Foreigners Act | Only 'Keeper' Of Premises Can Be Prosecuted For Failure To Report Foreign National's Stay: J&K&L High Court

The Jammu & Kashmir and Ladakh High Court has held that criminal liability under Section 7 of the Foreigners Act, 1946 cannot be fastened merely because a person is a trustee, office bearer or member of an organisation owning or managing premises where a foreign national stayed.The Court held that the statutory obligation under Section 7 is specifically cast upon the "keeper" of the premises and, in the absence of allegations demonstrating that the accused acted in that capacity or was responsible for discharging the statutory duties under the provision, prosecution cannot be sustained. The Court was hearing a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita seeking quashing of an FIR registered under Section 14 read with Section 7 of the Foreigners Act, 1946. The petitioner challenged the FIR on the ground that he was merely a member of the Board of Trustees of an Ashram Trust and neither the keeper of the premises nor responsible for maintaining records or furnishing information regarding the stay of a foreign national. A Bench of Justice M. A. Chowdhary observed, "The provision cannot be invoked merely on the basis that a person is a trustee, office bearer, or member of an organization owning or managing the premises, unless specific allegations demonstrate that such person was acting in the capacity of a 'keeper' or was responsible for the obligations contemplated under the said provision." In the instant case an FIR was registered after the police received a communication regarding the alleged concealment of information relating to the stay of an Argentine national at the Jammu branch of Ishwar Ashram Trust during 2021-2022. According to the allegations, the Ashram had failed to furnish the mandatory information regarding the foreign national through the online C-Form mechanism under the Immigration, Visa, Foreigners Registration and Tracking (IVFRT) system, as required under the Foreigners Act and the Registration of Foreigners Rules. The petitioner, who was stated to be a member of the Management Committee of the Trust, was arrayed as an accused on the allegation that he was associated with the management of the institution. The police alleged that, owing to his position in the Trust, he had committed offences punishable under Sections 7 and 14 of the Foreigners Act. However, the record also disclosed that the Jammu Ashram was being looked after by a caretaker. Seeking quashing of the FIR, the petitioner contended that he was merely one of the trustees of the Trust and neither the keeper of the premises nor responsible for day-to-day management, accommodation of visitors or maintenance of statutory records. He argued that Section 7 imposes obligations exclusively upon the "keeper" of the premises and not upon every trustee or member of the management committee. The petitioner further submitted that continuation of criminal proceedings despite absence of the essential ingredients of the offence would amount to abuse of the process of law. The respondents opposed the petition, submitting that the petitioner's association with the Trust managing the Ashram could not be ruled out and that the High Court ought not to interfere with the investigation at the threshold while exercising its inherent jurisdiction. Court's Observations:The Court first examined the scope of Sections 7 and 14 of the Foreigners Act. Referring to the statutory scheme, the Court observed that Section 7 specifically casts obligations upon the keeper of premises where lodging or sleeping accommodation is provided, including the duty to furnish information regarding foreigners accommodated in such premises, maintain prescribed records and make them available for inspection. Interpreting the provision, the Court held,"the liability under Section 7 of the Foreigners Act is attracted against a person who falls within the category of a 'keeper' of the premises being subject to the statutory obligations prescribed under the provision." It further clarified,"The provision cannot be invoked merely on the basis that a person is a trustee, office bearer, or member of an organization owning or managing the premises, unless specific allegations demonstrate that such person was acting in the capacity of a 'keeper' or was responsible for the obligations contemplated under the said provision." Applying the above principle to the facts of the case, the Court found that the FIR did not contain any allegation that the petitioner was the keeper of the Ashram premises where the foreign national had stayed. Nor was there any allegation that he was responsible for providing accommodation, maintaining records of the foreign national's stay or performing any statutory obligation imposed upon a keeper under Section 7 of the Act. The Court further emphasised that the mere fact that the petitioner happens to be one of the members of the Board of Trustees of the Trust cannot, by itself, result in criminal liability. Criminal liability is...

Foreigners Act | Only 'Keeper' Of Premises Can Be Prosecuted For Failure To Report Foreign National's Stay: J&K&L High Court

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Foreigners Act | Only 'Keeper' Of Premises Can Be Prosecuted For Failure To Report Foreign National's Stay: J&K&L High Court

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