Lydia Amolo Vihenda Agenda, Mercy Akinyi Onyango & Mwikya Josephine Sololo v. State of Kerala and Foreign Regional Registration Officers (FRRO)

Crl.M.C.No.8280/2024 1 ``` 2025:KER:28376 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE V.G.ARUN ``` ``` TUESDAY, THE 25[TH] DAY OF MARCH 2025 / 4TH CHAITHRA, 1947 ``` ``` CRL.MC NO. 8280 OF 2024 ``` ``` CRIME NO.694/2024 OF Ernakulam North Police Station, ``` ## **`Ernakulam`** ## **`PETITIONERS:`** - **`1 LYDIA AMOLO VIHENDA AGED 28 YEARS`** ``` D/O JACK VIHENDA AND JOYCE ACHIENG, PASSPORT NO. AK1372115. NOW AT WOMENS JAIL VIYOOR,THRISSUR, PIN - 680010 ``` ``` 2MERCY AKINYI ONYANGO AGED 25 YEARS D/O JAMES ONYANGO AND PRISCILLAH ONYANGO, HOMABAY, MANYANJA ROAD, UMOJA, NAIROBI, KENYA, PASSPORT NO. BK001641. NOW AT WOMENS JAIL VIYOOR,THRISSUR, PIN - 680010 ``` ``` 3MWIKYA JOSEPHINE SOLOLO AGED 33 YEARS NZAW, MATILIKU, KENYA, PASSPORT NO. AK1355989. NOW AT WOMENS JAIL VIYOOR,THRISSUR, PIN - 680010 ``` Crl.M.C.No.8280/2024 2 **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:28376`** ``` BY ADVS. JAYAKRISHNAN U AEBLE BENNY(K/000642/2024) SRUTHY XAVIER(K/002182/2022) ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2FOREIGN REGIONAL REGISTRATION OFFICERS (FRRO) REPRESENTED BY ITS AURHORISED OFFICER COCHIN INTERNATIONAL AIRPORT NEDUMBASSERY, ERNAKULAM, PIN - 683111 ``` ## **`BY ADV MINI GOPINATH`** ## **`OTHER PRESENT:`** ``` SMT. PUSHPALATHA. M.K, SR.PP. DSGI IN CHARGE T.C. KRISHNA, SMT. MINI GOPINATH FOR CGC. ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON ``` ``` 27.01.2024, THE COURT ON 25.03.2025 PASSED THE FOLLOWING: ``` Crl.M.C.No.8280/2024 3 **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:28376`** ## **V.G.ARUN, J** **= = = = = = = = = = = = = = = = = Crl.M.C.No.8280 of 2024 = = = = = = = = = = = = = = = = = = Dated this the 25[th] day of March, 2025** ## **ORDER** The petitioners, who are Kenyan nationals, are arrayed as accused Nos.1 to 3 in Crime No.694 of 2024 registered at the Ernakulam Town North Police Station for offences punishable under Sections 14(a), 14(b) and 14A(b) of the Foreigners Act, 1946 and Section 12(1)(c) of the Passports Act, 1967. The petitioners were arrested on 06.07.2024 and are continuing in custody. The crime is registered on the following allegations; The 1[st] petitioner, after arriving in India on an e-medical visa valid up to 20.10.2023 had overstayed for a period of 319 days as on the date of her arrest. The 2[nd] petitioner arrived on the strength of an e-tourist visa valid up to 20.12.2017 and overstayed for 2449 days. The 3[rd] petitioner arrived on the Crl.M.C.No.8280/2024 4 **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:28376`** strength of e-tourist visa valid up to 28.07.2024 and overstayed for a period of 330 days. Even though the petitioners were directed to produce the documents authorising their stay in India, they failed to do so. 2. Learned counsel for the petitioners contended that the offence under Section 14A(b) of the Foreigners Act is not attracted against the petitioners since they had entered India with valid visas and passports. They cannot therefore be categorized as infiltrators, on which event alone Section 14A(b) will come into play. According to the counsel, overstay by a foreigner would only attract Section 14(a) of the Foreigners Act. In support of his contention, reliance is placed on the decision of this Court in **Egadwa Mercy Adamba v. State of Kerala** [2024 (6) KHC 108]. 3.Learned Senior Panel Counsel submitted that the prosecution under Section 14A(b) of the Foreigners Act is valid since the petitioners had overstayed in India for long periods. According to the Senior Panel Counsel, a conjoint reading of Crl.M.C.No.8280/2024 5 **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:28376`** Sections 14A of the Foreigners Act, Paragraph 7 of the Foreigners Order and Rules 6 and 7 of the Registration of Foreigners Rules, 1992 makes it clear that Section 14A not only regulates the entry of foreigners into India, but also deals with their stay in India. 4. Learned Public Prosecutor endorsed the arguments of the Senior Panel Counsel and submitted that, no intervention is warranted since the crime is still under investigation. 5. The primary contention is that the offence under Section 14A(b) of the Foreigners Act is not attracted, the petitioners having entered India lawfully. While addressing the contention, it has to be borne in mind that the Foreigners Act, 1946 was introduced with the objective of conferring the Central Government with powers to regulate and control the entry of foreigners to India, their presence therein and departure therefrom. Section 14 of the Foreigners Act provides penalty for contravention of provisions of the Act, while Section 14A deals with penalty for entry in restricted areas etc. For Crl.M.C.No.8280/2024 6 **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:28376`** ease of understanding, Section 14 of the Foreigners Act is extracted below; “ **14.Penalty for contravention of provisions of the Act,etc. -** Whoever.- - (a) remains in any area in India for a period exceeding the period for which the visa was issued to him; - (b) does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder; (c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if he has entered into a bond in pursuance of clause (f) of sub-section (2) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting Court why such penalty should not be paid by him. “ The expression etc. used at the end of the heading shows that the enumeration is not exhaustive and there are other items that could be included. Therefore, the provision is not intended to deal with entry in restricted areas alone. Crl.M.C.No.8280/2024 7 **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:28376`** Bifurcation of Section 14A into sub-sections (a) and (b) makes the position explicit. While sub-section (a) deals with entry into any 'restricted area' without permit from the authority and remaining in such area beyond the period for stay specified in such permit, sub-section (b) pertains to entry or stay in 'any area' in India without the valid documents required for such entry under the provisions of any order made under the Act. The power to issue the 'Order' prohibiting, regulating or restricting the entry of Foreigners into India or their departure presence or continued presence is conferred by Section 3 of the Act. The Foreigners Order, 1948 is issued in exercise of that power. 8. As per Paragraph 7 of the Foreigners Order, every foreigner who enters India on the authority of a visa has to obtain a permit indicating the period during which he is authorised to remain in India and the place or places for stay in India, if any specified in the visa, from the Registration Officer. Rule 6 of the Registration of Foreigners Rules, 1992 stipulates Crl.M.C.No.8280/2024 8 **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:28376`** that every foreigner entering India with a visa valid for more than one hundred and eighty days should submit the report under Rule 7 to the Registration Officer, within two weeks of expiry of the one hundred and eighty days. Once the registration report is submitted by the foreigner following the prescribed procedure, the Registration Officer will issue the certificate of registration in Part III of Form A, which shall be valid so long as the foreigner does not depart from India. 9. The permit under Paragraph 7 of the Foreigners Order and the certificate of registration under Rule 7 of the Registration of Foreigners Rules are the valid documents mentioned in Section 14-A(b) of the Act. Admittedly, the petitioners overstayed in India for much more than 180 days. If during such stay, they did not possess the aforementioned documents, petitioners can be prosecuted under Section 14A(b) also. In **Egadwa Mercy Adamba** (supra), the petitioners had entered India with valid documents. It was therefore held that Section 14(a) of the Act alone would apply and Section 14A Crl.M.C.No.8280/2024 9 **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:28376 ``` would come into play only if the initial entry into the country is without any valid document. 10. Going by the plain wordings of Section 14A, not only entry without permit, but remaining in an area after expiry of the permit and staying in an area without the valid documents required for such stay, are made punishable. To sum up, even if the entry of a foreigner to India is lawful, his stay without the valid documents required for such stay will attract Section 14A(b). As the judgment in **Egadwa Mercy Adamba** (supra) is seen rendered without considering the impact of Paragraph 7 of the Foreigners Order and Rules 6 and 7 of the Registration of Foreigners Rules, the decision is _per incuriam_ to that extent. For the aforementioned reasons, this Crl.M.C is dismissed. **==> picture [25 x 12] intentionally omitted <==** **V.G.ARUN, JUDGE** sj Crl.M.C.No.8280/2024 10 **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:28376`** ## **`APPENDIX OF CRL.MC 8280/2024`** ``` PETITIONER ANNEXURES ``` ``` Annexure-1CERTIFIED COPY OF THE FIR DATED 06.07.2024 IN CRIME NO. 694/2024 OF ERNAKULAM TOWN NORTH POLICE STATION Annexure- 2TRUE COPY OF THE REMAND REPORT DATED 07.07.2024 ``` ``` RESPONDENT ANNEXURES ``` ``` Annexure R2(b)The true copy of the Passport and Visa of the 1st Petitioner Annexure R1(a)A true copy of Ascot Hotel GRC Annexure R2(d)A true copy of form C Application ID NO. 0606246752EH ``` ``` Annexure R2(e)A true copy of form C Application ID NO. 060624S0NA5F Annexure R2(c)The true copy of the Passport and Visa of the 2nd Petitioner ```