some defect in the phraseology used by the
legislature the court cannot, as pointed out in
Crawford v. Spooner [Crawford v. Spooner, (1846-49)
6 Moo PC 1 : (1846-50) 4 Moo IA 179 : 13 ER 582 :
1846 SCC OnLine PC 7] , aid the legislature's
defective phrasing of an Act or add and amend or, by
construction, make up deficiencies which are left in the
Act. Even where there is a casus omissus, it is, as said
by Lord Russell of Killowen in Hansraj Gupta v.
Official Liquidators of Dehra Dun-Mussoorie Electric
Tramway Co. Ltd. [Hansraj Gupta v. Official
Liquidators of Dehra Dun-Mussoorie Electric
Tramway Co. Ltd., (1932-33) 60 IA 13 : (1933) 37 LW
445 : AIR 1933 PC 63 : 1932 SCC OnLine PC 71] , for
others than the courts to remedy the defect.”
23. Similarly, the Apex Court in Nathi Devi v. Radha Devi Gupta, (2005)
2 SCC 271, has observed as under:
“ 13 . The interpretative function of the court is to
discover the true legislative intent. It is trite that in
interpreting a statute the court must, if the words are
clear, plain, unambiguous and reasonably susceptible
to only one meaning, give to the words that meaning,
irrespective of the consequences. Those words must be
expounded in their natural and ordinary sense. When
the language is plain and unambiguous and admits of
only one meaning, no question of construction of
statute arises, for the Act speaks for itself. Courts are
not concerned with the policy involved or that the
results are injurious or otherwise, which may follow
from giving effect to the language used. If the words
used are capable of one construction only then it would
not be open to the courts to adopt any other
hypothetical construction on the ground that such
construction is more consistent with the alleged object
and policy of the Act. In considering whether there is
ambiguity, the court must look at the statute as a whole
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and consider the appropriateness of the meaning in a
particular context avoiding absurdity and
inconsistencies or unreasonableness which may render
the statute unconstitutional.
14 . It is equally well settled that in interpreting a
statute, effort should be made to give effect to each and
every word used by the legislature. The courts always
presume that the legislature inserted every part thereof
for a purpose and the legislative intention is that every
part of the statute should have effect. A construction
which attributes redundancy to the legislature will not
be accepted except for compelling reasons such as
obvious drafting errors. (See State of U.P. v. Dr. Vijay
Anand Maharaj [AIR 1963 SC 946 : (1963) 1 SCR 1] ,
Rananjaya Singh v. Baijnath Singh [AIR 1954 SC 749 :
(1955) 1 SCR 671] , Kanai Lal Sur v. Paramnidhi
Sadhukhan [AIR 1957 SC 907 : 1958 SCR 360] ,
Nyadar Singh v. Union of India [(1988) 4 SCC 170 :
1988 SCC (L&S) 934 : (1988) 8 ATC 226 : AIR 1988
SC 1979] , J.K. Cotton Spg. and Wvg. Mills Co. Ltd. v.
State of U.P. [AIR 1961 SC 1170] and Ghanshyamdas
v. CST [AIR 1964 SC 766 : (1964) 4 SCR 436] .)
15 . It is well settled that literal interpretation should be
given to a statute if the same does not lead to an
absurdity.
16 . In Nasiruddin v. Sita Ram Agarwal [(2003) 2 SCC
577] this Court stated the law in the following terms:
(SCC p. 589, para 37)
“37. The court's jurisdiction to interpret a statute
can be invoked when the same is ambiguous. It is
well known that in a given case the court can iron
out the fabric but it cannot change the texture of
the fabric. It cannot enlarge the scope of
legislation or intention when the language of the
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provision is plain and unambiguous. It cannot add
or subtract words to a statute or read something
into it which is not there. It cannot rewrite or
recast legislation. It is also necessary to
determine that there exists a presumption that the
legislature has not used any superfluous words. It
is well settled that the real intention of the
legislation must be gathered from the language
used. It may be true that use of the expression
„shall or may‟ is not decisive for arriving at a
finding as to whether the statute is directory or
mandatory. But the intention of the legislature
must be found out from the scheme of the Act. It is
also equally well settled that when negative words
are used the courts will presume that the intention
of the legislature was that the provisions are
mandatory in character.”
17 . Even if there exists some ambiguity in the language
or the same is capable of two interpretations, it is trite
that the interpretation which serves the object and
purport of the Act must be given effect to. In such a
case the doctrine of purposive construction should be
adopted. (See Swedish Match AB v. Securities &
Exchange Board of India [(2004) 11 SCC 641 : (2004)
7 Scale 158] .)”
24. In Sri Ram Saha v. State of W.B., (2004) 11 SCC 497 , the Apex
Court has observed as under:
“ 19 . It is well-settled principle of interpretation that a
statute is to be interpreted on its plain reading; in the
absence of any doubt or difficulty arising out of such
reading of a statute defeating or frustrating the object
and purpose of an enactment, it must be read and
understood by its plain reading. However, in case of
any difficulty or doubt arising in interpreting a
provision of an enactment, courts will interpret such a
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provision keeping in mind the objects sought to be
achieved and the purpose intended to be served by
such a provision so as to advance the cause for which
the enactment is brought into force. If two
interpretations are possible, the one which promotes or
favours the object of the Act and purpose it serves, is to
be preferred. At any rate, in the guise of purposive
interpretation, the courts cannot rewrite a statute. A
purposive interpretation may permit a reading of the
provision consistent with the purpose and object of the
Act but the courts cannot legislate and enact the
provision either creating or taking away substantial
rights by stretching or straining a piece of legislation.
20 . This Court in CST v. Parson Tools and Plants
[(1975) 4 SCC 22 : 1975 SCC (Tax) 185] has taken the
view that if the legislature did not, after due
application of mind, incorporate a particular
provision, it cannot be imported into it by analogy,
observing that: (SCC p. 27, para 15)
“An enactment being the will of the legislature,
the paramount rule of interpretation, which
overrides all others, is that a statute is to be
expounded „according to the intent of them that
made it‟.”
21 . Further in para 16 of the said judgment, this Court
has observed thus: (SCC p. 28)
“16. If the legislature wilfully omits to
incorporate something of an analogous law in a
subsequent statute, or even if there is a casus
omissus in a statute, the language of which is
otherwise plain and unambiguous, the court is not
competent to supply the omission by engrafting on
it or introducing in it, under the guise of
interpretation, by analogy or implication,
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something what it thinks to be a general principle
of justice and equity. To do so „would be
entrenching upon the preserves of legislature‟ (at
p. 65 in Prem Nath L. Ganesh Dass v. Prem Nath
L. Ram Nath [AIR 1963 Punj 62 : 64 Punj LR
975] per Tek Chand, J.), the primary function of a
court of law being jus dicere and not jus dare.”
22 . Further para 23 of the same judgment reads: (SCC
p. 29)
“23. We have said enough and we may say it
again that where the legislature clearly declares
its intent in the scheme and language of a statute,
it is the duty of the court to give full effect to the
same without scanning its wisdom or policy, and
without engrafting, adding or implying anything
which is not congenial to or consistent with such
expressed intent of the lawgiver;”
23 . In Sankar Ram & Co. v. Kasi Naicker [(2003) 11
SCC 699] this Court in para 7 has stated thus: (SCC
pp. 704-05)
“7. It is a cardinal rule of construction that
normally no word or provision should be
considered redundant or superfluous in
interpreting the provisions of a statute. In the field
of interpretation of statutes, the courts always
presume that the legislature inserted every part
thereof with a purpose and the legislative
intention is that every part of the statute should
have effect. It may not be correct to say that a
word or words used in a statute are either
unnecessary or without any purpose to serve,
unless there are compelling reasons to say so
looking to the scheme of the statute and having
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regard to the object and purpose sought to be
achieved by it.” ”
25. In view of the abovementioned Judgments, it cannot be said that the
legislation has committed a mistake by not making any consequential
amendment in Cr.P.C. In fact, a co-ordinate Bench of this Court in
Amandeep Gill v. State (NCT of Delhi), 2024 SCC OnLine Del 6542 , has
observed as under:
“ 20 . Even though, the Supreme Court in C. Muniappan
(supra) does not deal with Section 174-A directly, it
would be difficult to draw an artificial distinction
between Section 174-A IPC and Section 188 IPC,
despite both being covered in the category of Sections
172-188, in Section 195(1)(a)(i) Cr.P.C. Maneesh
Goomer (supra) does not take into account the decision
in C. Muniappan (supra), which was probably not
brought to the attention of the Court and, therefore, in
Maneesh Goomer (supra) an independent analysis and
interpretation was done, reaching a conclusion that
since Section 174-A IPC was the only cognizable
offence in the category covered under Section 195
C.r.P.C., it was a conscious inclusion by the legislature
and, therefore, would stand on its own footing. It
would be difficult to support such an interpretation in
view of C. Muniappan (supra).
21 . To clarify the sequence of legislative activity in
regard to Section 195 Cr.P.C. and Section 174-A of
IPC it is to be noted that Section 195 & 195(1)(a)(i)
Cr.P.C. has been on the statute book since 1973 and
includes Section 172-188 IPC. By an amendment by
„Act 25 of 2005‟, Section 174-A was inserted w.e.f 23rd
June, 2006. Therefore, on the date when section 174-A
of IPC was inserted, if the legislature had to exclude it
out of purview of section 195 Cr.P.C, it would have
included that provision.
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22 . It is settled law that one cannot assume a careless
omission by the legislature and proceed to fill in by
judicial interpretation, a casus omissus. In any event
the rule of strict and literal interpretation of statutes
will prevail.
23 . This is further buttressed by the fact that now in
2023, when the legislature has introduced a
substantive new Act for substituting the IPC and the
Cr.P.C., being BNS and BNSS, it has consciously made
the exclusion for the equivalent provision of 174-A IPC
(being Section 209 BNS) from the equivalent provision
of Section 195 Cr.P.C (being Section 215 BNSS). Both
these new provisions of the new statutes are
reproduced as under:
Section 209 of The Bharatiya Nyaya Sanhita,
2023 („BNS‟):
“209. Whoever fails to appear at the specified
place and the specified time as required by a
proclamation published under sub-section (1) of
section 84 of the Bharatiya Nagarik Suraksha
Sanhita, 2023, shall be punished with
imprisonment for a term which may extend to
three years, or with fine, or with both, or with
community service, and where a declaration has
been made under sub-section (4) of that section
pronouncing him as a proclaimed offender, he
shall be punished with imprisonment for a term
which may extend to seven years and shall also be
liable to fine.”
Section 215 of The Bharatiya Nagarik Suraksha
Sanhita, 2023 („BNSS‟):
“215. (1) No Court shall take cognizance—
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(a) (i) of any offence punishable under sections
206 to 223 (both inclusive but excluding section
209) of the Bharatiya Nyaya Sanhita, 2023; or
(ii) of any abetment of, or attempt to commit, such
offence; or
(iii) of any criminal conspiracy to commit such
offence, except on the complaint in writing of the
public servant concerned or of some other public
servant to whom he is administratively
subordinate or of some other public servant who
is authorised by the concerned public servant so
to do;
(b) (i) of any offence punishable under any of the
following sections of the Bharatiya Nyaya
Sanhita, 2023, namely, sections 229 to 233 (both
inclusive), 236, 237, 242 to 248 (both inclusive)
and 267, when such offence is alleged to have
been committed in, or in relation to, any
proceeding in any Court; or
(ii) of any offence described in sub-section (1) of
section 336, or punishable under sub-section (2)
of section 340 or section 342 of the said Sanhita,
when such offence is alleged to have been
committed in respect of a document produced or
given in evidence in a proceeding in any Court; or
(iii) of any criminal conspiracy to commit, or
attempt to commit, or the abetment of, any offence
specified in sub-clause (i) or sub-clause (ii),
except on the complaint in writing of that Court or
by such officer of the Court as that Court may
authorise in writing in this behalf, or of some
other Court to which that Court is subordinate.
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(2) Where a complaint has been made by a public
servant or by some other public servant who has
been authorised to do so by him under clause (a)
of sub-section (1), any authority to which he is
administratively subordinate or who has
authorised such public servant, may, order the
withdrawal of the complaint and send a copy of
such order to the Court; and upon its receipt by
the Court, no further proceedings shall be taken
on the complaint:
Provided that no such withdrawal shall be
ordered if the trial in the Court of first instance
has been concluded.
(3) In clause (b) of sub-section (1), the term
“Court” means a Civil, Revenue or Criminal
Court, and includes a tribunal constituted by or
under a Central or State Act if declared by that
Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section
(1), a Court shall be deemed to be subordinate to
the Court to which appeals ordinarily lie from the
appealable decrees or sentences of such former
Court, or in the case of a Civil Court from whose
decrees no appeal ordinarily lies, to the Principal
Court having ordinary original civil jurisdiction
within whose local jurisdiction such Civil Court is
situate : Provided that—
(a) where appeals lie to more than one Court, the
Appellate Court of inferior jurisdiction shall be
the Court to which such Court shall be deemed to
be subordinate;
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(b) where appeals lie to a Civil and also to a
Revenue Court, such Court shall be deemed to be
subordinate to the Civil or Revenue Court
according to the nature of the case or proceeding
in connection with which the offence is alleged to
have been committed.”(emphasis added)
24 . It could be argued that, since now the legislature
has sought to exclude the equivalent of Section 174-A
IPC, the legislative intent even prior to BNS and BNSS
was the same, although not specified in the statute in
IPC/Cr.P.C. This, however, will remain in the realm of
legislative speculation and it would be encroaching
upon the legislative function by providing such
interpretation by judicial dicta, which is not
permissible. Reference may be made inter alia to
Supreme Court's opinion in Sangeeta Singh v. Union of
India, (2005) 7 SCC 484.
25 . The decision in Maneesh Goomer (supra) being
differed with, by another Coordinate Bench of this
Court in Sunil Tyagi (supra), but also specifically
differed with, by the Division Bench of High Court of
Allahabad, Single Bench of the Punjab and Haryana
High Court, Single Judge of the Madras High Court
and Single Judge of the High Court of Himachal
Pradesh, may not be considered as good law. ”
26. Though, the coordinate Bench of this Court in Amandeep Gill (supra)
has proceeded ahead to quash the complaint but this Court is of the opinion
that in view of the cleavage between Maneesh Goomer (supra) & Amandeep
Gill (supra) and in view of the law laid down by the Apex Court in C.
Muniappan (supra), this question must be referred to a larger Bench to
resolve the issue.
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27. Accordingly, the Registry is directed to place this matter before the
Hon’ble the Chief Justice for constitution of a Bench at the earliest to decide
the issue as to whether a cognizance of offences under Section 174A IPC
can be clubbed with the charges under other offences under the IPC and can
the Court proceed ahead without a complaint under Section 195 Cr.P.C or
not.
28. This Court is not going into the issue as to whether the Appellant
must be kept in detention centre or not and it is for the FRRO to take a
decision in this regard in accordance with law. It is always open for the
Appellant to challenge any decision taken by the FRRO by relying on the
Judgment passed by the co-ordinate Bench of this Court in Prince Ben
Nnaka v. State (NCT of Delhi), 2024 SCC OnLine Del 534 , wherein this
Court has observed as under:
“ 15 . Following the aforementioned judgments as well
as another judgment of this Court in Bathlomew
Lkechukwu @ Charles v. Union of India, W.P. (Crl.)
2146/2019, decided on 30.01.2020, another Co-
ordinate Bench of this Court in Charles Kingsley
Okakso (supra), held that once the Applicant was
released from prison after having undergone his
sentence, he could not be kept in a detention centre
indefinitely. The Court directed the release of the
Applicant forthwith from the detention centre and
further directed that the FRRO shall take a decision
with regard to the visa application of the Applicant
taking into account that he may be wanted in another
criminal cases in India. Relevant paragraphs are as
under:—
“12. In Bathlomew Lkechukwu @ Charles v.
Union of India, W.P. (Crl.) 2146/2019, a Co-
ordinate Bench of this Court vide order dated
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30th January, 2020, while dealing with a foreign
national who was being kept in a detention centre,
despite having been acquitted of the charges,
observed that the foreigner could not be kept in a
detention centre indefinitely. The relevant
observations of the Court are set out below:
“3. Plainly, the petitioner cannot be detained
indefinitely. Even if it is found that the petitioner's
presence is required in India on account of the
appeal filed by NCB, an appropriate visa is
required to be issued to him.
4. The petitioner has been in the said deportation
camp since 03.12.2018. The petitioner is either
required to be issued a visa or is required to be
deported. In any event, he cannot remain in a
deportation camp indefinitely.”(Emphasis
Supplied)
13 . In light of the aforesaid judgments, once the
applicant has been released from prison after having
undergone his sentence, he cannot be kept in a
detention centre. Continuing to hold the applicant in a
detention centre would amount to violation of his
rights under Article 21 of the Constitution of India. The
applicant cannot be detained in a detention centre
indefinitely.
14 . Taking into account that the applicant may be
wanted in other criminal cases in India and having
regard to the other facts and circumstances, the FRRO
shall take a decision with regard to the visa
application of the applicant.
15 . It is directed that the applicant be forthwith
released from the detention centre. At the time of his
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release, the applicant shall furnish his permanent
address and mobile number(s) to the FRRO.”
16 . From a conspectus of the aforementioned
judgments, the only inexorable conclusion that can be
drawn is that Courts cannot, as a part of the order
enlarging a foreign national on bail or
acquitting/discharging or as in this case convicting but
sentencing for the period of imprisonment undergone,
simultaneously pass a direction to detain the person at
a deportation centre. As observed in Emechere
Maduabuchkwu (supra), detention centre is not a place
for judicial custody but a place where foreign national
is detained on an Executive order and this is the
prerogative of the Competent Authority under the
Foreigners Act. In light of this observation of the Co-
ordinate Bench coupled with the observation that
Courts cannot as a part of enlarging foreign national
on bail direct the person to be sent to a detention
centre, the argument of the learned ASC that there is
no challenge to the order dated 07.04.2021 passed by
learned M.M., South District, Saket Courts has no
merit. Once the Petitioner was enlarged on bail, he
cannot be detained without cause and due process of
law. Pendency of trial in case FIR No. 481/2016 also,
in my view, cannot be a reason enough to detain the
Petitioner, as he is yet to be proved guilty post-trial.
Therefore, counsel for the Petitioner is right in
contending that the detention of the Petitioner in the
deportation centre, in the present circumstances of this
case, is illegal.
17 . In view of the aforementioned facts and the
judgments, it is directed that Petitioner be released
forthwith from the deportation centre, subject to the
Petitioner furnishing his permanent address and
mobile number(s) to FRRO. The mobile phone shall be
kept operational and active at all times. Petitioner will
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continue to report to the local police station every
Saturday at 10 : 00AM. Since the Court is apprised
that passport of the Petitioner, which is valid till
27.03.2028, is lying deposited with the Trial Court, no
further direction is required in this respect at this
stage. It is an uncontroverted position that Petitioner
has already furnished bail bonds in the sum of Rs.
20,000/- to the satisfaction of the Trial Court. Insofar
as the visa of the Petitioner is concerned, it is stated by
Ms. Richa Dhawan, on instructions, from the officer of
the FRRO department, present in Court, that Petitioner
will have to make a fresh application as the earlier
application filed by him is no longer valid in view of
the rule position that the application remains valid
only upto four months from the date of application.
Counsel for the Petitioner submits that Petitioner will
make a fresh application for visa. If and when such an
application is filed by the Petitioner, the decision will
be taken by the FRRO, in accordance with law. ”
29. The Registry is directed to place the matter before Hon'ble the Chief
Justice for constituting an appropriate larger Bench to consider the issue.
SUBRAMONIUM PRASAD, J
NOVEMBER 26, 2024
Rahul
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