The Madhya Pradesh High Court has quashed an FIR against an Afghan student who overstayed his stay in the country, observing that the basic charge against him is for overstaying, which would continue if the FIR is not quashed. [2026 LiveLaw (MP) 457]

The division bench of Chief Justice Alpesh Y Kogje and Justice Vivek Jain observed:

"basic charge against him is of overstay and now continuation of the criminal proceedings against him would only prolong the over stay which may not be in the interest of justice looking to the peculiar facts of the case. At the cost of repetition, we may reiterate that neither the mode of entry as well as the purpose of entry was unlawful nor any unlawful activity was indulged during the course of stay. The appellant is now willing to return back to his native country, hence, it is a fit case where quietus should be given to the matter and he be permitted to return to his native country by quashing the FIR under Section 14 of the Foreigners Act wherein the only charge is of over stay in India". 

An appeal was filed against the order of the Single Judge wherein his writ petition was dismissed. He had filed a writ petition challenging the Leave India Notice of January 8, 2025, issued to him and prayed for quashing of the FIR filed on March 3, 2025, arising out of non-compliance with the said notice. 

The counsel for the appellants submitted that the challenge made in the writ petition was to the Leave India Notice issued, which was not complied with by the appellant. He argued that the FIR was challenged consequent to the challenge to the Leave India Notice. It was submitted that he no longer wishes to reside in India and wishes to go back to his home country, Afghanistan. 

It was argued that despite being willing to leave India, he is unable to do so on account of the pendency of the FIR and consequential proceedings, as well as the prosecution against him under Section 14 of the Foreigners Act, which prescribes penalties against foreigners who contravene the provisions of the Act or visa regulations. 

The court took the aforementioned submission only if the appellant filed an affidavit within a day to the Registry expressing his intention to unconditionally depart to his native country. 

The court noted that the appellant had been staying in India on his student visa since December 2019. On account of Covid 19, he was unable to return to his native country. Consequently, he secured admission to a master's programme and his visa was regularly extended up to 2024. 

Thereafter, the appellant secured employment at the University. The court also noted that the appellant continued to reside in India following the change of regime in Afghanistan, where the Taliban Led goverment replaced the democratically elected one. 

Given that the Taliban-led government does not promote journalists, the appellant, being a qualified journalist, apprehended persecution at the hands of the State if he returned to Afghanistan. 

In view of these, the appellant approached the United Nations High Commissioner for Refugees and was issued a Blue Card confirming his registration as an asylum seeker, with his application for refugee status under consideration. He was given a refugee card valid until February 28, 2027. 

The court further noted that the appellant had initially been residing in India on a student visa, which was extended from time to time only till March 24, 2024 and no further extension was granted. Although his passport expired, it was subsequently renewed and is now valid until June 20, 2027. 

Meanwhile, the appellant received communication from the Foreigners Regional Registration Office (FRRO) directing him to apply for an exit permit. However, anticipating he would be granted a long-term visa in view of his refugee status recognised by UNHCR, he did not apply for an exit permit and continued his request for a long-term visa. 

The appellant's failure to pay the prescribed exit permit fee was treated as intentional overstaying in India, amounting to a violation of Section 14 of the Foreigners Act. Consequently, the Deputy Commissioner of Police issued a Leave India Notice. As he failed to comply, an FIR was filed against him. 

The court highlighted, "The appellant is not being allowed to leave India only because criminal prosecution under Section 14 of Foreigners Act, 1946 is pending against him. It has been urged before this Court that the appellant is a young man about 28 years of age and he having completed education in India may be allowed to leave India by giving quietus to the matter as otherwise he has not done any unwanted activity in India. He remained as a responsible civilian in India and completed his education here. Only the pendency of FIR under Section 14 of Foreigner Act is becoming impediment to his exit from India. He is being retained in India only to face the prosecution, and may be, to serve out the sentence in case he is convicted". 

Referring to the Karnataka High Court order in the case of Junia Erastus Mayemba v. Bureau of Immigration, the court reiterated that as the petitioner is ready to leave the country, it is appropriate that he is sent out of the country at the earliest, especially since he did not indulge in any criminal activities or enter India in any unlawful manner. 

Emphasising that "continuation of prosecution of the appellant in this case would only prolong his stay in India, which neither the appellant wants, nor the Government of India wants", the bench quashed the FIR and allowed the appeal with specific directions. 

For Appellant: Advocates Sankalp Kochar and Shri Prakahar Shukla

For Union: Additional Solicitor General Sunil Jain with Advocate Sanjay Kumar Malvi

For State: Additional Advocate General B.D. Singh

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